Docket No. 501

In the Matter of Edward O'Toole

October 12, 1994

Disposition Agreement




This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Edward
O'Toole ("O'Toole")

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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
O'Toole 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 O'Toole
violated G.L. c. 268A, s.3.

The Commission and O'Toole now agree to the following facts
and conclusions of law:

1. At all times here relevant, O'Toole was employed by the
Massachusetts Highway Department ("MHD") as a civil engineer. As
such, O'Toole 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, O'Toole was responsible for
supervising and inspecting work performed by state contractors,
including Middlesex.

4. During 1991, Middlesex had successfully bid for MHD
contracts valued at over $4 million. These contracts were awarded
to Middlesex as the lowest qualified bidder.

5. On December 21, 1991, 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. O'Toole 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. During 1992, Middlesex had successfully bid for MHD
contracts valued at $28 million. These contracts were awarded to
Middlesex as the lowest qualified bidder.

8. 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.

9. O'Toole and his wife attended the Middlesex party and
stayed overnight at the Boston Harbor Hotel as Middlesex's guests.
The cost to Middlesex was approximately $250.

10. 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]

11. 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, O'Toole received gifts of
substantial value for or because of acts within his official
responsibility performed or to be performed by him.[2] In so
doing, O'Toole violated G.L. c. 268A, s.3(b).[3]

12. The Commission is aware of no evidence that the
entertainment referenced above was provided to O'Toole 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 O'Toole 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]

13. O'Toole fully cooperated with the Commission's
investigation.

In view of the foregoing violations of G.L. c. 268A by
O'Toole, 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 O'Toole:

(1) that O'Toole pay to the Commission the sum of one
thousand dollars ($1,000.00) for violating G.L. c. 268A,
s.3(b);[6]

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

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(3) that O'Toole 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 O'Toole.

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

[6] O'Toole reimbursed Middlesex the $250 cost of the 1992 gratuity
after being informed that his actions probably violated the
conflict of interest law. He did not reimburse Middlesex for the
1991 gratuity. The $1,000 fine is three times the approximate
value of $420 in prohibited gratuities (minus the $250
reimbursement) received by O'Toole in violation of s.3.

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