Docket No.: 312


IN THE MATTER OF FRANCIS M. MAGLIANO


October 29, 1986


DISPOSITION AGREEMENT


This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Francis M. Magliano
(Mr. Magliano), pursuant to section 11 of the Commission's
Enforcement Procedures. This Agreement constitutes a consented to
final Commission order enforceable in the Superior Court pursuant
to G.L. c. 268B, s.4(j).

On May 20,1986, the Commission initiated a preliminary inquiry
into possible violations of the conflict of interest law, G.L. c.
268A, involving Mr. Magliano, the building superintendent for the
city of Brockton. The Commission concluded its inquiry and, on July
29,1986, found reasonable cause to believe that Mr. Magliano
violated G.L. c. 268A, s.3(b). Pursuant to G.L. c. 268B s.4(c), the
Commission also authorized the initiation of an adjudicatory
proceeding to determine whether there has been a violation. An
Order to Show Cause issued on August 25,1986, initiating such a
proceeding.

The parties now agree to the following findings of fact and
conclusions of law:

1. From January, 1984 to the present. Carl D. Pitaro has been
the elected Mayor of Brockton. As Mayor of the city of Brockton,
Mr. Pitaro is a municipal employee as that term is defined in G.L.
c. 268A, s. 1(g).

2. From January, 1984 to the present, Francis'!. Magliano has
been the building superintendent for the city of Brockton. As
building superintendent, r. Magliano is a municipal employee as
that term is defined in G.L. c. 268A, s.1(g).

3. James C. Mihos is a resident of Brockton, Massachusetts.
Since 1979, his family has owned a parcel of land on Pleasant
Street in Brockton which is the proposed site of a new hotel
project. (The land is owned by James and Peter Mihos, Trustees of
the 167 Pleasant Street Trust.)

4. In the fall of 1984, Mr. Mihos entered into an agreement with
Ocean Properties Limited, a Florida development company, to sell
7.3 acres of the 36 acre parcel on Pleasant Street to Ocean
Properties Limited for development as a hotel project. Under the
city of Brockton's zoning ordinances, the parcel was zoned for
"Office Commercial" use, which did not allow for a hotel. The Mihos
agreement with Ocean Properties Limited was contingent on Ocean
Properties obtaining all the necessary permits, including a permit
to allow a hotel to be built on the parcel.

5. In late March, 1985, Mr. Mihos met with Mr. Magliano in city
hall to discuss the possibility of a hotel on this site. At this
meeting, Mr. Magliano advised Mr. Mihos of the zoning issues and
explained two possible options: a special permit or a zoning change
by the city council. As a developer and citizen of Brockton, Mr.
Mihos was aware of a prior proposed hotel project which failed to
win support in the city partly because the project did not include
a "name" hotel or conference facilities and a question had been
raised concerning the quality of the construction. Consequently,
Mr. Mihos requested Mr. Magliiano to set up a meeting for him with
Mayor Pitaro to discuss the city's concerns regarding the quality
of the construction and nature of facilities being proposed.

6. Shortly after the initial meeting between Mr. Mihos and Mr.
Magliano, Mr. Magliano and Mr. Mihos met with Mr. Pitaro in city
hall to discuss the proposed hotel project. In the course of this
discussion. Mr. Mihos invited Mr. Pitaro and Mr. Magliano to
accompany him to Florida to see other hotels developed by Ocean
Properties Limited in order to observe the quality of construction
and the type of facilities that this company developed, as well as
to meet the personnel who would be involved in the Brockton
project. Mihos also invited Mr. Pitaro and Mr. Magliano to bring
their spouses tin the trip. While Mihos intended to pay for the
costs of the trip, Mr. Pitaro ad Mr. Magliano originally intended
to pay their own costs.

Page 274

7. Mr. Mihos obtained airline tickets through a Canton travel
agency and paid $238.00 for each of the six round-trip coach fare
tickets on April 3, 1985. Mr. Pitaro and Mr. Magliano previously
had attempted to buy their own tickets through a different agency.

8. On Friday, April 12, 1985, the Pitaros, Maglianos, and
Mihoses flew from Boston to Miami, Florida, arriving in Miami at
approximately 1:30 pm. Mr. Mihos rented one car at a cost of
$149.00 and the six drove to Delray Beach, arriving at their hotel
at approximately 6 pm.

9. Mr. Mihos had also arranged to have all six members in the
party stay at the Holiday Inn at Delray Beach in Florida, a hotel
developed by Ocean Properties. The hotel accommodations (at a cost
of $192.00 per couple for three nights) were paid for by Ocean
Properties. While in Florida, the three couples shared the cost of
their meals.

10. On Saturday, the Pitaros, Maglianos and Mihoses, driven and
escorted by a representative of Ocean Properties, Ltd., examined
several hotels, an office complexand a construction site all
developed or being developed by Ocean Properties. On Sunday, after
attending church, the six again joined one of the principals of
Ocean Properties, Ltd. on his boat. On Monday, April 15,1985,
Patriots Day and a legal holiday, the six drove back to Miami in
the vehicle rented by Mr. Mihos and took a 12:20 pm. flight back
to Boston arriving at approximately 3:30 p.m.

11. Prior to the Florida trip, Mr. Pitaro had publicly supported
the construction in Brockton of a quality "name" hotel complex
which would include conference facilities. Upon his return from
Florida, Mr. Pitaro spoke publicly in support of the proposed hotel
project on the Mihos parcel of land at public meetings, monthly
press conferences and before various service groups

12. The proposal to rezone part of the Mihos' property to
"General Commercial" was submitted to the City Council June
17,1985. It passed the Finance Committee and was the subject of
public hearings before the Planning Board and Council Ordinance
Committee before being passed by a 2/3 vote of the full City
Council on October 15,1985.

13. The ordinance was presented to Mayor Pitaro on October 18,
1985. Pursuant to the Brockton city charter the Mayor has the
authority to: (1) sign the amendment into law; (2) veto the
amendment and return it to the Council with his objections, at
which time it can still become law upon another 2/3 vote of the
Council; or (3) take no action on the amendment, at which point the
amendment becomes law within 10 days of it being presented to the
Mayor. The Mayor signed the ordinance rezoning part of Mihos' land
on October 18,1985, the same day it was presented to him.

14. As building superintendent, Mr. Magliano would be
responsible for issuing building permit(s) for the hotel complex
after reviewing the plans and specifications submitted by the
developer and for ensuring the project was in compliance with the
state building code and the local zoning ordinances.

15. General Laws chapter 268A, s.3(b) prohibits a municipal
employee from directly or indirectly receiving for himself anything
of substantial value, otherwise than as provided by law for the
proper discharge of offical duty, for or because of any official
act performed or to be performed by him.

16. Based upon the facts and conduct set forth in paragraphs 1
through 14, above, Mr. Magliano violated s.3(b).

17. The Commission has found no evidence suggesting corrupt
intent or an intentional or knowing violation of the law by Mr.
Magliano.

Based on the foregoing facts, 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 agreed to by Mr. Magliano:

1. that he pay to the Commission the amount of one thousand
dollars ($1,000) as a civil penalty for his violation of s.3(b);

2. that he pay to the Commission the amount of $668.00 as
forfeiture of the economic advantage gained; and

3. that he waive all rights to contest the findings of fact,
conclusions of law and terms and conditions under this Agreement
in this or any related administrative or judicial civil proceedings
in which the Commission is a party.

End Of Decision