Docket No. 486

In the Matter of Frank A. Emilio

May 12, 1994

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and former
Representative Frank A. Emilio ("Rep. Emilio") pursuant to s.5 of
the Commission's Enforcement Procedures. This Agreement
constitutes a consented to final order enforceable in the Superior
Court, pursuant to G.L. c. 268B, s.4(j).

On June 22, 1993, the Commission initiated, pursuant to G.L.
c. 268B, s.4(a), a preliminary inquiry into allegations that Rep.
Emilio had violated the conflict of interest law, G.L. c. 268A.
The Commission has concluded its inquiry and, on January 25, 1994,
voted to find reasonable cause to believe that Rep. Emilio violated
G.L. c. 268A, s.3.

The Commission and Rep. Emilio now agree to the following
facts and conclusions of law:

1. Rep. Emilio served in the state legislature for five
terms from January 1981 to January 1991.

2. During his ten years in the House of Representatives,
Rep. Emilio served on the Joint Committee on Insurance. The
majority of bills dealing with the regulation of the insurance
industry are assigned to the Joint Committee on Insurance. As an
Insurance Committee member, Rep. Emilio participated in the
hearings and committee votes on hundreds of insurance bills. He
also voted on such bills if they reached the House floor.

3. Rep. Emilio sponsored or co-sponsored dozens of bills
affecting the insurance industry.

4. During the period relevant here, F. William Sawyer
("Sawyer") was the senior John Hancock Mutual Life Insurance Co.,
Inc. ("Hancock") lobbyist responsible for Massachusetts
legislation. He was also a registered legislative agent (for
Hancock) in Massachusetts. Hancock, a Massachusetts corporation,
is the nation's sixth largest life insurer doing business in all
50 states. It offers an array of
Page 658

life, health and investment products. As a Massachusetts
domiciliary, it is more subject to Massachusetts laws and
regulations than to those of any other state.

5. During the period relevant here, William Carroll
("Carroll") was a registered legislative agent for the Life
Insurance Association of Massachusetts ("LIAM"). LIAM is a trade
association of life insurance companies doing business in

6. During the period relevant here, Edward Dever ("Dever")
was a Massachusetts registered legislative agent for the
Massachusetts Life Insurance Company.

7. During the period relevant here, Alvaro Sousa ("Sousa")
was a Massachusetts registered legislative agent for the New
England Mutual Life Insurance Company.

8. During the period relevant here, John Spillane
("Spillane") was a Massachusetts registered legislative agent for
the Paul Revere Insurance Companies.

9. During the period relevant here, James T. Harrington
("Harrington") served as the vice-president for the American
Insurance Association, a nationwide trade association of 250
property and casualty insurance companies. Harrington was also a
Massachusetts registered legislative agent.

10. Rep. Emilio knew Sawyer, Carroll, Sousa, Dever, Spillane,
Harrington and Joseph McEvoy ("McEvoy") were lobbyists representing
the insurance industry. On occasion, these individuals testified
before the Insurance Committee and lobbied Rep. Emilio regarding
various pieces of legislation. Additionally, Rep. Emilio sponsored
a number of bills at the request of Sawyer, Spillane and McEvoy.[1]

11. Lobbyists are employed to promote, oppose or influence

12. One way in which some lobbyists further their legislative
goals is to develop or maintain goodwill and personal relationships
with legislators to ensure effective access to them. Some
lobbyists entertain legislators through meals, drinks, golf and
tickets to sporting events in order to develop the desired goodwill
and personal relationships.

13. During August 20 - 23, 1988, Rep. Emilio and his family
attended a Council of State Governments conference in Burlington,
Vermont. On Sunday August 21, 1988, Rep. Emilio played golf with
Sawyer. Sawyer paid $80 for their golf and entertainment expenses.
On Monday evening, August 22, 1988, Sawyer hosted Rep. Emilio and
his wife and a Vermont legislator and his guest to a dinner at the
Ice House restaurant. The cost of the dinner was $142.46. Rep.
Emilio's pro rata share of the golf and dinner expenses was
approximately $96.98.

14. From November 28 to November 30, 1988, Rep. Emilio and
his spouse attended a Council of Insurance Legislators conference
in Atlanta, Georgia. On the evening of November 29, 1988, Sawyer
hosted Rep. Emilio and his wife and four other legislators and
their guests to a dinner at Pano & Paul's Restaurant. The cost of
the dinner was $997.97. The Emilios' pro rata share of the cost of
the dinner was approximately $181.41.

15. Hancock maintains a corporate box at the Boston Red Sox
600 Club. Sawyer invited Rep. Emilio to be his guest in the 600
Club for three Red Sox games on June 13, 1989, April 9, 1990 and
August 21, 1990. The cost of the box to Hancock was $75 a game,
per seat. At the ball games, Sawyer provided Rep. Emilio with
drinks and meals. Rep. Emilio's share of the dinner and drink
bills was $3.93 for the June 13, 1989 game, $25.71 for the April 9,
1990 game, and $29.04 for the August 21, 1990 game. The total
value of the tickets, drinks and meals provided to Rep. Emilio at
the ball games was $283.68.

16. During November 24-28, 1990, Rep. Emilio and his spouse
were in Walt Disney World, Florida. Rep. Emilio had registered to
attend an educational conference sponsored by the Conference of
Insurance Legislators.[2] On the evening of November 24, 1990,
Rep. Emilio and his spouse, along with approximately eighteen other
lobbyists, legislators (from a number of states) and their guests
ate at the Stouffer Hotel in Orlando. The cost of the meal was
$2,243.97. The Emilios' pro rata share of the dinner expenses was
approximately $117.00. Carroll hosted the dinner, and LIAM paid
for the meals. On that same day, Sawyer entertained Rep. Emilio
and two other legislators at the Grand Cypress Golf Club. The cost
of this golf and entertainment was $468.89. Rep. Emilio's pro rata
share of the golf and entertainment was $117.12.

17. On November 28, 1990, Sawyer provided Epcot Center
tickets and lunch to the Emilios and two other legislators and
their spouses. According to Sawyer's expense records, the combined
cost of the tickets and lunches was $246.06. The Emilios' pro rata
share of the tickets and lunches was approximately $61.00. On the
evening of November 28, 1990, Rep. and Mrs. Emilio, along with
approximately ten other

Page 659

legislators, lobbyists and their guests ate at the Buena Vista
Palace at Walt Disney World. The cost of the dinner was $342.48.
The Emilios' pro rata share of the dinner was approximately $63.00.
Sawyer paid for the dinner.

18. On January 8, 1991, Sawyer, Dever, Carroll, Spillane,
Harrington and Sousa hosted a private testimonial dinner for Rep.
Emilio at Joe Tecce's Restaurant in Boston. Several days earlier,
Rep. Emilio had left the legislature. According to an internal
Hancock memorandum written by Sawyer, Rep. Emilio's departure from
the State House was "notable" as he had been "very helpful to John
Hancock." The lobbyists gave Rep. Emilio a $404.25 set of golf
clubs. Rep. Emilio's share of the dinner expenses was $60.11.
Thus, Rep. Emilio received a total of $464.36 in gratuities.

19. Section 3(b) of G.L. c. 268A prohibits any present or
former state employee from directly or indirectly receiving
anything of substantial value for or because of any official act or
act within his official responsibility performed or to be performed
by him.

20. Massachusetts legislators are state employees.

21. Anything worth $50 or more is of substantial value for
s.3 purposes.[3]

22. By accepting a total of $1,384.00 in meals, golf, gifts
and sports tickets from lobbyists all while Rep. Emilio was in a
position, or had recently been in a position, to take official
actions which could benefit, and in some instances did benefit,
those lobbyists, Rep. Emilio received items of substantial value
for or because of official acts or acts within his official
responsibility performed or to be performed by him. In doing so,
he violated G.L. c. 268A, s.3(b).[4]

23. The Commission is aware of no evidence that the
gratuities or gifts referenced above were provided to Rep. Emilio
with the intent to influence any specific act by him as a
legislator or any particular act within his official
responsibility. The Commission is also aware of no evidence that
Rep. Emilio took any official action concerning any proposed
legislation which would affect any of the registered Massachusetts
lobbyists in return for the gratuities or gifts. However, even
though the gratuities were only intended to foster official
goodwill and access, they were still impermissible.[5]

24. Rep. Emilio has fully cooperated with the Commission
throughout its investigation.

In view of the foregoing violations of G.L. c. 268A by Rep.
Emilio, the Commission has determined that the public interest
would be served by the disposition of this matter without further
enforcement proceedings, on the basis of the following terms and
conditions agreed to by Rep. Emilio:

(1) that Rep. Emilio pay to the Commission the sum of
four thousand, two hundred dollars ($4,200.00)[6] as a
civil fine for violating G.L. c. 268A, s.3(b); and

(2) that Rep. Emilio waive all rights to contest the
findings of fact, conclusions of law and terms and
conditions contained in this Agreement and in any related
administrative or judicial proceedings to which the

Commission is or may be a party.


[1] For example, in 1990 Rep. Emilio sponsored H. 553 on McEvoy's
behalf. This bill sought to enhance privacy for insurance
consumers. The Commissioner of Insurance and the Civil Liberties
Union had filed competing bills that were disfavored by the
insurance companies. Also in 1990, Rep. Emilio sponsored H. 734 on
Sawyer's behalf. House Bill 734 sought to permit insurers to value
real estate ownership interests at their assessed value. House
Bill 734 was approved by the legislature and signed into law on
September 18, 1990.

[2] Rep. Emilio registered for each of the three conferences
mentioned in this agreement. Rep. Emilio's practice was to attend
approximately one-half of the workshops and presentations scheduled
at each conference.

[3] See Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587
(1976); EC-COI-93-14.

[4] For s.3 purposes, it is unnecessary to prove that the
gratuities given were generated by some specific identifiable act
performed or to be performed. As the Commission explained in
Advisory No. 8 (issued May 14, 1985) prohibiting private parties
from giving free tickets worth $50 or more to public employees who
regulate them,

Even in the absence of any specifically identifiable
matter that was, is or soon will be pending before the
official, s.3 may apply. Thus, where there is no prior
social or business relationship between the giver and the
recipient, and the recipient is a public official who is
in a position to use [his] authority in a manner which
could affect the giver, an inference can be drawn that
the giver was seeking the goodwill of the official
because of a perception by the giver that the public
official's influence could benefit the giver. In such
a case,

Page 660

the gratuity is given for his yet unidentifiable "acts to
be performed."

Specifically, s.3 applies to generalized goodwill-engendering
entertainment of legislators by private parties, even where no
specific legislation is discussed. In re Flaherty, 1991 SEC 498,
issued December 10, 1990 (majority leader violates s.3 by accepting
six Celtics tickets from billboard company's lobbyists). In re
Massachusetts Candy and Tobacco Distributors, Inc., 1992 SEC 609
(company representing distributors violates s.3 by providing a free
day's outing [a barbecue lunch, golf or tennis, a cocktail hour and
a clam bake dinner], worth over $100 per person, to over 50
legislators, their staffers and family members, with the intent of
enhancing the distributors' image with the Legislature and where
the legislators were in a position to benefit the distributors).

Section 3 applies to meals and golf, including those occasions
motivated by business reasons, for example, the so-called "business
lunch". In re U.S. Trust, 1988 SEC 356. Section 3 also applies to
entertainment gratuities of $50 or more even in connection with
educational conferences. In re Stone & Webster, 1991 SEC 522, and
In re State Street Bank, 1992 SEC 582.

Rep. Emilio has argued that since he received the golf clubs
and dinner when he was several days out of office and no longer in
a position to officially benefit the lobbyists, his conduct could
not violate s.3. Section 3, however, explicitly applies to former
public officials. The Commission has ruled that gratuities
accepted as tokens of appreciation or gratitude for past
performance of public functions violate s.3. In re Michael, 1981
SEC 59, 67-8.

[5] As discussed above in footnote 3, s.3 of G.L. c. 268A is
violated even where there is no evidence of an understanding that
the gratuities being given in exchange for a specific act performed
or to be performed. Indeed, any such quid pro quo understanding
would raise extremely serious concerns under the bribery section of
the conflict of interest law, G.L. c. 268A, s.2. Section 2 is not
applicable in this case, as there was no such quid pro quo
understanding between the lobbyists and Representative Emilio.

[6] This amount is approximately three times the value of the
$1,384 in prohibited gratuities received by Representative Emilio.
The fine reflects a disgorgement of the improperly received
gratuities plus a civil sanction.

Page 661