Docket No. 487

In the Matter of Robert Howarth

May 12, 1994

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Robert
Howarth ("Howarth") 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,

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

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

1. Howarth served in the state legislature from January
1981 to January 1993. During that time, he served on various
committees including the Insurance Committee and the Health Care

2. Howarth sponsored or co-sponsored three bills affecting
the insurance industry.

3. In addition, Howarth, as a member of various legislative
committees, participated in many hearings on bills of interest to
the insurance industry. Such participation included voting on
whether such bills should be reported out of committee. Howarth
also voted on bills of interest to the insurance industry when they
reached the House floor.

4. During the period relevant here, F. William Sawyer
("Sawyer") was the senior John Hancock Mutual Life Insurance
Company, Inc. ("Hancock") lobbyist responsible for Massachusetts
legislation. At all relevant times, Sawyer was a registered
legislative agent (for Hancock) in Massachusetts. Hancock, a
Massachusetts corporation, is the nation's sixth largest life
insurer doing business in all 50 states. It offers an array of
life, health and investment products. As a

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Massachusetts domiciled life insurer, its activities are more
comprehensively regulated by Massachusetts than by any other state.

5. At all relevant times, Howarth knew that Sawyer was a
Massachusetts registered lobbyist for Hancock. Sawyer lobbied
Howarth regarding various pieces of legislation.

6. Lobbyists are employed to promote, oppose or influence

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

8. Sawyer paid for Howarth to stay in a room at the Copley
Plaza Hotel on November 14, 1988. The cost of this lodging was

9. Annually from 1988 to 1991, Sawyer took a group of
legislators and their guests out for dinner and drinks at a Cape
Cod restaurant. In 1988, the dinner was held at The Regatta
Restaurant in Cotuit. In 1989 through 1991, the dinner was held at
the Cranberry Moose Restaurant in Yarmouthport. The cost of these
dinners was between $736.10 and $1,131.89 annually. On the
evenings of July 1, 1988, July 2, 1989, July 2, 1990, and July 4,
1991, Howarth and his wife attended these dinners. The Howarths'
pro rata share of the cost of the dinners and drinks was $81.79,
$174.19, $150.91 and $125.54, respectively.

On the weekend of these Cape Cod dinners, Sawyer also paid
Howarth's expenses to golf at the Hyannisport Country Club.
Howarth's expenses for 1988 through 1991 were $28.24, $47.74,
$52.19 and $56.19, respectively. The total cost of Howarth's
dining and golf expenses from 1988 through 1991 were $110.03,
$221.93, $203.10 and $181.73, respectively.

10. On January 3, 1991, Howarth and his wife were Sawyer's
guests for dinner at the Copley Plaza Hotel. The Howarths' pro
rata share of the cost of the dinner was $107.75.

11. Section 3(b) of G.L. c. 268A prohibits a state employee
from directly or indirectly receiving anything of substantial value
for or because of any official act performed or to be performed by

12. Massachusetts legislators are state employees.

13. Anything worth $50 or more is of substantial value for
s.3 purposes.[1]

14. By accepting a total of $956.18 in drinks, meals and
entertainment from Sawyer, all while Howarth was in a position to
take official actions which could benefit the lobbyist, Howarth
accepted items of substantial value for or because of official acts
performed or to be performed. In doing so he violated s.3(b).[2]

15. The Commission is aware of no evidence that the
gratuities or gifts referenced above were provided to Howarth with
the intent to influence any specific act by him as a legislator or
any particular act within his official responsibility. The
Commission is also aware of no evidence that Howarth took any
official action concerning any proposed legislation which would
affect any of the registered Massachusetts lobbyists in return for
the gratuities or gifts. However, even though the gratuities were
only intended to foster official goodwill and access, they were
still impermissible.[3]

16. Howarth fully cooperated with the Commission throughout
this investigation.

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

(1) that Howarth pay to the Commission the sum of two
thousand, eight hundred and fifty dollars ($2,850.00) for
violating G.L. c. 268A, s.3;[4] and

(2) that Howarth waive all rights to contest the findings
of fact, conclusions of law and terms and conditions
contained in this agreement and in any related
administrative or judicial proceedings to which the
Commission is or may be a party.


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

[2] For s.3 purposes, it is unnecessary to prove that the
gratuities given were generated by some specific

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identifiable act performed or to be performed. As the Commission
explained in Advisory No. 8, issued May 14, 1985, prohibiting
private parties from giving free tickets worth $50 or more to
public employees who regulate them,

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

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

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

On the present facts, s.3 applies to the lobbyist entertaining
Howarth where the intent was generally to create goodwill and the
opportunity for access, even though specific legislation was not

[3] 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 the lobbyist and Howarth.

[4] This amount is approximately three times the value of the
$956.18 in prohibited gratuities received by Howarth in violation
of s.3. It represents both a disgorgment of the gratuities and a
civil sanction.

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