Docket No. 504

In the Matter of Robert Calo

October 12, 1994

Disposition Agreement


This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Robert Calo
("Calo") 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 12, 1994, the Commission initiated, pursuant to G.L.
c. 268B, s.4(a), a preliminary inquiry into allegations that Calo
had violated the conflict of interest law, G.L. c. 268A. The
Commission has concluded its inquiry and, on September 27, 1994,
voted to find reasonable cause to believe that Calo violated G.L.
c. 268A, s.3.

The Commission and Calo now agree to the following facts and
conclusions of law:

1. At all times here relevant, Calo was employed by the
Massachusetts Highway Department ("MHD") as a civil engineer. As
such, Calo was a state employee as that term is defined in G.L. c.
268A, s.1.

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

3. As a MHD civil engineer, Calo was responsible for
supervising and inspecting work performed by state contractors,
including Middlesex.

4. During 1992, Middlesex successfully bid for MHD contracts
valued at over $28 million. These contracts were awarded to
Middlesex as the lowest qualified bidder.

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. Calo and his wife attended the Middlesex party and stayed
overnight at the Marriott as Middlesex's guests. The cost to
Middlesex was approximately $170.

7. Section 3(b) of G.L. c. 268A prohibits a state employee
from accepting anything of substantial value for or because of any
official act or act within his official responsibility performed or
to be performed by him. Anything with a value of $50 or more is of
substantial value for s.3 purposes.[1]

8. By receiving $50 or more in entertainment and hotel
accommodations from Middlesex while, as a MHD civil engineer, he
was supervising Middlesex's contracts, and where he had been
involved in prior Middlesex contracts and was likely to be involved
in future Middlesex contracts, Calo received a gift of substantial
value for or because of acts within his official responsibility
performed or to be performed by him.[2] In so doing, Calo violated
G.L. c. 268A, s.3(b).[3]

Page 704

9. The Commission is aware of no evidence that the
entertainment referenced above was provided to Calo with the intent
to influence any specific act by him as a MHD civil engineer or any
particular act within his official responsibility. The Commission
is also aware of no evidence that Calo took any official action
concerning any Middlesex contracts in return for the gratuities.
However, even though the gratuities were only intended to foster
official goodwill, they were still impermissible.[4][5]

10. Calo fully cooperated with the Commission's
investigation.

In view of the foregoing violations of G.L. c. 268A by Calo,
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 Calo:

(1) that Calo pay to the Commission the sum of three
hundred and forty dollars ($340.00) for violating G.L. c.
268A, s.3(b);[6]

(2) that Calo will act in conformance with the
requirements of G.L. c. 268A in his future conduct as a
state employee; and

(3) that Calo 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.

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[1] In the past, the Commission has considered entertainment
expenses in the amount of $50 to constitute "substantial value".
P.E.L. 88-1. See Commission Advisory No. 8 (issued May 14, 1985).

[2] For s.3 purposes, it is unnecessary to prove that any
gratuities given were generated by some specific identifiable act
performed or to be performed. In other words, no specific quid pro
quo corrupt intent need be shown. Rather, the gift may simply be
an attempt to foster goodwill. It is sufficient that a public
official, who was in a position to use his authority in a manner
that would affect the giver, received a gratuity to which he was
not legally entitled, regardless of whether that public official
ever actually exercised his authority in a manner that benefitted
the gift giver. See Commission Advisory No. 8. See also United
States v. Standerfer, 452 F. Supp. 1178, (W.D.P.A. 1978), aff'd
other grounds, 447 U.S. 10 (1980); United States v. Evans, 572 F.2d
455, 479-482 (5th Cir. 1978).

[3] As the Commission stated in In re Michael, 1981 SEC 59, 68,

A public employee need not be impelled to wrongdoing as
a result of receiving a gift or a gratuity of substantial
value in order for a violation of Section 3 to occur.
Rather, the gift may simply be 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 remuneration for doing what employees are
already obligated to do -- a good job.

[4] As discussed above in footnote 2, s.3 of G.L. c. 268A is
violated even where there is no evidence of an understanding that
the gratuity is 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
bribe section of the conflict of interest law, G.L. c. 268A, s.2.
Section 2 is not applicable in this case, however, as there was no
such quid pro quo between Middlesex and Calo.

[5] In a similar disposition agreement, Middlesex acknowledged
violating s.3(a) by providing the above entertainment to Calo, who
as a MHD civil engineer had and would perform official acts
regarding Middlesex's state contracts.

[6] Calo reimbursed Middlesex the cost of the gratuity after being
informed that his actions probably violated the conflict of
interest law. The $340 fine is two times the approximate value of
$170.00 in prohibited gratuities received by Calo in violation of
s.3.

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