Docket No. 611
In the Matter of Patrick J. Oser
February 8, 2001
This Disposition Agreement is entered into between the State
Ethics Commission and Patrick J. Oser pursuant to Section 5 of the
Commission's Enforcement Procedures. This agreement constitutes a
consented-to order enforceable in the Superior Court, pursuant to
G.L. c. 268B, s.40).
On December 15, 1999, the Commission initiated, pursuant to
G.L. c. 268A, s.4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by Oser.
The Commission has concluded its inquiry and, on December 13, 2000,
found reasonable cause to believe that Oser violated G.L. c. 268A.
The Commission and Oser now agree to the following findings of
fact and conclusions of law:
1. Oser is a building contractor based in Boston. During the
period here relevant, Oser did business as Oser Builders and as The
2. In 1994 and 1995, the City of Boston Public Facilities
Department ("BPFD") awarded Oser contracts to renovate four
buildings in Boston. The BPFD contracts provided that Oser would
receive construction and subsidy loans from the BPFD to acquire and
renovate the properties for resale to first-time home buyers.
3. Pursuant to the BPFD contracts, as the renovations
proceeded in 1994, 1995 and 1996, Oser was required to submit
requisitions to the BPFD requesting payment from the loan funds for
"hard" costs (e.g., construction labor and materials) and "soft"
costs (e.g., insurance and other overhead).
4. During the period here relevant, David L. Phinney worked as
a construction specialist for the BPFD. As such, Phinney was a
municipal employee as that term is defined in G.L. c. 268A, s. 1.
5. As part of his duties and responsibilities as a BPFD
construction specialist, Phinney monitored the status and progress
of housing rehabilitation projects done under contract with the
BPFD, including Oser's projects. Phinney regularly visited project
sites and performed inspections. In addition, as a construction
specialist, Phinney received payment requisition forms from the
contractors, reviewed the forms and, when warranted, signed his
approval on the forms certifying that he had, in his official
capacity, inspected the work required for the payment and found it
to have been performed in good and workmanlike manner.
6. Shortly after Oser received the first BPFD contract,
Phinney and Oser entered into an arrangement pursuant to which Oser
agreed to compensate Phinney for preparing the parts of Oser's
requisitions to the BPFD requesting payment for hard costs.
7. Between September 1994 and October 1996, Oser had Phinney
prepare the hard costs portions of approximately twenty-three
requisitions for payment by the BPFD.
8. After Phinney prepared the hard costs sections of each of
Oser's requisitions, he signed each as a BPFD construction
specialist making the certification described above. In so doing,
Phinney, as a BPFD construction specialist, approved the hard costs
portion of each Oser requisition for payment by the BPFD.
9. After privately preparing, and in his official capacity
approving, the hard costs portions of the requisitions, Phinney
gave them to Oser. Oser then prepared the portions of the
requisitions relating to soft costs, and submitted the complete
requisitions to the BPFD for payment.
10. Pursuant to the requisitions, Oser was paid a total of
more than $500,000. Oser, in turn, knowingly, directly and
indirectly, paid Phinney a total of approximately $5,000 for
preparing the hard cost portions of the requisitions.
11. Section 17(b) of G.L. c. 268A, prohibits anyone from
knowingly, otherwise than as provided by law for the proper
discharge of official duties, directly or indirectly offering,
promising or giving compensation to a municipal employer in
relation to any particular matter in which the same municipality is
a party or has a direct and substantial interest.
12. Each of Oser's requisitions for payment by the BPFD and
each decision by or on behalf of the BPFD to approve Oser's
requisitions for payment was a particular matter.
13. The City of Boston had direct and substantial Interests in
Oser's requisitions for payment and the BPFD's decisions to approve
those requisitions in part because the requisitions and payments
were pursuant to a contract to which the city was a party. At all
relevant times, Oser knew of the city's interest in the BPFD
14. As a BPFD construction specialist, Phinney was a Boston
municipal employee. At all relevant times, Oser knew that Phinney
was a Boston municipal employee.
15. Thus, by, as described above, knowingly, directly or
indirectly, offering, promising and giving Phinney compensation for
helping to prepare Oser's payment requisitions to the BPFD, Oser
knowingly offered, promised and gave compensation to a Boston
municipal employee in relation to a particular matter in which the
City of Boston had a direct and substantial interest.
16. The compensation that Oser offered, promised or gave to
Phinney was not as provided by law for the proper discharge of
Phinney's official duties as a construction specialist.
17. Therefore, each time Oser offered, promised or gave
compensation to Phinney for helping to prepare the BPFD
requisitions, Oser violated s. 17(b) Oser fully cooperated with
the Commission's investigation of this matter.
In view of the foregoing violations of G.L. c. 268A by Oser,
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 Oser:
(1) that Oser pay to the Commission the sum of $3,500 as a
civil penalty for violating G.L. c. 268A; and
(2) that Oser 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
 The Commission is not aware of any evidence that Oser
failed to perform any work for which he was paid under his BPFD
 "Particular matter" means 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).
 According to Oser, he was not aware at the time of his
above-described actions that he was violating the conflict of
interest law, G.L. c. 268A. Ignorance of the law is, however, no
defense to a violation of the conflict of interest law. In re
Doyle, 1980 SEC 11, 13; see also Scola v. Scola, 318 Mass. 1, 7