Docket No. 441

In the Matter of Kevin Mullen

May 11, 1992

Disposition Agreement




This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Kevin Mullen (Mr.
Mullen) pursuant to s. 5 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 June 10, 1991, the Commission initiated,
pursuant to G.L. c. 268B, s. 4(a), a preliminary inquiry into
possible violations of the conflict of interest law, G.L. c. 268A,
by Mr. Mullen. The Commission has concluded that inquiry and, on
April 8, 1992, found reasonable cause to believe that Mr. Mullen
violated G.L. c. 268A.

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

1. At all times here relevant, Mr. Mullen was employed by the
Massachusetts Department of Public Utilities (DPU) as an inspector
assigned to the Commercial Motor Vehicle Division (CMVD).

2. The principal functions of the CMVD relate to the
administrative enforcement of the Massachusetts Motor Carrier Act,
G.L. c. 159B. That chapter regulates persons transporting property
for compensation by motor vehicles, and provides for administrative
and criminal sanctions for violation of its provisions.

3. General Laws c. 159B and the regulations promulgated
pursuant thereto require all common carriers operating in
Massachusetts to file with the DPU written

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tariff schedules showing their current prices for their services.

4. Mr. Mullen's official duties and responsibilities as a CMVD
inspector included the periodic inspection of records of common
carriers for compliance with applicable state laws and regulations,
the investigation of all complaints involving those common
carriers, and the gathering of evidence for administrative and/or
criminal prosecution of violations of the above-cited laws and
regulations. Those duties also included assisting carriers with any
questions they had with respect to the preparation of their written
tariff schedules.

5. On five occasions during 1989, Mr. Mullen participated in
a scheme by which he received from each of the common carriers
listed below $100 for preparing and filing tariff schedules:

a. John's of Freetown, Inc.;
b. John's Autobody;
c. Canton Auto & Truck Repairs, Inc.;
d. Matthers Service Station; and
e. C&P Towing Service.

6. In each of the above identified instances, Mr. Mullen
suggested to a representative of the common carrier that he could
arrange to have James Gould, Jr., a person he represented to be a
former DPU employee, prepare the tariff certificate for $100. On
each such occasion Mr. Mullen accepted a check payable to James
Gould, Jr. in the amount of $100. Mr. Mullen deposited those checks
in a joint account which he shared with Gould. Mr. Mullen and Gould
then split the proceeds from those checks. Mr. Mullen prepared and
filed the tariff certificate on each occasion.

7. Chapter 268A, s. 4(a) provides that no state employee shall
otherwise than as provided by law for the proper discharge of
official duties, directly or indirectly receive or request
compensation from anyone other than the Commonwealth or a state
agency in relation to any particular matter in which the
Commonwealth or a state agency is a party or has a direct and
substantial interest.

8. At all times here relevant, Mr. Mullen was a "state
employee" as that term is defined in G.L. c. 268A, s. 1(q).[1]

9. It was not within the proper discharge of Mr. Mullen's
official duties to receive private compensation from anyone in
connection with the preparation of a tariff certificate

10. A tariff certificate is a particular matter[2] in which
the Commonwealth has an obvious direct and substantial interest.

11. The $100 Mr. Mullen shared with Gould on each of the
above-described occasions was compensation[3] for Mullen's services
in preparing and filing the tariff certificate.

12. By receiving $100 on each of the five occasions described
above for the preparation and filing of a tariff certificate, Mr.
Mullen otherwise than as provided by law for the proper discharge
of official duties received compensation from a person other than
the Commonwealth or a state agency in relation to a particular
matter in which the Commonwealth had a direct and substantial
interest, thereby violating s. 4(a).[4]

In view of the foregoing violations of G.L. c. 268A, s. 4(a),
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. Mullen:

1. that he pay to the Commission the sum of two thousand
dollars ($2,000.00) for his course of conduct in violating G.L. c.
268A, s. 4(a);

2. that he pay the Commission the sum of five hundred dollars
($500.00) as a forfeiture of the unlawful benefit he and Gould
received by violating s. 4(a); and

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

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

[1] Mr. Mullen resigned his CMVD investigator position on
November 17, 1989.

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[2] "Particular matter,"any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s. 1(k).

[3] "Compensation" is defined as "any money or thing of value
or economic benefit conferred on or received by any person in
return for services rendered or to be rendered by himself or
another." G.L. c. 268A, s. 1(a).

[4] As the Commission stated In re Bagni, 1980 SEC 30, 32:
"Whenever state employees receive compensation from a private
interest or represent them in matters in which the state also has
an interest, there is the potential that employees will favor those
private interests at the expense of the state. Such favoritism is
especially pernicious where the state employee is receiving
compensation from a private party which has dealings with, has a
matter pending before, or is regulated by the state employee's own
agency or where the employee represents the private party in its
dealings with his or her own agency. No state employee could ever
in good faith think it appropriate to conduct private business with
the very people he is duty-bound to regulate."

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