Docket No. 612

In the Matter of David L. Phinney

February 8, 2001

Disposition Agreement





This Disposition Agreement is entered into between the State
Ethics Commission and David L. Phinney 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
Phinney. The Commission has concluded its inquiry and, on September
19, 2000, found reasonable cause to believe that Phinney violated
G.L. c. 268A.

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

1. Phinney worked as a construction specialist for the City of
Boston Public Facilities Department ("BPFD") from 1988 to October
31, 1997. As such, Phinney was a municipal employee as that term is
defined in G.L. c. 268A, s. 1. Phinney's municipal position was
full-time and salaried.

2. 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. 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 signed his approval on the forms when warranted.
Phinney's signature on the form signified that he had inspected the
project site and confirmed that the work for which payment was
being requested had in fact been performed by the contractor in a
good and workmanlike manner.

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3. Patrick Oser is a building contractor. During the period
here relevant, Oser did business as Oser Builders and as The Oser
Corporation. ("Oser," as hereinafter used, means and refers to
Patrick Oser, Oser Builders and/or The Oser Corporation.)

4. In 1994 and 1995, the 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.

5. Pursuant to the BPFD contracts, Oser was required to submit
requisitions to the BPFD as construction proceeded, requesting
payment from the loan funds for "hard" costs (e.g., construction
labor and materials) and "soft" costs (e.g., insurance and other
overhead).

6. Shortly after Oser received the first BPFD contract,
Phinney and Oser entered into an arrangement pursuant to which Oser
would pay Phinney to prepare the parts of Oser's requisitions to
the BPFD requesting payment for hard costs. Phinney requested and
Oser agreed to pay Phinney between $250 and $400 per requisition.

7. Between September 1994 and October 1996, Phinney prepared
for Oser 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 certifying that be had, in his official capacity,
inspected the work required for the payment and found it to have
been performed in a good and workmanlike manner. 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. Pursuant to the requisitions,
Oser was paid a total of more than $500,000. Oser, in turn, paid
Phinney a total of approximately $5,000 for preparing the hard cost
portions of the requisitions.

10. In 1995, in addition to preparing the hard costs portions
of BPFD payment requisitions for Oser, Phinney was hired by Oser to
do construction management work in connection with a home
renovation in South Weymouth. Oser paid Phinney over $3,000 for
this non BPFD related work.

11. Phinney did not disclose any of his private work for Oser
to his appointing authority.

12. Long & Gordon is a real estate development company. In
1996 and 1997, Long & Gordon had three contracts with the BPFD
relating to the rehabilitation of several buildings in Boston.
Phinney acted as the BPFD construction specialist on each of these
projects, inspecting the progress of the work and reviewing and
approving Long & Gordon's BPFD payment requisitions as to hard
costs.

13. In late 1996, Long & Gordon hired Phinney as a part-time,
private consultant to review subcontractor bids and to perform cost
analysis on company projects that did not involve the BPFD or the
City of Boston. Phinney did not prepare any Long & Gordon
requisitions or parts thereof for submission to the BPFD.

14. Phinney worked as a private consultant for Long & Gordon
from October 1996 through June 1997. Long & Gordon paid Phinney
$5,000 for this work.

15. Phinney did not disclose any of his private work for Long
& Gordon to his appointing authority.

16. Phinney resigned from the BPFD in late October 1997, when
his private dealings with Oser and Long & Gordon first became known
to his BPFD superiors.

17. Phinney fully cooperated with the Commission's
investigation of this matter.

18. Section 17(a) of G.L. c. 268A, prohibits a municipal
employee from, otherwise than as provided by law for the proper
discharge of official duties, directly or indirectly receiving or
requesting compensation from anyone other than the municipality or
an agency thereof in relation to any particular matter in which the
municipality is a party or has a direct and substantial interest.

19. Each decision by or on behalf of the BPFD to approve
Oser's requisitions for payment was a particular matter.[1]

20. The City of Boston had direct and substantial interests in
the BPFD's decisions to approve Oser's requisitions for payment.

21. Thus, each time that Phinney requested or received payment
from Oser for helping to prepare Oser's

Page 994

payment requisitions to the BPFD, Phinney requested or received compensation from a party other than the City of Boston or a Boston municipal agency in relation to a particular matter in which the City of Boston had a direct and
substantial interest. The compensation that Phinney requested and
received from Oser was not as provided by law for the proper
discharge of Phinney's official duties as a construction
specialist. Therefore, each time Phinney requested or received
compensation from Oser for helping to prepare the BPFD
requisitions, he violated s. 17(a).

22. Section 19 of G.L. c. 268A prohibits a municipal employee
from participating as such an employee in a particular matter in
which, to his knowledge, he has a financial interest.

23. Phinney participated as a municipal employee in the
particular matters of the BPFD's decisions to approve Oser's
payment requisitions by personally approving the hard costs
portions of the requisitions in his official capacity as a BPFD
construction specialist.[2]

24. If the requisitions that Phinney had helped Oser prepare
had been rejected by the BPFD and not been paid, Oser would likely
have terminated the private arrangement with Phinney. Thus, Phinney
had a financial interest in the BPFUs approval of the Oser
requisitions.[3] Phinney knew of his financial interest in the
BPFUs approval of the Oser requisitions at the time that he
approved the hard costs portions of them as a BPFD construction
specialist.

25. Therefore, each time that Phinney, as a BPFD construction
specialist, approved the hard costs portions of an Oser payment
requisition that he had prepared, Phinney participated in a
particular matter in which, to his knowledge, he had a financial
interest. Each time that he did so, Phinney violated s. 19.

26. Section 23(b)(3) of G.L. c. 268A, prohibits a municipal
employee from, knowingly or with reason to know, acting in a manner
which would cause a reasonable person, having knowledge of the
relevant circumstances, to conclude that any person can improperly
influence or unduly enjoy his favor in the performance of his
official duties, or that he is likely to act or fail to act as the
result of the undue influence of any person or party. Section
23(b)(3) further provides that "[i]t shall be unreasonable to so
conclude if [the employee] has disclosed in writing to his
appointing authority ... the facts which would otherwise lead to
such a conclusion."

27. A reasonable person, with knowledge of the above-stated
circumstances, would conclude from Phinney's approval of Oser's
requisitions as to hard costs, contemporaneously with his private
paid BPFD requisition preparation and South Weymouth project

Page 994


administrative work for Oser, that Oser could improperly influence
Phinney or unduly enjoy his favor in the performance of his
official duties as a BPFD construction specialist. Accordingly, by
contemporaneously working privately for Oser and approving, as a
BPFD construction specialist, Oser's payment requisitions as to
hard costs, Phinney violated s.23(b)(3). Phinney at no time made
the disclosure to his appointing authority required to avoid
violating s.23(b)(3).

28. Finally, a reasonable person, with knowledge of the
above-stated circumstances, would conclude from Phinney's approval
of Long & Gordon's requisitions as to hard costs, contemporaneously
with his private paid consulting arrangement with the company, that
Long & Gordon could improperly influence Phinney or unduly enjoy
his favor in the performance of his official duties as BPFD
construction specialist. Accordingly, by contemporaneously working
as a paid private consultant for Long & Gordon and, as a BPFD
construction specialist, approving the company's payment
requisitions as to hard costs, Phinney violated s.23(b)(3). Phinney
at no time made the disclosure to his appointing authority required
to avoid violating s.23(b)(3).

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

(1) that Phinney pay to the Commission the sum of $8,500 as a
civil penalty for violating G.L. c. 268A;

(2) that Phinney pay to the Commission the sum of $5,000 as a
civil forfeiture of the compensation he received for preparing
requisitions submitted to the BPFD in violation of G.L. c.
268A, s.17(a); and

(3) that Phinney 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.




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[1] "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. I (k).

[2] "Participate" means to participate in agency action or in
a particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s. 1(j).

[3] "Financial interest" means any economic interest of a
particular individual that is not shared with a substantial segment
of the population of the municipality. See Graham v McGrail, 370
Mass. 133, 345 N.E. 2d 888 (1976). This definition has embraced
private interests, no matter how small, which are direct, immediate
or reasonably foreseeable. See EC-C01-84-98, The interest can be
affected in either a positive or negative way. See EC-COI-84-96.