Docket No. 499
In the Matter of Raymond Hebert
Appearances:
Andrew Lawlor, Esq.[1]
Stephen P. Fauteux, Esq., Counsel for Petitioner
William F. Sullivan, Esq., Counsel for Respondent
Commissioners: Brown, Ch., Burnes, Larkin and McDonough
Presiding Officer: Commissioner George D. Brown, Esq.
Date: April 29, 1996
Decision and Order
I. Procedural History
On October 4, 1994, the Petitioner initiated these proceedings
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 Raymond Hebert, while he served as the Town
of Norton Building Inspector, violated G.L. c. 268A, s.3 and
s.23(b)(3) by his receipt of various gratuities from developers
within his jurisdiction and by having private commercial and/or
personal relationships with developers under his jurisdiction which
he failed to disclose to his appointing authority. Specifically,
the OTSC alleged that Thomas Grossi, James Chabot, and Arthur
Amaral were developers in Norton who were involved in construction
projects in Town during 1990-1991. During this time period, the
Respondent allegedly issued various permits to each of these
developers and inspected each developer's projects. Allegedly, in
July
Page 800
1991, the Respondent began construction on his private residence at
200 South Worcester Street in Norton. The OTSC alleges that,
during the construction of his home, the Respondent accepted a 20%
builder's discount for appliances from Grossi, and construction
plans, construction framing and excavation services, and 300 feet
of waterline from Chabot, in violation of s.3. The Petitioner also
alleges that, by accepting the builder's discount from Grossi, the
plans, services, and waterline from Chabot, and by entering a
private commercial relationship with Arthur Amaral to construct his
personal residence, at the same time that the builders were subject
to his regulation, the Respondent acted in a manner that would
cause a reasonable person, having knowledge of the relevant
circumstances to conclude that the builders could improperly
influence him, or unduly enjoy his favor in the exercise of his
official duties, in violation of s.23(b)(3).
The Respondent filed an Answer on October 31, 1994 in which he
admitted that, from January 7, 1987 until October 3, 1991 he served
as the Building Inspector in the Town of Norton, although he denied
that he was a municipal employee, as he indicates that, during much
of this time his duties were taken away from him. He further
admitted that he built a house at 200 South Worcester Street. The
Respondent asserted the following affirmative defenses: the action
is barred by the statute of limitations; the complaint fails to
state a claim upon which relief can be granted; any deficiencies in
the Respondent's duties were caused by the actions of the Town of
Norton; and any deficiencies in the Respondent's performance of his
duties were caused by individuals for whom the Respondent is not
responsible. The only affirmative defense which the Respondent
pursued prior to hearing was the statute of limitations. The
Respondent filed a motion to dismiss on grounds that the conduct
was beyond the statute of limitations. 930 CMR 1.01(6)(d).
Commissioner Brown,[2] in a memorandum and order, denied the motion
without prejudice on March 15, 1995. The Respondent has not
pursued this matter further during these proceedings.
Pre-hearing conferences were held on December 19, 1994 and
February 7, 1995, with Commissioner Brown presiding. At these
conferences, procedural issues were discussed, primarily focusing
on discovery, scheduling, the motion to dismiss, and the potential
admissibility of certain FBI testimony at the adjudicatory hearing,
as well as settlement.
An adjudicatory hearing was conducted on March 29, 1995, April
4, 1995, April 5, 1995 and April 19, 1995. At the conclusion of
the 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 October 19, 1995. The parties
presented their closing arguments to the full Commission on March
22, 1996. 930 CMR 1.01(9)(e)(5). Deliberations began in executive
session on March 27, 1996. G.L. c. 268B, s.4(i); 930 CMR
1.01(9)(m)(1). Deliberations were concluded on April 29, 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.
II. Findings of Fact
1. Between January 1987 and October 3, 1991 Raymond Hebert
held the position of Building Inspector and Zoning Enforcement
Officer in the Town of Norton. Specifically, during the months of
July, August and September, 1991, Hebert performed the duties of
Building Inspector. Hebert's appointing authority was the
Executive Secretary of the Town of Norton. While Hebert served as
the Building Inspector he received salary and benefits from the
Town of Norton.
2. The purpose of the state building code is to provide a
minimum standard of safety for people using and occupying
structures.[3] A local building inspector enforces the building
code through the issuance of permits, inspections during
construction, and the investigation of complaints by citizens. A
local building inspector may refuse to issue a permit for
noncompliance with the building code or zoning ordinance.
3. Raymond Hebert, as Building Inspector, oversaw all
private building construction in Norton, and his duties included
enforcement of the state building code.[4] If Raymond Hebert,
during his tenure as Building Inspector, found some defect or
violation of the building code, he had the authority to order
corrections made, or to halt the construction.
4. A building inspector conducts several inspections to
determine whether construction is in compliance with the building
code. The basic inspections include the foundation inspection,
framing inspection, insulation inspection, and occupancy
inspection. Additional inspections, in the building inspector's
discretion, may be performed while construction is progressing.
Page 801
5. Raymond Hebert conducted foundation inspections, framing
inspections, insulation inspections, and occupancy inspections for
housing construction in Norton, during his tenure as building
inspector.
6. To obtain a building permit, one must submit an
application, appropriate set of construction plans, municipal fee,
and other required approvals, such as septic system approval,
zoning approval, street opening permits. While he served as
Building Inspector, Hebert assisted builders and others in
completing permit applications.
7. As Building Inspector, Hebert reviewed construction plans
at the beginning of construction to determine that construction
would comply with the local zoning ordinances.
8. Raymond Hebert, as Building Inspector, issued foundation
permits which permitted a contractor to dig a foundation.
9. Raymond Hebert, as Building Inspector, performed
foundation inspections. Foundation inspections involve looking at
the soil conditions, footings and foundation at the building site
to determine whether the footings meet the requirements of the
plan, whether the footings are installed properly and whether there
are soil problems that have not been addressed by the contractor.
10. As Building Inspector, Hebert made the decision whether
or not to issue building permits to builders in Norton.[5] A
builder cannot begin construction until a building permit had been
issued. When deciding whether to issue a building permit, Hebert
interpreted the state building code requirements, and the local
zoning ordinances. Hebert did not issue a building permit in all
cases.
11. During construction a building inspector performs a rough
framing inspection. During the rough framing inspection, the
building inspector reviews the frame construction of the house
before the insulation and sheetrock are applied to determine the
appropriate size, and spacing of the structural members and whether
proper materials were used for siding, flooring, sheathing,
framing, and roof framing.
12. During construction, the building inspector performs an
insulation inspection to determine whether the amount of insulation
installed is of the proper thickness and proper heat resistance,
and whether the method of installation is proper.
13. The occupancy inspection is the final and most important
inspection in construction, and is the only inspection required
under the state building code. In the final occupancy inspection,
a building inspector must determine whether the building is
substantially complete, constructed according to the building code,
and safe for occupancy.
14. Following the occupancy inspection, the building
inspector issues an occupancy permit certifying that the building
is safe for occupancy.
15. Raymond Hebert, as Building Inspector, had the authority
to deny issuance of an occupancy permit.
16. In financing a new house construction, banks generally
require a certificate of occupancy.[6] If the building inspector
does not issue an occupancy permit, transfer of the property from
builder to homeowner may be delayed. A delayed occupancy permit
can have economic consequences for a developer, including delayed
sale of the property.[7]
17. If a building inspector finds a violation of the local
zoning ordinance he is required to notify the appropriate person,
and if the violation is not corrected, a building inspector can
suspend the building permit until the zoning violations were
adequately addressed.
18. During 1990 and 1991, Hebert had disputes with the
builders in Norton.[8]
19. Hebert began construction of a house on a piece of
property he owned at 200 South Worcester Street in late July or
early August 1991.
20. In 1990-1991, Thomas Grossi was engaged in the business
of purchasing property and building houses through the business
entity FAL Inc.
21. In 1991, Raymond Hebert, as Building Inspector, issued
the following permits to Thomas Grossi, his wife Dora Grossi, or
FAL Inc.:
Foundation Permit, 162 Woodland Road (April 17, 1991);
Building Permit, 162 Woodland Road (April 23, 1991); Occupancy
Permit, 162 Woodland Road (July 24, 1991); Building Permit, 10
Island Road (July 3, 1991); Foundation Permit, 6 Cedar Road
(July 31, 1991); Building Permit, 6 Cedar Road (July 31,
1991).
22. As Building Inspector, Hebert performed the foundation,
framing, insulation, and occupancy inspections for the construction
at 162 Woodland Rd.
Page 802
and 10 Island Rd., and he performed the foundation, framing, and
insulation inspections for 6 Cedar Road.
23. As Building Inspector, Hebert had declined to issue
Grossi permits for two contiguous lots.
24. While he was a Building Inspector and while he was
building his house, Hebert knew Grossi was a developer in Town who
was likely to come before him for permits and inspections in the
future.
25. Mr. Grossi offered to purchase the appliances for
Hebert's house through the account of a friend, Kelly Lewis, at
Caloric Appliance Company. In 1991, Kelly Lewis, a real estate
agent, had an account at Caloric Appliance Company that permitted
her to purchase appliances at a discount.
26. During the relevant time frame, the Caloric Appliance
Company operated a wholesale warehouse which provided a discount on
the purchase of major appliances to customers, such as appliance
dealers, builders, and apartment managers and others in the trades
who opened an account. There was no cost to open an account at
Caloric Appliance Company. According to industry practice, the
wholesale discount averaged 25% from the retail prices.[9]
27. Hebert accepted Grossi's offer to obtain appliances for
his house at a discount from Caloric Appliance Company.
28. Grossi utilized Kelly Lewis' account to purchase a stove,
refrigerator, dishwasher and range hood for Hebert's house.[10]
Grossi paid approximately $930 for the appliances.[11]
29. Grossi charged Hebert what the cost to Grossi was and
Hebert reimbursed Grossi for 100% of the cost.
30. Hebert received a discount on the appliances from the
retail price.[12]
31. Grossi offered to use his truck to pick up the appliances
from the warehouse in Taunton. Hebert accepted Grossi's offer to
use Grossi's truck. Hebert and Grossi took Grossi's pick-up truck
to obtain the appliances from the warehouse. Grossi did not charge
Hebert for the use of the pick-up truck, and Hebert did not pay for
the use of the truck.
32. Grossi has known Raymond Hebert and his family since
Hebert was 14 or 15 years old.
33. Grossi became social friends with Hebert in 1988-1989
when Grossi began buying property in Norton.
34. In 1990-1991, Grossi met Hebert for lunch approximately
three times each week.
35. Grossi attended several social events with Hebert during
the relevant time period, and had been a guest at Hebert's
apartment.
36. Grossi and Hebert considered themselves to be personal
friends.
37. After Hebert was terminated as Building Inspector, the
friendship continued and became closer. After the termination,
Grossi lent Raymond Hebert money for Hebert's living expenses.
38. In 1990-1991, James Chabot was a partner in J & R
Enterprise, Inc. ("J&R"). J & R is a corporation organized to
build homes for a profit. Chabot's partner in 1990-1991 was Ronald
Coolidge who, at the relevant time, was the Alternate Building
Inspector in Norton.
39. In 1990-1991, J & R built approximately 10 houses per
year in Norton.[13]
40. In 1990-1991, Hebert issued J & R the following permits:
building, foundation, occupancy permits for 312A South
Worcester Street (June 25, 1991, June 25, 1991, September 4,
1991); building and foundation permits for 320A South
Worcester Street (June 25, 1991; June 25, 1991); foundation,
building and occupancy permits for 5 Fordham Drive (June
25,1991, June 25, 1991, Sept. 11, 1991); foundation, building
and occupancy permits for 18 Fordham Drive (April 8, 1991,
April 8, 1991, May 23, 1991); foundation, building and
occupancy permits for 1 Island Road (December 21, 1990,
February 1, 1991, February 26, 1991); building and occupancy
permits for 8 Fordham Road (February 5, 1991, March 29, 1991);
foundation, building and occupancy permits for 115 Barros
Street (April 11, 1991, May 15, 1991, July 29, 1991); building
permit and occupancy permit for 58 West Hodges Street
(September 24, 1990; November 15, 1990).
41. As Building Inspector, Hebert performed all of the
inspections in connection with the above permits.
Page 803
42. Hebert began building his home at the same time that J &
R was building a house at 5 Fordham Drive, Norton.
43. As Building Inspector, Hebert granted all of the permits
for and performed all the inspections for 5 Fordham Drive.
44. At the time Hebert was building his house, he knew that
Chabot was a builder in Norton, and that Chabot would likely appear
before him, as Building Inspector, for permits and inspections in
the future.[14]
45. At the construction of 8 Fordham Drive, Hebert required
J & R to remove a deck from the house in order to obtain an
occupancy permit, based on Hebert's interpretation of the zoning
ordinance in Norton. Chabot and Coolidge disagreed with Hebert's
interpretation of the zoning requirements for 8 Fordham Drive.
46. Hebert's refusal to issue an occupancy permit until
action was taken regarding the deck delayed sale of the property at
8 Fordham Drive. J & R lowered the price of the house at 8 Fordham
Drive as a result of removing the deck off the house.
47. Following a citizen complaint regarding water in a cellar
hole, Hebert, as Building Inspector, issued a temporary cease and
desist order at the 58 West Hodges Street J & R construction site.
48. At J & R's request, Hebert, as Building Inspector, wrote
a letter, dated November 14, 1990, ordering stone veneer to be
removed from the property. J & R requested the letter because
Chabot and Coolidge were concerned about the liability of J & R for
the veneer which they had not placed on the house.
49. At 1 Island Road, Hebert was going to decline to issue an
occupancy permit. Hebert and Chabot had a disagreement over the
interpretation of the building code relating to a basement
door. Chabot convinced Hebert that Hebert's interpretation of the
building code was incorrect.
50. In late April or May 1991, Hebert arrived at the J & R
job site at 18 Fordham Drive for an inspection. Chabot had not
expected to see Hebert that day and had not requested an
inspection.
51. During the course of that inspection Hebert requested a
copy of the construction plans for the house on 18 Fordham Drive.
Chabot had drawn the plans for 18 Fordham Drive on the computer in
his office, by modifying other plans for a prior house.
52. Chabot gave Hebert a copy of the plans and permission to
use the plans. Chabot did not charge Hebert a fee for the plans
and Hebert did not pay for the plans.
53. Hebert used the plans in the construction of his home.
54. The house at 18 Fordham Drive passed all of Hebert's
inspections.
55. On two or three weekends, Chabot stopped by Hebert's job
site at 200 South Worcester Street, and volunteered his assistance.
At the Hebert job site, Chabot assisted in pre-cutting parts,
putting two walls together and building a second floor wall, and
using an excavator owned by J & R to backfill around Hebert's
foundation.
56. Chabot considers himself an expert framer.[15]
57. The "going rate" of pay for a framer is $15-$20 per
hour.[16]
58. Chabot spent 16 hours performing framing services at
Hebert's job site.[17] Chabot spent an additional two to four
hours providing backfilling services at Hebert's job site.
59. The value of Chabot's services to Hebert was at least
$320.[18]
60. Chabot did not charge Hebert for his services at the
construction site and Hebert did not pay Chabot for the services.
61. Hebert purchased waterline for $111.59 for his home.
62. The amount of waterline Hebert purchased was insufficient
to finish the construction at 200 South Worcester Street.[19]
63. At Chabot's job site on Margaret Drive in Norton, Hebert
and Arthur Amaral asked Chabot if they could borrow waterline for
use in the construction of Hebert's house, and return the coil
later.
64. Chabot supplied them with a 300 foot coil of 1" copper
tubing waterline, and expected Hebert to return a similar coil of
waterline. The value of the coil of waterline was between $100-
$200.[20]
65. Hebert did not pay for or return a similar coil.
Page 804
66. In 1991, Chabot was also a Planning Board member in
Norton. As a Planning Board member, Chabot had an ongoing
relationship with Hebert, as the Building Inspector, regarding
matters before the Planning Board.
67. Hebert met Chabot for the first time after Hebert became
Building Inspector. Chabot considered himself to be a friend, but
not a close friend of Hebert's. Chabot considered his dealings
with Hebert to be more business than social in nature.
68. Chabot and Hebert had never been to each other's homes.
Chabot had lunch or dinner with Hebert on several occasions in
seven or eight years, and had attended one seminar with Hebert, but
had never attended family gatherings, sporting events or cultural
events with Hebert.
69. Arthur Amaral has conducted his construction business
through Norton Construction Company and through Doral Realty Trust.
70. During 1990-1991, Arthur Amaral was issued the following
permits by Raymond Hebert, as Building Inspector:
Building Permit, 6 Harvey Street (September 30, 1991);
Occupancy Permit, 6 Harvey Street (October 2, 1991); Building
Permit, 4 Harvey Street (November 12, 1990); Occupancy Permit,
4 Harvey Street (May 6, 1991).
71. As Building Inspector, Hebert conducted inspections of
Amaral's work.
72. As Building Inspector, Hebert cited Amaral for a building
code violation regarding a foundation.
73. Hebert, while he was building his home, knew Amaral was
a builder in Norton, and that it was likely that Amaral would
appear before him in the future for permits and inspections.
74. During mid-winter 1991, Hebert discussed with Amaral a
plan in which Amaral would act as general contractor and build a
house for Hebert.[21] In exchange for these services, Hebert
agreed to pay Amaral between $41,000 and $45,000.[22]
75. The agreement between Hebert and Amaral was oral and not
reduced to a writing.
76. Hebert paid Amaral by several checks and with substantial
cash payments. Hebert did not pay Amaral the total agreed upon
price.[23]
77. Amaral performed all of the site work, helped clear
trees, excavated the foundation hole, excavated the septic system
holes, framed the majority of the house, hung the drywall, did the
finish carpentry, and built the decks. When Amaral stopped work at
the job site, the house was substantially complete.
78. Hebert and Amaral were good friends. This friendship
began before Hebert became Building Inspector.
79. Hebert met Amaral on a social basis five to six times per
week.
80. Hebert served as the "best man" at Amaral's wedding.
III. Decision
The Petitioner has alleged violations of G.L. c. 268A, s.3 and
s.23(b)(3). As a preliminary jurisdictional matter we must decide
whether Raymond Hebert, at the relevant time, was a municipal
employee subject to G.L. c. 268A. G.L. c.268A, s.1(g) defines
"municipal employee" as
a person performing services for or holding an office,
position, employment or membership in a municipal agency,
whether by election, appointment, contract of hire or
engagement, whether serving with or without compensation, on
a full, regular, part-time, intermittent, or consultant basis,
but excluding (1) elected members of a town meeting and (2)
members of a charter commission established under Article
LXXXIX of the Amendments to the Constitution.
The Respondent has admitted that he was the Building Inspector
and Zoning Enforcement Officer for the Town of Norton ("Town")
between January 1987 and October 3, 1991 and that he was the
Building Inspector in July, August, and September 1991 when he was
involved in constructing his home. However, in his Answer, the
Respondent denied he was a municipal employee as he had been
relieved of his duties for much of the time.
We conclude that Raymond Hebert was a municipal employee who
was subject to the conflict law. He admits that the position of
Building Inspector and Zoning Enforcement Officer is a position in
the Town and that he was charged with regulating private
construction in the municipality and interpreting the local zoning
bylaw. He admitted that the position was an appointed position and
that he received the salary
Page 805
and benefits of a Town employee. He further admits that he held
these positions between January 1987 and October 3, 1991. During
the most relevant three months, July, August, and September 1991,
he performed his duties as Building Inspector by issuing permits
and conducting inspections.[24] Accordingly, for the relevant time
period of 1990-1991, we find that Raymond Hebert was "a person
performing services for or holding an office, position, employment
or membership in a municipal agency."
A. Section 3
Section 3(b) provides, in relevant part, that a municipal
employee may not, otherwise than as provided by law for the proper
discharge of official duty, directly or indirectly, ask, demand,
exact, solicit, seek, accept, receive or agree to receive anything
of substantial value for himself for or because of any official act
or act within his official responsibility performed or to be
performed by him.
The term "substantial value" first appeared as part of the
comprehensive 1962 conflict of interest legislation that created c.
268A. In response to the need for a comprehensive law covering all
employees and to address the major kinds of conduct which might
create either a conflict of interest or the appearance of conflict,
the General Court established a special study commission in 1961 to
draft and recommend appropriate legislation. The special
commission modeled much of its work on drafts of similar
legislative initiatives pending in Congress. The special
commission was guided by two objectives: that the proposed
legislation address corruption in public office, inequality of
treatment of citizens, and the use of public office for private
gain; and that the proposed legislation set realistic and precise
standards so that the Commonwealth, counties, and municipalities
may continue to attract capable individuals who are willing to
serve in government. Final Report of the Special Commission on
Code of Ethics, H. 3650 at 18 (1962).
The General Court did not establish a statutory dollar amount
for substantial value. Subsequently, in Commonwealth v.
Famigletti, 4 Mass. App. 584 (1976), the Massachusetts Appeals
Court opined that it would be "difficult to conceive of
circumstances in which $50... could not be found "substantial" in
the context of s.3(b)." The Commission relied upon the Famigletti
decision when it established a $50 threshold as a guideline for
public employees who are offered gifts, meals, or other benefits
during the course of their official employment. See In re Michael,
1981 SEC 59,69; Commission Advisory No. 8 (Free Passes) (1985). In
EC-COI-93-14, the Commission re-affirmed its decision that
substantial value is $50 or more. The term "substantial value" is
not limited to cash gifts and, for example, has been interpreted to
include discounts (In re Michael, 1981 SEC 59), pavement of home
driveway (In re Murphy, 1992 SEC 613); services of painter for
apartment interior (In re Shay, 1992 SEC 591), carpentry services
for personal residence (In re Stanton, 1992 SEC 580).
In its determination of whether a "for or because of" nexus
exists between a public employee's official actions and a gratuity,
the Commission has stated
To establish a violation of s.3(b) the Petitioner need not
demonstrate either a corrupt intent in an employee's conduct
or an understood "quid pro quo" between the receipt of the
thing of substantial value and the performance of official
acts. (citations omitted) Further, there need be no showing
that the performance of any official acts was in fact
influenced by the receipt of the thing of substantial value.
Under 3(b) the petitioner must establish a relationship
between the solicitation or receipt of the thing of
substantial value and the performance of an employee's
official acts...
In re Antonelli, 1982 SEC 101, 108.
In essence, we have evaluated whether the public employee is
in a position to use his authority to assist the donor, whether the
donor has substantial interests that have or may be expected to
come before the public employee, and whether the official has a
prior relationship with the donor. See EC-COI-92-19; 91-14; 85-42;
In re Mahoney, 1983 SEC 146. If the public employee has a prior
private relationship with a donor, the evidence must establish that
the friendship or private relationship is the motive for receipt of
the gratuity. In re Flaherty, 1990 SEC 498, 499 and n.6.
The Ethics Commission's position that no "quid pro quo" is
required to be proven is consistent with precedent from the
Massachusetts courts. See Commonwealth v. Dutney, 4 Mass. App. Ct.
363, 375 (1976) (showing of corrupt intent not necessary for
conviction under s.3). Federal courts, interpreting similar
language in the federal gratuities statute (upon which s.3 was
based), have also concluded that neither a specific intent on the
part of the donor or donee is required nor a "quid pro quo". See
e.g., United States v. Bustamante, 45 F.3d 933, 940-941 (5th Cir.
1995);[25] United States v. Niederberger, 580 F.2d 63, 69 (3rd Cir.
1978); United States v. Evans, 572 F.2d 455, 479 (5th Cir. 1978);
United States v. Alessio, 528 F.2d 1079, 1082 (9th Cir. 1976). As
articulated by the Evans court, "it is not necessary that the
official
Page 806
actually engage in identifiable conduct or misconduct nor that any
special `quid pro quo' be contemplated by the parties nor even that
the official actually be capable of providing some official act as
`quid pro quo' at the time." Evans, 572 F.2d at 479.
1. Thomas Grossi
The Petitioner alleges that, during 1990 and 1991, Thomas
Grossi was developing and building houses in the Town of Norton
which required various permits and inspections by the building
inspector. While Raymond Hebert was constructing his home in the
late summer of 1991, Grossi arranged for Hebert to obtain a
discount, in excess of $50, on appliances through a friend of
Grossi's and Grossi and Hebert used Grossi's truck to deliver the
appliances to Mr. Hebert's house.
Hebert admits that Grossi appeared at the house site and
offered to purchase Hebert's appliances through the account of
Grossi's friend at a wholesale warehouse. Mr. Hebert also admits
that he permitted Grossi to make these arrangements and he accepted
Grossi's offer that he and Grossi use Grossi's pick-up truck to
obtain the appliances. He admits that he paid Grossi in full for
the appliances and he agrees that he received a discount on the
appliances from the retail price.
The Respondent contends that Grossi offered his assistance
with the appliances because of a longstanding friendship between
the two men.[26] The Petitioner counters with the argument that
Grossi's assistance in obtaining the discount was to obtain good
will with the Building Inspector.
Raymond Hebert knew that Grossi was a developer in Norton.
During the summer of 1991, Raymond Hebert took official actions
regarding Grossi's building projects.[27] There was substantial
testimony regarding the duties of a building inspector from Paul
Piepiora, a state building inspector, whose area includes Norton,
and from Raymond Hebert. From this testimony a reasonable
inference can be drawn that a building inspector is in a position
to exercise discretion and enforcement powers in connection with a
developer's construction project in a manner that could create
expense and delay for the developer. Hebert also testified that,
while he was Building Inspector, he knew it was likely that Grossi
would come before him in the future for building permits, and he
knew it was likely he would have to do inspections on Grossi's
properties.
However, there was substantial testimony concerning the
friendship between Grossi and Hebert. Grossi testified that he
knew Hebert since he was 14 or 15 years old and Grossi frequented
the cafe where Hebert's mother worked. He became social friends
with Hebert in 1988-89 when he started buying property in Norton.
In 1990-91 Grossi estimates he went out to lunch with Hebert
approximately 3 times a week. He also attended other social
occasions with Hebert, such as a New Year's Eve party, Hebert's
birthday party, Arthur Amaral's wedding. On occasion, Hebert and
Grossi had spent the night at each other's homes. Each man
considered the other to be a friend. Of significance, they became
closer friends after Hebert was terminated as Building Inspector.
They spent more time together and Grossi provided Hebert with an
unsolicited loan to help Hebert with his expenses.
We find that Grossi and Hebert's testimony regarding their
relationship is credible. We conclude that the friendship was the
motive for Hebert's acceptance of the discount. Accordingly, the
Petitioner has not proven, by a preponderance of the evidence that
Hebert, while Building Inspector, accepted a gratuity for or
because of any official action or action to be performed.
Therefore, G.L. c. 268A, s.3 has not been violated.[28]
2. James Chabot
The Petitioner alleges that Hebert accepted construction
plans, 300 feet of waterline, and assistance with framing and
excavation at his home from James Chabot in violation of s.3.[29]
i. Construction Plans
Hebert admitted, in his testimony, that he asked Chabot for a
copy of the construction plans that Chabot had prepared for 18
Fordham Drive and that he did not pay for the plans. Chabot
testified that this solicitation occurred, on one weekend day in
late April or May 1991, when Hebert arrived unexpectedly at the job
site at 18 Fordham Drive for an inspection. Chabot gave Hebert
permission to use the plans and Hebert used these plans in the
construction of his home. Chabot had originally prepared these
plans for 18 Fordham Drive on the computer in his office, by
modifying other plans for a prior house.
Although both parties agree that a copy of construction plans
was given to Hebert, there is a question whether the state of the
evidence is such that the Commission could ascertain by a
preponderance of the evidence, whether the plans are an item of
substantial value.
Based on the state of the evidence before us, we conclude that
the Petitioner has not met its burden of proof. There is
insufficient reliable and credible
Page 807
evidence from which we can find that the construction plans are an
item of substantial value.
Mr. Piepiora, the state building inspector, was asked what the
typical cost of an architectural set of drawings for a single
family house would be and he responded with a guess "I really don't
know what the cost would be I would suspect, my guess, would be
they could range from $200 to $800 depending on the level of
detail. I really don't know." We do not find that Mr. Piepiora
has the requisite knowledge or expertise to provide an opinion
regarding the value of construction plans. Additionally, his
answer was not framed within the context of the particular plans at
issue.
Mr. Chabot testified that he spent an estimated eight hours
preparing the plans. He testified that he had a gross income of
$140,000 per year, based on an average 10 hour workday. Petitioner
asks us to use these figures to find that the cost of Chabot's time
to prepare the plans was $40 per hour. However, Chabot testified
that he does not charge to prepare plans, nor does he charge
clients by the hour. He charges the client a package deal for the
construction of a home and does not know the value of his services
to prepare a plan. Mr. Chabot's former business partner, Ronald
Coolidge, testified that he did not know the value of the copy of
the plans. We consider the hourly rate a hypothetical figure and,
given Chabot's testimony, we do not find that the rate has
sufficient indicia of reliability for us to draw a reasonable
inference of value. Accordingly, we conclude that the Petitioner
has not proven, by a preponderance of the evidence, that
acceptance of the construction plans was an item of substantial
value, violative of s.3.[30]
ii. Construction Services
Hebert, in his testimony, acknowledged that Chabot worked on
his home on some weekends, that he assisted in putting up the
second floor wall, assisted in framing, and assisted in backfilling.
Hebert admitted that he did not pay Chabot for these
services. Chabot testified that he stopped at Hebert's building
site to "give him a hand" in the initial framing on two or three
weekends. He assisted in pre-cutting parts one day, assisted in
putting a couple of walls together, and worked on building the
front second floor wall. Chabot also testified that, on one
weekend, he provided the use of his excavator and backfilled around
Hebert's foundation. Chabot estimated he spent 2-4 hours
backfilling at Hebert's house. He spent 16 hours framing Hebert's
house.
Chabot testified that, in his experience with hiring framers
at J & R, the going rate of pay was $15-$20 per hour. We find that
Chabot's testimony, based on his personal experience at J & R and
his knowledge of the construction trade regarding the rate of pay
for framers, is credible and reliable. We conclude that Hebert
received services from Chabot valued, at a minimum, at $320, and
that these services constituted an item of substantial value under
s.3.[31]
The Respondent argues that, even if the services are of
substantial value, the services were not given "for or because of
official acts." He asserts that Chabot helped him "for the fun of
it" and that building his house was similar to a "barn raising".
We do not find this testimony credible. Although Chabot testified
that he considered Hebert a friend, he characterized the
relationship as more business than friendship. The relationship
did not develop until after Hebert became Building Inspector. They
did not go to each other's homes and their social interactions were
infrequent. There is no evidence that the friendship continued or
became stronger after Hebert was terminated as Building Inspector.
We note that, in the year after Hebert was terminated as Building
Inspector, Chabot and Hebert ran against each other for the office
of selectman. On this evidence, we are unable to draw a reasonable
inference that the services were received by Hebert because of
friendship.
Chabot was a developer who, in 1990-1991, did a significant
amount of construction business in Norton.[32] In 1990-1991 Hebert
issued J&R its permits, inspected its properties, and issued the
occupancy permits.[33] Significantly, J & R was building a house
at 5 Fordham Drive during the same time period that Hebert was
building his house. Hebert performed all the inspections and
granted all the permits for 5 Fordham Drive. Hebert testified that,
at the time he was building his house, he knew Chabot was a builder
in Town, he knew it was likely in the future that he would be
issuing permits and inspecting Chabot properties.
We recognize that a local building inspector has substantial
regulatory authority over local builders and developers. As Mr.
Hebert acknowledges, building inspectors may decline to issue
building permits, thus preventing the start of construction.
Raymond Hebert, as Building Inspector, at times, declined to issue
a building permit or an occupancy permit. Building inspectors may
halt or shut down construction, creating delay and expense for
builders. The denial of an occupancy permit can delay the sale of
the property. Building inspectors also exercise discretion in the
thoroughness of their inspections and in their
Page 808
interpretation of the language and requirements of the building
code or local zoning ordinance.
Hebert admitted that (in 1990 and 1991) he "crossed swords"
and had disputes with builders over the interpretation of the
building code. Chabot testified that he tried to avoid Hebert when
Hebert was in a "bad mood." Hebert had made decisions against
J&R's financial interest. At 8 Fordham Drive, Hebert required J&R
to remove a deck from the house in order to obtain an occupancy
permit, which upset the principals at J&R. Additionally, he issued
a cease and desist order temporarily at West Hodges St. after a
complaint of water in a cellar hole. A dispute had also arisen
over the occupancy permit for 1 Island Rd, which was issued at the
end of February 1991.
Hebert also assisted Chabot and took official actions which
benefitted J&R. J&R requested that Hebert write a letter to the
owner of the West Hodges St. property, who had put stone veneer on
the front of the house.[34] Hebert wrote the letter, dated
November 14, 1990.
On the basis of this evidence, we find that Chabot had
substantial interests in matters coming before Hebert and that
Hebert was in a position to and did exercise authority over Chabot
before and during the time that Hebert accepted free construction
services. See EC-COI-92-19; 91-14; 85-42.
As a defense, Hebert denies that he was in a position to give
Chabot favors or that he treated Chabot differently from other
developers in Norton, or that he gave some developers preferential
treatment. We agree that there is no evidence that Hebert gave
Chabot a quid pro quo in exchange for his services. To find a
violation of s.3, proof of a quid pro quo is not required or
necessary. See e.g., United States v. Bustamante, 45 F.3d 933,
940-941 (5th Cir. 1995); In re Antonelli, 1982 SEC 101, 108.
Therefore, we reject Hebert's defense.
We find, by a preponderance of the evidence, that Hebert
received construction services for his personal benefit from Chabot
for or because of his official actions or actions to be performed.
iii. Waterline
Chabot testified that, while he was on a job site on Margaret
Drive in Norton, he was approached by Hebert and Amaral. He was
informed that they were installing waterline at Hebert's house, had
discovered that they did not have sufficient line to complete the
work, and questioned whether they could borrow some waterline and
return the coil later. Chabot supplied them with a 300 foot coil
of 1" copper tubing waterline. He estimated the value at between
$100-$200. Chabot gave Hebert the coil of waterline and asked him
to return a similar coil. Hebert did not return the coil.
Hebert testified that had no knowledge of borrowed waterline.
He stated that he prepared a check for $111.59 for waterline and
that the plumber took the check to the store and purchased the
waterline.
We find Chabot's testimony credible and not inconsistent with
Hebert's testimony. While Hebert purchased waterline, Chabot
testified that he provided waterline because the amount Hebert had
was inadequate.
Additionally, we find Chabot's testimony regarding the value
of the waterline credible and reliable, given the cost to him and
his substantial experience building homes, all of which would
require waterline. We find that the waterline Hebert received from
Chabot was of substantial value for purposes of s.3. For the
reasons stated above regarding the acceptance of free construction
services, we also find that the receipt of the waterline was for or
because of official actions or actions to be performed, and was to
be used by Hebert in the construction of his personal residence.
Therefore, we conclude that the Respondent violated s.3 by
accepting free construction services and waterline from James
Chabot.
B. Section 23(b)(3)
The Petitioner alleges that, by entering a private commercial
relationship with Arthur Amaral, a builder whom he regulated,
Hebert acted in a manner that would cause a reasonable person to
conclude that the builder could improperly influence him or unduly
enjoy his favor in the performance of his official duties in
violation of G.L. c. 268A, s.23(b)(3). The Petitioner also alleges
that, by accepting a discount, construction plans, waterline and
labor from James Chabot and Thomas Grossi, builders whom he
regulated, Hebert acted in a manner that would cause a reasonable
person to conclude that the builders could improperly influence him
or unduly enjoy his favor in violation of G.L. c. 268A, s.23(b)(3).
Section 23(b)(3) of the conflict of interest law is the
standards of conduct section and provides that
Page 809
[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.
The Commission has long held that s.23(b)(3) is applicable
where a public employee does, or may perform, actions in his
official capacity which will affect a party with whom he has a
significant private relationship. See e.g., EC-COI-92-7; 89-16; In
re Foresteire, 1992 SEC 590; In re Cobb, 1992 SEC 576; In re
Garvey, 1990 SEC 504; In re Keverian, 1990 SEC 460. The Commission
has stated that
[w]e have recognized that the inherently exploitable nature of
public employees' private business relationships with those
under their jurisdiction presents serious problems even
without an actual finding that the public employee actively
solicited the business....In the Commission's view, the reason
for this prohibition is two-fold. First, such conduct raises
questions about the public employee'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.
EC-COI-92-7 (citing In re Keverian, 1990 SEC 460, 462). In EC-COI-
92-7, the Commission reiterated that a written public disclosure
from a public employee to his appointing authority was mandatory if
the public employee was in a position to take official actions
regarding a private party with whom the public employee has a
private business relationship. The disclosure should include facts
indicating that the business relationship is entirely voluntary on
the part of the private party and that the private party, not the
public employee initiated the relationship, if the relationship
commenced after the employee's public employment began. Id.
The Commission has also required a written disclosure under
s.23(b)(3) when the private business relationship is based, in
large part, on friendship between the parties. For example, in In
re Keverian, 1990 SEC 460, the House Speaker had a "50 year history
of family, cultural, ethnic and friendship ties between" the House
Speaker and a rug dealer who had a contract with the House
Speaker's office. The dealer stored, cleaned and repaired the House
Speaker's rugs, sold rugs to him at or slightly above cost, and
allowed the Speaker to keep rugs on consignment for long periods of
time without paying for them or returning them. Id. at 462. The
Commission stated that "[w]hile the evidence indicates that [the
dealer] was motivated by friendship in providing these favors, in
the commission's view these personal ties and favors only serve to
enhance the appearance of favoritism that arises when a public
official has private dealings with a vendor who does business with
his office." Id. at 463, n.2.
1. Arthur Amaral
The Petitioner has alleged that, by entering a private
commercial relationship with Arthur Amaral, a builder whom Hebert
regulated, the Respondent violated s.23(b)(3). The Respondent
asserts that, taking the evidence most favorable to him, a
reasonable person could not conclude that Raymond Hebert was unduly
influenced. The Respondent misses the point. Section 23(b)(3) is
concerned with the appearance of a conflict of interest as viewed
by the reasonable person, not whether the Respondent actually gave
preferential treatment.[35] The Legislature, in passing this
standard of conduct, focused on the perceptions of the citizens of
the community, not the perceptions of the players in the situation.
As the Commission has recently stated, it "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 re Flanagan,
1996 SEC 757.
Here, it is not seriously disputed that Hebert and Arthur
Amaral had a longstanding friendship, which
Page 810
existed prior to Hebert's appointment as Building Inspector. In
addition to this friendship, Hebert entered a private commercial
relationship with Amaral to build his personal residence.
According to Hebert, Amaral was going to control all aspects of
construction except the financing. The price for construction
would be $41,000-$45,000. This was a verbal contractual agreement.
Hebert never received any bills or invoices from Amaral. Hebert
testified that he paid Amaral by check and with substantial cash
payments. Hebert estimates that he paid Amaral approximately
$12,000 -$13,000 for his work.
Construction began on Hebert's house in late July or early
August 1991. Amaral and his crew basically performed all of the
construction. Amaral did the site work, helped clear trees,
excavated the foundation hole, excavated the septic system holes,
framed the majority of the house, hung the drywall, did the finish
carpentry, built the decks. When Amaral stopped working at the
site, the house was substantially complete.
At the same time that Amaral was building Hebert's house, he
remained a builder who was subject to Hebert's regulatory
authority. Hebert, as Building Inspector, performed inspections
and issued permits in late September 1991 regarding Amaral's
construction at 6 Harvey Street. Hebert testified that, while he
was Building Inspector, he knew Amaral was a developer in town and
he knew it was likely that Amaral would appear before him in the
future, and he knew it was likely he would be required to inspect
Amaral's projects. Based on this evidence, we find that a citizen
in the community would reasonably question whether the objectivity
and impartiality of the Building Inspector was clouded by this
ongoing private relationship. See EC-COI-92-7; In re Keverian,
1990 SEC 460, 462.
2. Grossi and Chabot
Grossi and Chabot were builders who were subject to Hebert's
regulatory authority in 1991. Hebert issued permits and inspected
their properties. The builders had a financial interest in these
inspections.
At the same time that Hebert was taking official actions which
affected Chabot and Grossi's interests, he was privately accepting
assistance with an appliance discount, free construction services,
construction plans, and waterline for his personal residence. In
the case of Chabot, he sought construction plans in the midst of an
official inspection.
Concerning Thomas Grossi, as well as with Arthur Amaral, the
appearance of favoritism was enhanced by the friendship between the
two men. See In re Keverian, 1990 SEC 460, 463, n.2. While
friendship may be a defense to a violation of s.3, it can be the
essence of a violation of s.23(b)(3) as friendship raises questions
about a public official's impartiality in the exercise of his
official duties in matters affecting his friend.
Hebert's conduct in taking official actions affecting Grossi
and Chabot while he was also accepting assistance from these
builders in his private capacity would cause a reasonable person
knowing these facts to conclude that these developers could likely
enjoy Hebert's favor in the performance of his official duties.
3. Disclosure
Section 23, as well as the Commission's precedent, requires
that a public employee, in order to dispel an appearance of a
conflict, disclose the relevant facts, in writing, to his
appointing authority. The disclosure serves to let the public know
the relevant facts and permits the appointing authority to review
the situation and take whatever steps he may deem to be appropriate
to protect the public interest. No evidence of such a disclosure
was entered in this case.
The Respondent asserts that the Petitioner has the burden of
proving that no disclosure was made. We disagree and find that the
burden of proof rests with the Respondent.
In In re Cellucci, 1988 SEC 346, the Commission considered
that a written determination from one's appointing authority under
s.19(b)(1) was an exemption to be proven by the Respondent.
According to the Commission,
Were we to assign the burden of proof of the exemption to the
Petitioner, such an allocation would be plainly inconsistent
with the expressed intent of the original framers of G.L. c.
268A. In its Final Report, the Special Commission on Code of
Ethics explained that the format they had chosen for the
statute 'was deliberately designed in order to avoid the
necessity of indictment and proof which must carry the burden
of negating all such possible exceptions and exemptions' and
declared that '[i]t was the judgment of the Commission that
the burden of proof of an exception or exemption should be on
the public official who claims it.'
Id. at 349 (citations omitted).
In the common law, the general pleading rule applicable to all
civil and criminal cases is "where the
Page 811
duty or obligation or crime is defined by statute, if there be an
exception in the enacting clause, or an exception incorporated into
the general clause, descriptive of the duty or obligation or crime,
then the party pleading must allege and prove that his adversary is
not within the exception; but if the exception is in a subsequent,
separate or distinct clause or statute, then the party relying on
such exception must allege and prove it." Sullivan v. Ward, 304
Mass. 614, 615 (1939); see Murray v. Continental Insurance Company,
313 Mass. 557 , 563 (same); Madden v. Berman, 324 Mass. 699 , 702
(1949) (burden of showing that defendant fell within proviso in
statute was upon defendant).
In G.L. c. 268A, s.23(b)(3), the language, " [i]t shall be
unreasonable to so conclude (that a person would be unduly
influenced or unduly enjoy a public employee's favor) if
such...employee has disclosed in writing to his appointing
authority...the facts which would otherwise lead to such a
conclusion," is contained in a subsequent separate sentence from
the standard of conduct. Applying the general pleading rule, the
burden of proof would lie with the Respondent to demonstrate that
he made a written disclosure to his appointing authority. This
allocation of the burden of proof is also consistent with the
legislative history of c. 268A.
The Respondent has not met his burden of proof in this case.
The lack of a disclosure in relation to Amaral is particularly
troubling as Hebert's agreement with Amaral was not in writing and
numerous cash payments were exchanged. Given these circumstances,
it would be very difficult for a member of the public to trace or
discover the relationship, absent a disclosure.
Accordingly, we conclude that the Respondent has violated G.L.
c. 268A, s.23(b)(3) by accepting the builder's discount from
Grossi, the plans, services, and waterline from Chabot, and by
entering a private commercial relationship with Amaral to
construct his personal residence, at the same time that he issued
permits, conducted inspections and otherwise regulated these
developers as Building Inspector. Raymond Hebert's actions would
cause a reasonable person, having knowledge of all of the relevant
circumstances, to conclude that these builders could 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 undue influence of
these builders.
IV. Conclusion
In conclusion, the Petitioner has proved by a preponderance of
the evidence that Raymond Hebert violated G.L. c. 268A, s.3 by
accepting free construction services and waterline from James
Chabot. The Petitioner has also proved, by a preponderance of the
evidence that Raymond Hebert violated G.L. c. 268A, s.23(b)(3) in
relation to his public dealings with Arthur Amaral, Thomas Grossi,
and James Chabot. We conclude that the Petitioner has not proven
by a preponderance of the evidence that Raymond Hebert violated s.3
by accepting construction plans from James Chabot and a
builder's discount from Thomas Grossi.
V. Order
Pursuant to the authority granted it by G.L. c. 268B,
s.4(j),[36] the Commission hereby orders Raymond Hebert to pay the
following civil penalties for violating G.L. c. 268A, s.3 and
s.23(b)(3). The Commission orders Raymond Hebert to pay $1,000 (one
thousand dollars) for violating G.L. c. 268A, s.3. The Commission
further orders Raymond Hebert to pay a civil penalty of $2,000 (two
thousand dollars) for his course of conduct with the three builders
in violation of G.L. c. 268A, s.23(b)(3). We order Mr. Hebert to
pay these penalties totaling $3,000 (three thousand dollars) to the
Commission within thirty days of his receipt of this Decision and
Order.
-------------------------
[1] Andrew Lawlor was the counsel of record during the
adjudicatory hearing of this case. He left the Commission prior to
the filing of briefs and argument. The new counsel of record for
the Petitioner is Stephen Fauteux.
[2] Commissioner Brown was the duly designated presiding
officer in this proceeding. See G.L. c. 268B, s.4(e).
[3] In making findings regarding the building inspector's
duties we credit the testimony of Mr. Hebert regarding his job
responsibilities and the testimony of Paul Piepiora. We find that
Paul Piepiora is qualified to render an opinion regarding the
duties of building inspectors for the following reasons. Mr.
Piepiora has served as a state building inspector for ten years.
His duties as a state inspector include permit issuance and
inspection of all state building projects within the assigned
district, inspection and certification of state-owned facilities,
and the provision of assistance to building inspectors in the
assigned district. The Town of Norton is within his jurisdiction,
and has been within his jurisdiction for nine years. Prior to his
Commonwealth position, he served as an assistant and deputy
building inspector for ten years. Mr. Piepiora also has private
sector experience in framing, roofing, siding, interior finish,
drafting and structural design.
[4] We credit Hebert's testimony concerning his duties as the
Norton Building Inspector.
[5] We credit Hebert's testimony.
[6] We credit Mr. Hebert's and Mr. Piepiora's testimony.
Page 812
[7] We credit the testimony of Mr. Hebert and Mr. Piepiora, as
well as the testimony of Mr. Chabot and Mr. Coolidge.
[8] In regards to this finding, we credit Hebert's testimony,
as well as Grossi's, Chabot's and Coolidge's testimony.
[9] We credit the testimony of David Lawrence Smith, the
former manager of the Caloric Appliance Company discount warehouse.
Based on his experience as manager and his experience working in
the appliance industry, we find Mr. Smith to be competent and
knowledgeable to testify regarding the practice of the industry.
Ms. Lewis testified that she thought the discount she received for
these appliances was $25-$50 per appliance, but on review of this
testimony, we consider her estimate to be a guess, not reliable
evidence.
[10] In regards to his finding we credit Grossi's testimony.
This testimony was corroborated through Agent O'Connor, an FBI
agent who testified that, in an interview with Hebert, Hebert
stated that Grossi purchased the stove, range hood, refrigerator,
and dishwasher for Hebert's house.
[11] In an interview with Agent O'Connor, Hebert stated that
the cost was $950.
[12] We credit Hebert's testimony in making this finding.
[13] Mr. Chabot testified that J & R built 10-12 houses per
year in Norton. Mr. Coolidge's estimate was 9-10 houses.
[14] We credit Hebert's testimony in this regard.
[15] We consider Chabot to be credible in his testimony on
this point. We also credit his experience in the construction
trade as a principal of J & R who has built numerous houses.
[16] Chabot was asked if he had hired framers on his job
sites. He testified that he had hired framers at J & R and that he
paid the framers "between $15 and $20 an hour, depending on the
man." Twenty dollars per hour was paid to an experienced framer.
We credit Chabot's testimony, based on his personal experience
hiring framers in the construction trades and working in the
construction trade.
[17] The number of hours is based upon Chabot's testimony that
he spent four hours putting up walls and twelve hours working on
the second floor wall. Although Chabot spent some time pre-cutting
parts, he was unable to provide a precise reliable figure. Because
a reliable figure was not placed in evidence, the time for pre-
cutting the parts is not included in this finding.
[18] This figure is arrived at by multiplying the number of
framing hours (16) by $20 per hour (framing rate).
[19] We find Chabot's testimony credible on this point.
Hebert testified that he purchased the original waterline. He
testified that he did not receive free waterline from Chabot
because he purchased waterline. However, he was not certain in his
testimony whether Arthur Amaral ran out of waterline and solicited
an additional amount. We do not find Chabot's testimony and
Hebert's testimony inconsistent where Chabot testified that the
amount Hebert had purchased was inadequate for the job.
[20] We credit Chabot's testimony concerning value based on
his cost, and his experience in the construction trade.
[21] Agent O'Connor of the FBI testified at the adjudicatory
hearing regarding five interviews he had with Arthur Amaral.
Arthur Amaral asserted his privilege against self-incrimination at
the hearing and did not testify, although he had been served with
a subpoena. Our findings regarding the relationship with Arthur
Amaral are based on Hebert's testimony at the hearing. We decline
to give Agent O'Connor's testimony substantial weight as he did not
have a strong personal recollection of the interviews and relied
heavily on his notes and reports. Some of his testimony was
multiple level hearsay and, because of an agreement the Petitioner
had with the U.S. Attorney, cross examination of Agent O'Connor was
limited.
[22] We acknowledge that this figure is the subject of dispute
between Hebert and Amaral, but we credit Hebert's testimony.
[23] Hebert testified that he paid Amaral between $12,000 and
$13,000. In evidence are checks to Amaral from Hebert totaling
$2830.
[24] Hebert issued Thomas Grossi an occupancy permit for 162
Woodland Road on July 24, 1991. He issued a building permit for 10
Island Road on July 3, 1991. He issued a foundation permit and a
building permit for 6 Cedar Street on July 31, 1991. He issued J
& R various permits for 312A South Worcester Street, 320A South
Worcester Street, 5 Fordham Drive, and 115 Barros Street. He also
issued permits to Arthur Amaral for 6 Harvey Street on September
30, 1991 and October 2, 1991. He admitted he had performed all of
the applicable inspections associated with these permits.
[25] According to the Bustamante court,
To find a public official guilty of accepting an illegal
gratuity a jury must find that the 'official accepted, because
of his position, a thing of value 'otherwise than as provided
by law for the proper discharge of official duty.' Generally,
no proof of a quid pro quo is required; it is sufficient for
the government to show that the defendant was given the
gratuity simply because he held public office. (citations
omitted).
Id. at 940.
[26] Hebert testified that "I think that Mr. Grossi did that
as a favor to me, not because I was his building inspector but
because I was his friend, and if he expected any more out of me
because of that, then, he wasn't the friend that I expected him to
be."
[27] In evidence are seven permits Hebert issued to Grossi
between April 17, 1991 and July 31, 1991. Grossi testified that he
built three houses in Norton in 1991. He indicated that Hebert
inspected homes he built on 10 Island Rd. and 10 Woodland Rd.
These inspections and permits were issued in July 1991.
[28] Because of the conclusion we reach on the nexus element,
we decline to consider whether the opportunity to obtain a discount
on the appliances was an item of substantial value.
[29] The Petitioner, in its brief, argues that Hebert
solicited free loam from Chabot and there was a great deal of
testimony concerning the loam. Hebert denies this allegation. The
Petitioner did not include this charge in the Order To Show Cause
and the Commission never made a reasonable cause determination
regarding this charge. We disagree with the Petitioner that we may
read the Order To Show Cause broadly, in order to encompass this
allegation. As a matter of due process, we decline to address this
End of Decision