Docket No. 518


IN THE MATTER OF JAMES FLANAGAN


Appearances:

Karen Gray, Esq.
Counsel for the Petitioner

William F. Sullivan, Esq.
Counsel for the Respondent

Commissioners: Brown, Ch., Burnes, Gleason, Larkin and McDonough
Presiding Officer: Commissioner Herbert P. Gleason, Esq.

Date: January 17, 1996

DECISION AND ORDER


I. Procedural History


The Petitioner initiated these adjudicatory proceedings on
April 6, 1995 by issuing an Order to Show Cause ("OTSC") pursuant
to the Commission's Rules of Practice and Procedure. 930 CMR
1.01(5)(a). The OTSC alleged that Massachusetts Turnpike Authority
("MTA") employee James Flanagan ("Flanagan"), violated G.L. c.
268A, s.3(b) by receiving certain gratuities from MTA contractors
Middlesex Paving Corporation ("Middlesex") and Petruzzi &
Forrester, Inc. ("Petruzzi & Forrester"). Specifically, the
Petitioner alleged that Flanagan violated s.3(b) by receiving from
Middlesex, for himself and his guest, cocktails, dinner,
entertainment and overnight hotel accommodations valued at $250 in
connection with a 1992 Christmas party. The Petitioner also
alleged that Flanagan violated s.3(b) by: receiving from Petruzzi
& Forrester a "free car"; and/or, by receiving from Petruzzi &
Forrester a seven month $2,000 interest-free loan; and/or by
accepting Petruzzi & Forrester's forgiveness of the $2,000 debt
(owed by Flanagan for the car); and/or by receiving from Petruzzi
& Forrester a discount of $50 or more on the fair market value of
the car.

Flanagan filed his answer on May 17, 1995, admitting that he
had attended a party and had accepted hotel accommodations paid for
by Middlesex. In his answer, Flanagan also admitted that he had
received a vehicle from Petruzzi & Forrester and that he had not
paid the agreed upon price of $2,000 until November 5, 1993. Pre-
hearing conferences were held in this matter on May 8, 1995, August
18, 1995, August 29, 1995, and October 12, 1995, with Commissioner
Gleason presiding.[1] At those conferences, procedural issues were
discussed primarily focusing on discovery and scheduling, as well
as the possibility of settlement.

An adjudicatory hearing in this matter and In re Petruzzi &
Forrester (Docket No. 519) was held on two separate dates, October
30, 1995, and November 8, 1995. At the beginning of the hearing on
October 30, 1995, the Petitioner sought to have the Commission
recognize the Answers of the Respondents as part of the record of
the adjudicatory proceeding. Likewise, the Petitioner requested
that the previously filed "Stipulations and Agreements" concerning
the Middlesex counts in the OTSC be included in the record for the
proceeding. In addition, the Petitioner requested that the
Commission take "administrative notice" of a disposition agreement
previously entered into by Middlesex. Respondent Flanagan objected
on the basis of relevancy. The Presiding Officer took notice of
the Disposition Agreement noting Respondent's objection.[2]

At the conclusion of evidence, the parties were invited to
submit legal briefs to the full Commission. 930 CMR 1.01(9)(k).
The Petitioner and Respondent submitted briefs on December 11,
1995.

The parties were also invited to present their closing
arguments before the full Commission. 930 CMR 1.01(9)(e)(5).
Closing arguments were heard on December 13, 1995. The Petitioner
and the Respondent each presented closing arguments at that time.
Deliberations began in executive session on that date. G.L. c.
268B, s.4(i); 930 CMR 1.01(9)(m)(1). Deliberations were concluded
on January 17, 1996.

In rendering this Decision and Order, each undersigned member
of the Commission has considered the testimony, evidence and
argument of the parties, including the hearing transcript.[3]


II. Findings


A. Jurisdiction

Flanagan does not contest the fact that at times relevant to
the allegations of the OTSC, he was a "state employee" within the
meaning of G.L. c. 268A, s.s.3(b) and 23(b)(3).

Page 757

B. Findings of Fact


The Commission finds the following facts, which have been
stipulated to by the parties, in relation to those charges
involving Middlesex:

1. At all times here relevant, the MTA employed Flanagan as
an assistant division engineer. As such, Flanagan was a state
employee as that term is defined in G.L. c. 268A, s.1.

2. Middlesex is a group of affiliated companies doing
business in Massachusetts. Middlesex performs a variety of
construction services including road maintenance and street paving.
A substantial portion of Middlesex's business consists of state
contracts.

3. Prior to and throughout 1992, as an MTA assistant division
engineer, Flanagan supervised and inspected work performed by state
contractors, including Middlesex. Moreover, as of late 1992, it
was likely that Flanagan would supervise and inspect Middlesex
contracts in the future.

4. In 1992, Middlesex had MTA contracts valued at over
$400,000.

5. On December 19, 1992, Middlesex hosted a Christmas party
at the Marriott Long Wharf Hotel in Boston. The explicit purpose
of the party was to foster goodwill with employees and individuals
doing business with Middlesex. The party included cocktails,
dinner, entertainment and overnight hotel accommodations for
certain guests.

6. Flanagan and his guest attended the Middlesex party and
stayed overnight at the Boston Harbor Hotel as Middlesex's guests.
The cost to Middlesex was approximately $250.

The Commission finds the following facts in relation to the
charges involving Petruzzi & Forrester:

7. From 1979 until March 29, 1993, the MTA employed Flanagan
as an Assistant Division Engineer. From March 29, 1993, until
August of 1994, when his employment was terminated, Flanagan was
employed by the MTA in the position of Construction Inspector.

8. MTA Assistant Division Engineers direct and participate in
the monitoring of contractors and the inspection of construction
projects to assure that plans and specifications are being properly
implemented. Responsibilities for the position include the
preparation of records involving the recording of total quantities,
payments and work performed.[4]

9. MTA Construction Inspectors monitor the activities of
construction contractors to assure that plans and specifications
are adhered to. Responsibilities for the position include
measuring quantities of materials and maintaining a daily record of
activities.[5]

10. MTA Assistant Division Engineers and Construction
Inspectors, in carrying out their responsibilities, exercise
discretion and make decisions which affect the financial interests
of the MTA contractors whom they are overseeing.[6]

11. Petruzzi & Forrester is a construction company doing
business in Massachusetts. Petruzzi & Forrester have previously
provided construction services to the MTA.

12. Prior to 1992, Petruzzi & Forrester were awarded two MTA
construction contracts. Petruzzi & Forrester also served as a sub-
contractor with regard to an MTA paving contract.

13. Flanagan served as the Assistant Division Engineer with
regard to a construction project at Turnpike Interchange 11A, which
was completed during the early summer of 1990. Subsequently,
Flanagan served as the Assistant Division Engineer with regard to
a construction project at the Turnpike Interchange 9 toll plaza
during the summer and fall of 1990. During 1990, Flanagan also
served as the Assistant Division Engineer with regard to a paving
project at Turnpike Interchange 9. With regard to each of the
foregoing projects, Flanagan admitted that he supervised the work
of Petruzzi & Forrester.

14. On December 12, 1992, the MTA awarded Petruzzi &
Forrester a rock excavation contract (#851-426) valued at
approximately one million dollars.

15. With regard to MTA contract #851-426, during the period
of December 12, 1992, through March of 1993, Flanagan held the
title of Assistant Division Engineer but performed the functions of
an "office engineer".

16. Flanagan's functions with regard to MTA contract #851-426
included assembling shop drawings, using quality control ledger
numbers to prepare pay estimates and investigating extra work
orders.

17. A document entitled "Preconstruction Conference",[7]
which was prepared in the normal course of an MTA construction
project, indicates that Flanagan's role in relation to MTA contract
#851-426 would be limited to assembling and reviewing shop
drawings. However, in preparing pay estimates for the


Page 758

contract, Flanagan was in a position to question and verify
measurements which were supplied to him by the project inspector,
Kevin Moriarty[8]

18. With regard to MTA contract #851-426, Flanagan
participated in the review of an extra work order, resulting in a
payment to Petruzzi & Forrester of an additional $16,000, and in
the resolution of a controversy concerning the bid
specifications.[9]

19. In late March of 1993, Flanagan approached Petruzzi and
informed him that he was interested in purchasing a car owned by
Petruzzi & Forrester. The car, a 1989 Oldsmobile Cutlass Ciera
with 119,000 miles, had been previously used by a Petruzzi &
Forrester employee who no longer worked for the company.

20. Flanagan approached Petruzzi & Forrester concerning the
purchase of the car while he was acting as the Assistant Division
Engineer on contract #851-426 and was therefore in a position to
take official actions which could affect the interests of Petruzzi
& Forrester.[10]

21. Prior to April 6, 1993, Petruzzi & Forrester contacted
Brookfield Motors and received an oral (by telephone) estimate as
to the value of the car.[11] Brookfield Motors did not inspect the
car in connection with its oral estimate of the car's value.

22. Although the car was not on the market, Petruzzi &
Forrester agreed to sell it to Flanagan for $2,000 after receiving
the oral estimate from Brookfield Motors.

23. On April 6, 1993, Flanagan and Petruzzi & Forrester
signed a bill of sale which stated that Flanagan had paid and
delivered $2,000 to Petruzzi & Forester for the car.

24. On April 22, 1993, Flanagan registered the car in his
name. On or about May 7, 1993, Flanagan dropped off to Petruzzi &
Forrester the license plates that were left on the car when
Flanagan took possession of it. The Massachusetts Registry of
Motor Vehicles acknowledged receipt of the Petruzzi & Forrester
license plates on May 11, 1993.[12]

25. Flanagan paid $215 in sales tax to the Massachusetts
Registry of Motor Vehicles as a result of his purchase of the
vehicle.

26. Between April 6, 1993, and November 5, 1993, Flanagan did
not make payment of the agreed upon $2,000 purchase price. During
the same period, Petruzzi & Forrester did not pursue payment for
the car.

27. Petruzzi & Forrester understood that Flanagan could not
and, therefore, would not pay for the vehicle on April 6, 1993. In
addition, Forrester understood that Flanagan would pay for the
vehicle some time after April 6, 1993, but he did not know
when.[13]

28. Forrester understood that Flanagan had an obligation to
pay $2,000 for the car and he always intended for Flanagan to pay
that debt.[14]

29. Subsequent to April 6, 1993, Forrester put a folder
containing information on the sale of the car in his "suspense
file".[15] Because the time period following the transfer of the
vehicle was Petruzzi & Forrester's "busy season", however,
Forrester never looked in that file between April and November of
1993. Moreover, Forrester failed to follow up on the outstanding
$2,000 debt owed by Flanagan because of the fact that he alone ran
the office for Petruzzi & Forrester without any support staff.[16]

30. At all times prior to November 5, 1993, Flanagan intended
to pay Petruzzi & Forrester $2,000 for the vehicle.[17]

31. On November 2, 1993, Massachusetts State Police Officer
Walter Carlson went to the offices of Petruzzi & Forrester to
inquire about Petruzzi & Forrester's sale of the car to Flanagan.
Immediately thereafter Petruzzi & Forrester telephoned Flanagan to
inform him of the State Police investigation.

32. On November 5, 1993, Flanagan paid Petruzzi & Forrester
$2,000 for the car.

33. Between 4/26/93 and 10/5/94, Flanagan paid a total of
$3,322.90 for repairs to the vehicle involving the battery, tires,
starter, steering, hoses, transmission, ignition and brakes.[18]

34. Flanagan's relationship with Petruzzi & Forrester was
based solely on his official interaction with them as an MTA
employee.[19]

35. Flanagan did not file a written disclosure with his MTA
appointing authority of his purchase of an automobile from Petruzzi
& Forrester.[20]


III. Decision


The Petitioner contends that Flanagan violated G.L. c. 268A,
s.3(b) with regard to his receipt of several gratuities. This
section prohibits anyone, being a

Page 759

present or former state, county or municipal employee or member of
the judiciary, otherwise than as provided by law for the proper
discharge of official duty, from directly or indirectly, asking,
demanding, exacting, soliciting, seeking, accepting, receiving or
agreeing to receive anything of substantial value for himself for
or because of any official act or acts within his official
responsibility performed or to be performed by such an employee.

The term "substantial value" is not defined in G.L. c. 268A.
In construing this term, both the courts and the Commission have
established a $50 threshold at which and above, a gift will be
regarded as of substantial value. Commonwealth v. Famigletti, 4
Mass. App. 584 (1986) (a gift of $50 would be considered
substantial within the context of s.3(b)); Commission Advisory No.
8 (Free Passes) (1985); EC-COI-93-14 (re-affirming Commission's use
of $50 threshold in measuring substantial value). The Commission
has not limited its application of s.3 and the $50 threshold to
cash gifts. Rather the Commission has found tickets, meals, loans
(In re Antonelli, 1982 SEC 101) and transportation valued at $50 or
more to be of substantial value. In contrast, gifts, discounts or
meals worth less than $50 have been treated as of nominal value.
In re Michael, 1981 SEC 59.

The Commission has previously found a s.3 violation where
gifts and other things of substantial value are given "for or
because of" the employee's official acts[21] even where there is no
understood "quid pro quo" or intent to influence the employee's
acts. The Commission examines the relationship between the
gratuity and the employee's official duties. The Commission has
previously explained that

[a] public employee need not be impelled to wrongdoing as a
result of receiving a gift or gratuity of substantial value,
in order for a violation of Section 3 to occur. Rather, the
gift may simply be a token of gratitude for a well-done job or
an attempt to foster goodwill. All that is required to bring
Section 3 into play is a nexus between the motivation for the
gift and the employee's public duties. If this connection
exists, the gift is prohibited. To allow otherwise would
subject public employees to a host of temptations which would
undermine the impartial performance of their duties, and
permit multiple enumeration for doing what employees are
already obliged to do - a good job. Sound public policy
necessitates a flat prohibition since the alternative would
present unworkable burdens of proof. It would be nearly
impossible to prove the loss of an employee's objectivity or
to assign a motivation to his exercise of discretion. See
Michael, 1981 SEC 59, 68.

In its Free Passes Advisory, the Commission announced that the
application of s.3 is not limited to instances in which matters are
actually pending before a public official, but includes prior or
future official acts as well. The Commission created a policy
whereby it will infer a "for or because of" relationship between
the gift and the recipient where there is no prior social or
business relationship between the giver and the receiver, and where
the recipient is in a position to use his authority in a manner
which could affect the giver.


A. Middlesex


The Petitioner alleges that by accepting gratuities valued at
approximately $250 from Middlesex in the form of a party and
overnight hotel accommodations, Flanagan violated G.L. c. 268A,
s.3(b).

Based on the foregoing agreed upon facts, there is no dispute
that Flanagan attended the December 19, 1992, Christmas party,
which included cocktails, dinner, entertainment and overnight hotel
accommodations at the Marriott Long Wharf Hotel in Boston. It was
agreed by the parties that the explicit purpose of the party was to
foster good will with employees and individuals doing business with
Middlesex. Prior to and throughout 1992, Flanagan supervised and
inspected work performed by Middlesex. Furthermore, as of
late 1992, it was likely that Flanagan would supervise and inspect
Middlesex contracts in the future. We therefore conclude that
Flanagan was in a position to use his authority in a manner which
could affect Middlesex. As a result, the Petitioner has proven by
a preponderance of the evidence that Flanagan received something of
substantial value from Middlesex for or because of officials acts
performed or to be performed. Flanagan thereby violated s.3(b) of
G.L. c. 268A.


B. Petruzzi & Forrester

1. Section 3(b)


The Petitioner alleges that by not paying Petruzzi & Forrester
$2,000 for an automobile after he had taken possession of it,
Flanagan received something of substantial value because he:

a) accepted a "free car"; or

b) knew and had accepted the fact that Petruzzi & Forrester
had forgiven the $2,000 debt; or

Page 760

c) had accepted from Petruzzi & Forrester an interest free
loan of $2,000 for seven months; or

d) had accepted from Petruzzi & Forrester a discount of $50
or more on the fair market value of the car.


a. Gift of a Car


The parties agree that Flanagan received from Petruzzi &
Forrester a 1989 Oldsmobile Cutlass Ciera with 119,000 miles on
April 6, 1993. It is undisputed that Flanagan paid to Petruzzi &
Forrester $2,000, the agreed upon sales price, on November 5, 1993.

Thus, the Commission does not find that Flanagan received from
Petruzzi & Forrester a "free car".

b. Forgiveness of Debt


The Petitioner contends that Flanagan received from Petruzzi
& Forrester something of substantial value because he was aware of
and had accepted the fact that the debt owed for the vehicle had
been forgiven prior to the State Police investigation. In other
words, the Petitioner would have us find that had the State Police
not investigated the transaction, Petruzzi & Forrester would not
have required Flanagan to pay the $2,000 debt.

On this point, the Commission finds that the Petitioner has
presented no direct evidence to demonstrate that Petruzzi &
Forrester had at any time forgiven the $2,000 debt. Based on the
most obvious evidence, the fact that Petruzzi & Forrester
eventually notified Flanagan of the outstanding obligation (albeit
after the State Police investigation) and the fact that Flanagan
eventually paid the previously agreed upon purchase price of
$2,000, we conclude that Petruzzi & Forrester did not forgive the
debt. Moreover, even if we consider the Petitioner's theory that,
but for the State Police investigation, Petruzzi & Forrester had
already treated and would continue to treat Flanagan's debt as
forgiven, we do not find that the theory is supported by any direct
evidence. Flanagan testified that, at all times after receiving
the car, he intended to pay the $2,000. Mr. Forrester also
testified that there was no doubt in his mind that Flanagan was
under an obligation to pay the $2,000 agreed upon price. Thus, the
only two parties who could give definitive testimony with regard to
the terms of the transaction provided testimony in contradiction to
the Petitioner's allegation that the debt had been forgiven.

Further, we find that the circumstantial evidence put forth by
the Petitioner does not permit us to draw a reasonable inference
that Petruzzi & Forrester had forgiven the $2,000 debt. In
particular, the Petitioner has proven by undisputed evidence the
passage of a seven-month time period following the receipt of the
car and before the payment of $2,000 was made. Moreover, the
Petitioner established that the payment occurred only after a state
police investigation concerning the car's transfer had commenced.

In response, however, Petruzzi & Forrester argue that they
understood that Flanagan would not and could not pay for the
vehicle on April 6, 1993. Forrester testified that it was his
understanding that Flanagan would be paying for the car some time
later. We have credited Forrester's testimony that he put a folder
containing information on the sale of the car in his "suspense
file", but that because of time of year (their busy season), he
never looked in that file between April and November of 1993.
Moreover, Forrester explained that his failure to follow up on
Flanagan's payment resulted from the small size of their office.

In summary, the Petitioner's allegation that the debt was
forgiven by Petruzzi & Forrester is supported, at best, by
circumstantial evidence. However, we find Forrester's explanation
concerning his failure to collect the debt during the seven month
period credible. This explanation rebuts the Petitioner's
circumstantial evidence. We, therefore, conclude that the
Petitioner has not proven by a preponderance of the evidence that
the debt was forgiven.


c. Interest Free Loan


The Petitioner alleged that, even if Flanagan intended
eventually to pay for the car, Flanagan received from Petruzzi &
Forrester an interest free loan of $2,000 for seven months.
However, we find that Petitioner failed to meet its evidentiary
burden concerning the value of the alleged loan, the type of loan
provided, the prevailing interest rate for an automobile loan at
the relevant time, etc. Because we cannot make such determinations
without evidence before us, we cannot reasonably conclude that
Flanagan accepted from Petruzzi & Forrester something of
substantial value in the nature of an interest free loan.


d. Discount


The Petitioner further alleged that Flanagan accepted from
Petruzzi & Forrester a discount of $50 or more on the fair market
value of the vehicle. We find that the record is devoid of clear
and reliable direct evidence demonstrating that the fair market
value of the vehicle was $2,050 or greater.[22]

Page 761

The Petitioner relies on circumstantial evidence as to the
vehicle's fair market value. In particular, the Petitioner put
forth the amount of sales tax ($215) paid by Flanagan to the
Registry of Motor Vehicles on his purchase of the vehicle.
Petitioner argues that the Commission may draw an inference from
this evidence that, assuming a sales tax rate of 5%, the Registry
believed the value of the car to be $4,300. However, the
Petitioner presented no testimony or documentary evidence as to how
the Registry assesses the value of a vehicle for sales tax
purposes. Forrester testified that, based on his own inquiry of
the Registry, that agency uses a computer generated value which
does not take into account the condition or mileage of the vehicle.
The owner of the vehicle may file for an abatement if, due to the
condition of the car, the actual value is believed to be less than
that which is assigned to the vehicle by the Registry.[23] Because
there was no evidence as to how the Registry's values are arrived
at, we cannot reasonably draw an inference as to the fair market
value of the vehicle based on the Registry's collection a $215
sales tax.

In response to the Petitioner's allegation, Petruzzi &
Forrester contends that the $2,000 price paid for the car
reasonably reflected the fair market value of the vehicle. In
support thereof Petruzzi & Forrester submitted the NADA Official
Used Car Guide for May, 1993, to demonstrate that a high mileage
deduction of $2,500 would be applicable to a 1989 intermediate or
personal luxury car with 115,000 to 130,000 miles.[24] There was
not, however, any testimony or other evidence to demonstrate how
this guide could be used to assess the actual or fair market value
of the car in question.[25] Additionally, Flanagan submitted
repair bills for the vehicle which he incurred between 4/26/93 and
10/5/94 totaling $3,322.90. Finally, Petruzzi & Forrester
presented evidence that the depreciated "value of the car", as
shown on Petruzzi & Forrester's 1993 tax return, was $1,818. As a
result, the company reported a taxable gain of $182 on the sale.
There was no testimony as to how the amount of depreciation was
calculated, although the tax return was prepared by a Certified
Public Accountant.

We therefore find that the Petitioner has not put forth
sufficient direct evidence to prove that the fair market value of
the vehicle exceeded $2,000. Moreover, we do not find the
circumstantial evidence sufficiently clear or reliable so as to
permit us to draw an inference as to the vehicle's fair market
value.[26] As a result, we conclude that the Petitioner has not
proven by a preponderance of the evidence that Flanagan received a
discount of $50 or more on the fair market value of the vehicle.

Because we conclude that the substantial value element of a
s.3(b) has not been proven with regard to any of the Petitioner's
allegations concerning the car, we do not reach the question: was
Flanagan, immediately prior to the transfer of the vehicle, in a
position to use his authority to affect Petruzzi & Forrester so
that a gift to him would violate s.3(a). We note, however, that we
do not find persuasive, Flanagan's argument that because he was not
in a position to give final approval to the pay estimates, he was
not in a position to take actions which affected Petruzzi &
Forrester. Moreover, Dionne testified that there was a likelihood
that Flanagan could have been assigned to a Petruzzi & Forrester
contract in the future, after the transfer of the vehicle.
Finally, Flanagan testified that he had not been instructed by his
MTA supervisors that he was never again to work on a Petruzzi &
Forrester project.


2. Section 23(b)(3)


Petitioner alleges that by failing to pay the $2,000 for the
car to Petruzzi & Forrester, with whom he had dealings in his
official capacity as an MTA employee, until the state police made
inquiries about the matter seven months after he took possession of
the car, Flanagan violated s.23(b)(3). The Petitioner argues that
Flanagan thereby acted in a manner which would cause a reasonable
person knowing the relevant circumstances to conclude that Petruzzi
& Forrester could unduly enjoy Flanagan's favor in the performance
of his official duties.

Section 23(b)(3) of G.L. c. 268A provides that

[n]o current officer or employee of a state, county or
municipal agency shall knowingly, or with reason to know:

(3) act in a manner which would cause a reasonable person,
having knowledge of the relevant circumstances, to conclude
that any person can improperly influence or unduly enjoy his
favor in the performance of his official duties or that he is
likely to act or fail to act as a result of kinship, rank,
position or undue influence of any party or person. It shall
be unreasonable to so conclude if such officer or employee has
disclosed in writing to his appointing authority or, if no
appointing authority exists, discloses in a manner which is
public in nature, the facts which would otherwise lead to such
a conclusion.

We have previously recognized the inherently exploitable
nature of public employees entering into

Page 762

private business relationships with those under their jurisdiction.

The Commission has emphasized that:

public officials and employees must avoid entering into
private commercial relationships with people they regulate in
their public capacities. In the Commission's view, the reason
for this prohibition is two-fold. First, such conduct raises
questions about the public official's objectivity and
impartiality. For example, if lay-offs or cutbacks are
necessary, an issue can arise regarding who will be
terminated, the subordinate or vendor who has a significant
private relationship with the public employee or another
person who does not enjoy such a relationship. At least the
appearance of favoritism becomes unavoidable. Second such
conduct has the potential for serious abuse. Vendors and
subordinates may feel compelled to provide private services
where they would not otherwise do so. And even if in fact no
abuse occurs, the possibility that the public official may
have taken unfair advantage of the situation can never be
completely eliminated. Consequently, the appearance of
impropriety remains. In re Keverian, supra, 462.

In applying s.23(b)(3), the Commission will evaluate whether the
public employee is poised to act in his official capacity and
whether, due to his private relationship or interest, an appearance
arises that the integrity of the public official's action might be
undermined by the relationship or interest.

In the case before us, we could reasonably find that Flanagan
"acted in a manner . . . ," within the meaning of s.23(b)(3), if he
performed his MTA job responsibilities on the Petruzzi & Forrester
rock excavation contract while discussing with Petruzzi & Forrester
his interest in purchasing their car. Whereas, if Flanagan
approached Petruzzi & Forrester concerning the purchase of the
vehicle only after his official relationship with them had ended
(after having been transferred to a job involving another
contractor), then he could not act in a manner which would cause a
reasonable person to conclude that he would be unduly influenced in
the performance of his duties.

On this point, we find that Flanagan was performing his MTA
job responsibilities with regard to a Petruzzi & Forrester project
at that same time that he approached Petruzzi & Forrester
concerning his interest in purchasing their automobile. Therefore,
by a preponderance of the evidence, we find that a reasonable
person could conclude that the integrity of any actions taken by
Flanagan in his MTA position regarding the rock excavation
contract, while simultaneously negotiating the purchase of the car
with Petruzzi & Forrester, could be undermined by his private
dealings with Petruzzi & Forrester concerning the car.

This analysis of s.23(b)(3) is consistent with our prior
application of this section. The Commission has previously held
that "acting in a manner" refers to the taking of official action
as a public employee. See EC-COI-89-9 (member of General Court
advised after conveying interest in company to his wife that prior
to his legislative participation in matters involving clients of
the company, he should publicly disclose the relevant facts); 89-16
(a member of a state Board must disclose his prior friendship with
petitioner prior to acting on petition pending before the Board);
89-29 (Steamship Authority employee made 23(b)(3) disclosure prior
to participating in Authority decision concerning sale of land that
Authority had previously purchased from his private client).

Finally, we note that in order to avoid a violation in
circumstances such as those before us, s.23(b)(3) requires a public
employee to file a written disclosure with his appointing authority
describing the public employee's private business relationship with
someone whom the employee regulates. See EC-COI-92-7 citing In re
Keverian, 1990 SEC 460 (Speaker of the House admitted that private
business relationships with office employees and vendors, without
disclosure, violate s.23(b)(3)); In re Garvey, 1990 SEC 478. In
this case, Flanagan did not file any written disclosure with his
MTA appointing authority concerning his purchase of the car from
Petruzzi & Forrester.[27] Flanagan therefore violated s.23(b)(3)
of G.L. c. 268A.


IV. Conclusion


In conclusion, the Petitioner has proven by a preponderance of
the evidence that Flanagan violated s.3(b) by receiving from
Middlesex something of substantial value for or because of official
acts performed or to be performed. We further conclude that the
Petitioner has not proven by a preponderance of the evidence that
Flanagan received from Petruzzi & Forrester something of
substantial value and therefore he did not violate s.3(b) in
relation to the motor vehicle transaction. We do, however,
conclude that the Petitioner has proven by a preponderance of the
evidence that Flanagan violated s.23(b)(3) in relation to his
purchase of an automobile from Petruzzi & Forrester.

Page 763

V. Order


The Middlesex Gratuities


Pursuant to the authority granted it by G.L. c. 268B,
s.4(j),[28] the Commission hereby orders James Flanagan to pay a
civil penalty of $750 (seven hundred and fifty dollars) to the
Commission within thirty days of his receipt of this Decision
and Order for receiving gratuities for himself and his guest from
Middlesex in violation of G.L. c. 268A, s.3(b). This penalty is
consistent with the penalties paid by other public employees who
attended the above-described Middlesex event without paying for it.
See e.g., In re O'Toole, 1994 SEC 698; In re Berlucchi, 1994 SEC
700; In re Salamanca, 1994 SEC 702.


The Car From Petruzzi & Forrester


Although the Commission has found that Flanagan violated
s.23(b)(3) in relation to his purchase of a motor vehicle from
Petruzzi & Forrester, we choose not to assess a civil penalty for
this violation. In reaching this decision, we have considered
several factors. We note that, as early as April of 1993,
Flanagan's MTA superiors were aware of his private transaction with
Petruzzi & Forrester and that Flanagan did not attempt to hide his
purchase of the vehicle. Additionally, Flanagan was terminated
from his MTA position, at least in part, because of his purchase of
the automobile from Petruzzi & Forrester.

Our decision not to impose a penalty with regard to the
s.23(b)(3) violation in this case is also based on our prior
practice of imposing penalties only in those s.23(b)(3) cases where
there has been a pattern of violative conduct or where the conduct
has been considered particularly egregious. See e.g., In re
Doughty, 1995 SEC 726; In re Malcolm, 1991 SEC 535. We find that
this matter does not involve that type of s.23(b)(3) violation.

-------------------------


[1] Commissioner Gleason was duly designated as the presiding
officer in this proceeding. See G.L. c. 268B, s.4(e).


[2] At the conclusion of testimony on November 8, 1995, the
presiding officer noted that the previously noticed Disposition
Agreement would be recognized as a record of the Commission, but
that the findings contained therein would not be considered by the
Commission in reaching a decision on this matter. Rather, the
Commission would apply its prior precedent to its factual findings
in the current case. With regard to the particular allegations
involving Middlesex, the parties agreed that they would rest on the
previously filed Stipulations and Agreements.


[3] Commissioner Gleason is not a signatory to the Decision
because his term ended prior to its issuance. He did, however,
fully participate in the Commission's deliberations and decision in
this matter.


[4] This finding is derived from a written job description for
the position of MTA Assistant Division Engineer which was admitted
in evidence.


[5] This finding is derived from a written job description for
the position of MTA Construction Inspector which was admitted in
evidence. MTA inspector Kevin Moriarty's testimony concerning his
job responsibilities further supports this finding. Flanagan's
testimony concerning his role as a Construction Inspector also
supports this finding.


[6] This finding is supported by the testimony of Ronald
Dionne, MTA Division Engineer. Although on cross-examination, Mr.
Dionne was challenged as to the extent of Flanagan's responsibility
with regard to a particular contract involving Petruzzi &
Forrester, we find Dionne credible as to the general job
responsibilities for the two MTA positions. Moreover, this finding
is supported by written job descriptions for the two positions
which were admitted in evidence.


[7] This document was admitted in evidence.


[8] This finding is supported by the testimony of Ronald
Dionne. Although Dionne admitted on cross-examination that
Flanagan did not give the final approval with regard to pay
estimates or extra work orders, we find Dionne credible with regard
to the actual role played by Flanagan on contract #851-426. We
note that Flanagan admitted preparing the pay estimates.


[9] This finding is supported by Ronald Dionne's testimony
which we find credible.


[10] This finding is supported by a letter from Spencer
Savings Bank dated March 24, 1993, which was admitted in evidence
and which responds to an inquiry by Petruzzi & Forrester concerning
its intention to sell the vehicle in question. Furthermore a
letter dated March 22, 1993, from MTA Director of Human Resources,
James LaBua, notified Flanagan that he would be reclassified to the
position of Construction Inspector effective March 29, 1993.
Therefore, we can reasonably find that Flanagan had approached
Petruzzi & Forrester concerning the car prior to March 23, 1993,
and at that time he continued to function as the Assistant Division
Engineer with regard to a Petruzzi & Forrester contract. Moreover,
there is no evidence to suggest to us that Flanagan worked on any
project other than contract #851-426 during the month of March,
1993.


[11] Forrester's testimony as to the value placed on the car
by Brookfield Motors was unclear.


[12] This finding is based on Flanagan's testimony and several
Registry of Motor Vehicles documents including a Plate Return
Receipt.


[13] This finding is supported by the testimony of Forrester.
We note that Forrester was challenged on cross-examination
concerning his prior understanding of when Flanagan would pay for
the car. However, we find Forrester credible in that he understood
payment would be made some time after April 6, 1993, and that the
exact time for payment was not scheduled.


[14] This finding is based on Forrester's testimony which we
find credible.


[15] The "suspense file" apparently was mechanism intended to
work as a tickler system to remind Forrester of matters which would
require his future attention.


[16] We find Forrester's testimony concerning his failure to
pursue payment from Flanagan due to other more pressing concerns
credible.


[17] This finding is based on Flanagan's testimony which we
find credible. The Petitioner's introduction of evidence
concerning Flanagan's financial status in 1993 does not prompt us
to draw an inference contrary to this finding.


[18] This finding is supported by the bills for these repairs
which were admitted in evidence.


[19] Flanagan testified that his relationship with Petruzzi &
Forrester was purely business.


[20] This finding is based on Flanagan's testimony during the
adjudicatory hearing.


[21] "Official act," any decision or action in a particular
matter or in the enactment of legislation. G.L. c. 268A, s.1(h).


[22] As to the fair market value of the vehicle, Forrester
testified that he received an oral estimate from Brookfield Motors
(prior to April 6, 1993), which was based in part on a deduction
for high mileage "somewhere in the neighborhood of $2,500." On
cross examination, Forrester, claiming a lack of clear memory, put
the Brookfield Motors statement of the high mileage deduction at
"$2,900 or whatever. . . ." The testimony was unclear as to what
value was actually placed on the car by Brookfield Motors. A
written estimate from Brookfield Motors was admitted in evidence.
The written estimate, prepared by Sales Representative Troy D.
Kruzewski, was provided to Forrester in May of 1994 (more than one
year after the transaction) and states that the "average loan"
using "April's NADA official used card guide" is $2,075 which
includes a mileage deduction of $2,200. However, we do not credit
the written estimate as reliable where there was no evidence, other
than the document itself, as to how it was prepared or what the
meaning of the term "average loan" is and how it relates to the
fair market value of a used vehicle.


[23] There was no evidence as to whether Flanagan ever
attempted to obtain an abatement and if he did not, the reason for
that decision.


[24] A review of the record indicates that the document was
admitted solely for the purpose of demonstrating a mileage
deduction as opposed to the value of the vehicle in question.


[25] Because the car was not sufficiently identified, we are
unable to determine which of several values provided by the Guide
would be applicable to the car in question.


[26] For example, there was no expert testimony as to the fair
market value of a 1989 Oldsmobile Cutlass Ciera with 119,000 miles.


[27] We note that there was testimony that in April of 1993,
Dionne (Flanagan's immediate supervisor) was aware that Flanagan
had received the car from Petruzzi & Forrester. At some point
during April of 1993, Dionne reported the transaction to his
superior, Chief Engineer Bruce Grimaldi. Furthermore, Dionne
testified that he was instructed by Grimaldi to do nothing further
in connection with the car transfer. MTA Director of Operations,
John Judge testified that he became aware of the automobile
transaction at some time in September of 1993.


[28] The Commission possesses the authority under G.L. c.
268B, s.4(j) to assess civil penalties of not more than two
thousand dollars for each violation of G.L. c. 268A.

End of Decision