Docket No. 456

In the Matter of Michael Murphy

October 20, 1992

Disposition Agreement




This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Michael
Murphy pursuant to Section 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 September 11, 1991, the Commission initiated, pursuant to
G.L. c. 268B, s.4(j), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A. The
Commission has concluded its inquiry and, on September 10, 1992,
found reasonable cause to believe that Mr. Murphy violated G.L.
c. 268A, s.3.

The Commission and Mr. Murphy now agree to the following
findings of fact and conclusions of law:

1. At all times here relevant, Mr. Murphy was the Winchendon
Department of Public Works (DPW) superintendent. As such, Mr.
Murphy was a municipal employee as that term is defined in G.L.
c. 268A, s.1.

2. As the DPW superintendent, Mr. Murphy is responsible for
the maintenance and reconstruction of the town roads in
Winchendon and for the operation of the Winchendon Highway
Department.

3. In the Town of Winchendon, the town paving contract
(herein after referred to as "the contract") is put out to bid
and awarded annually by the selectmen. The contract covers
Winchendon's paving needs for a 12 month period.

4. As the DPW superintendent, Mr. Murphy participates in the
annual bidding and contract award process. Winchendon annually
advertises the availability of the contract. The advertising is
conducted by the town manager. When the bids are received, Mr.
Murphy reviews them and makes a recommendation to the town
manager. The contract is generally awarded to the lowest bidder.
After the contract is awarded, Mr. Murphy (as the DPW
superintendent) and the town manager are responsible for
determining town paving needs covered by the contract (i.e. for
ordering paving and/or paving materials pursuant to the contract)
and for overseeing the contractor's performance of its
obligations under the contract.

5. The P.J. Keating Company (Keating) is an asphalt
manufacturing and construction corporation doing business in
Massachusetts. During the times here relevant, a substantial
portion of Keating's business consisted of municipal paving
contracts.

6. In June 1987, Keating submitted the low bid for the
Winchendon contract. Mr. Murphy reviewed the bids and recommended
the selectmen award the contract to Keating, which they did on
June 22, 1987. Mr. Murphy supervised Keating's performance of the
contract.[1] Thus, he insured that the proper thickness of
asphalt was laid down, signed delivery slips acknowledging the
town's receipt of specified amounts of materials, and reviewed
and approved Keating's bills regarding the materials delivered. |

7. At some point in 1987, Mr. Murphy approached one of
Keating's employees (who was involved in paving Winchendon
streets pursuant to the contract) and asked him if Keating would
pave Mr. Murphy's driveway at his personal residence in
Winchendon.

8. On the morning of July 29, 1987, Keating did a certain
amount of paving in Winchendon pursuant to the contract. After
completing that paving, Keating employees went to Mr. Murphy's
house, waited for the asphalt material to be delivered from the
Keating plant and then paved Murphy's driveway.

9. Approximately 60 tons of asphalt materials were used to
pave Mr. Murphy's driveway at a fair market cost of approximately
$2,000 (labor and materials).

10. Mr. Murphy never expected to pay nor was he ever billed
by Keating for the driveway. Keating absorbed the material and
labor costs associated with Mr. Murphy's driveway.[2] Mr. Murphy
informed the town manager on the day of the paving that Keating
was going to pave his driveway, however, Murphy did not tell the

Page 613

town manager that Keating was providing the driveway to him
(Murphy) without charge nor did he put the disclosure in writing.

11. In paving Mr. Murphy's driveway without charge, Keating
employees were motivated in part by the fact that Mr. Murphy was
the Winchendon DPW superintendent who, as such, had and would
perform official acts regarding Keating's paving contracts with
the town. While Mr. Murphy believes that the driveway was in part
given to him by Keating because of a past relationship he had
with Keating when he was in the private sector, Mr. Murphy
acknowledges that Keating gave him the driveway in part because
of his DPW superintendent position and to foster goodwill.[3]

12. Section s.3(b) of G.L. c. 268A prohibits a municipal
employee from accepting anything of substantial value for himself
for or because of any official act or acts 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.[4]

13. By receiving a free driveway from the Keating employees,
while, as the Winchendon DPW Superintendent, he was supervising
Keating's contracts, and was involved in prior and would be
involved in future contract awards to which Keating was or would
be a bidder, Mr. Murphy received a gift of substantial value for
himself for or because of acts within his official responsibility
performed or to be performed by him.[5] In so doing, Mr. Murphy
violated G.L. c. 268A, s.3(b).[6]

In view of the foregoing violations of G.L. c. 268A, s.3(b),
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 Mr. Murphy:

1. that Mr. Murphy pay to the Commission the sum of two
thousand dollars ($2,000.00) as a civil penalty for violating
G.L. c. 268A, s.3(b);

2. that Mr. Murphy pay to the Commission the sum of two
thousand dollars ($2,000.00) as a forfeiture of the unlawful
benefit he received in accepting the free driveway;[7]

3. that Mr. Murphy will act in conformance with the
requirements of G.L. c. 268A in his future conduct as a municipal
employee; and

4. that Mr. Murphy waive all rights to contest the findings
of facts, conclusions of law and terms and conditions contained
in this Agreement or any other related administrative or judicial
proceedings to which the Commission is or may be a party.

-----------------------------------

[1] Keating received the following amounts from Winchendon
for street paving: FY 87 - $229,554.86; FY 88 - $203,745.16; FY
89 - $52,711.17; and FY 90 $56,824.22.

[2] The Town of Winchendon did not pay for either the
materials or the labor involved in paving Mr. Murphy's driveway.

[3] Even when a private relationship exists between the
giver and the public employee who is in a position to affect the
giver's interests, the evidence must show that the private
relationship was the motivating factor for the gift or s.3 is
violated. See In re Flaherty, 1990 SEC 498.

[4] See Commonwealth v. Famigletti, 4 Mass App. 584 (1976).

[5] 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.

[6] In a similar disposition agreement, Keating acknowledged
violating s.3(a) when its employees provided the above free
driveway to Mr. Murphy, who as the DPW superintendent had and
would perform official acts regarding Keating's paving contracts
with the town.

Page 614

In re Keating, 1992 SEC 610.

[7] The Commission made clear in Advisory No. 8 that in
appropriate cases it would seek to recover any economic advantage
any person obtained in violating s.3.

Page 615