Docket No. 503

In the Matther of Anthony Salamanca

October 12, 1994

Disposition Agreement




This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Anthony
Salamanca ("Salamanca") 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
Salamanca 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 Salamanca
violated G.L. c. 268A, s.3.

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

1. At all times here relevant, Salamanca was employed by the
Massachusetts Highway Department ("MHD") as a district highway
director. As such, Salamanca 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 district highway director, Salamanca was
responsible for all construction and maintenance work performed in
the district by state contractors, including Middlesex.

4. During 1991, Middlesex 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

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foster goodwill with employees and individuals doing business with
Middlesex. The party included cocktails, dinner, entertainment and
overnight hotel accommodations for certain guests.

6. Salamanca 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 successfully bid for MHD contracts
valued at over $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. Salamanca and his wife attended the Middlesex party and
stayed overnight at the Marriott as Middlesex's guests. The cost
to Middlesex was approximately $170.

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 district highway
director, he was responsible for all construction and maintenance
work performed in the district by state contractors, and where he
had been involved in prior Middlesex contracts and was likely to be
involved in future Middlesex contracts, Salamanca 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, Salamanca 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 Salamanca 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 Salamanca 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. Salamanca fully cooperated with the Commission's
investigation.

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

(1) that Salamanca pay to the Commission the sum of eight
hundred and fifty dollars ($850.00) for violating G.L. c.
268A, s.3(b);[6]

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

(3) that Salamanca 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

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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 Salamanca.

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

[6] Salamanca reimbursed Middlesex the 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 $850 fine is three times the approximate value
of the $340 in prohibited gratuities (minus the $170 reimbursement)
received by Salamanca in violation of s.3.

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