Docket No. 447

In the Matter of Rudy Banks

July 9, 1992

Disposition Agreement




This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Rudy Banks
(Mr. Banks) 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 March 12, 1992, 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.
Banks. The Commission has concluded its inquiry and, on May 14,
1992, found reasonable cause to believe that Mr. Banks violated
G.L. c. 268A.

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

1. Mr. Banks was, during the time here relevant, a member of
the Board of State Examiners of Plumbers and Gas Fitters (Board).
As such, Mr. Banks was a state employee as that term is defined
in G.L. c. 268A, s.1. Mr. Banks has continued to serve on the
Board to the present time.

2. The Board consists of nine members. It is responsible for
regulating plumbers and gas fitters, which it does in part by
administering licensing examinations. The Board is also
responsible for promulgating a state plumbing code and granting
variance requests from that code's requirements.

3. The Board has a seven-member Plumbing Subcommittee
(Subcommittee) which specializes in plumbing issues only. The
Subcommittee makes recommendations regarding various plumbing
matters, including the granting of variance applications (from
the State Plumbing Code) to the Board.

4. Mr. Banks is a master plumber. During the time here
relevant, while sitting as a member of the Board, he has also
served on the Subcommittee.

5. In early 1990, Napoli Pizza of Westfield, Massachusetts
applied for a liquor license before the local licensing
commission. That commission informed Napoli Pizza that it would
have to install a handicapped restroom. In July 1990, Napoli
Pizza applied for a building permit to install a unisex
handicapped bathroom (by enlarging one of its two existing
bathrooms). The Westfield Building Department informed Napoli
Pizza that it would need a variance from the State Plumbing Code
(248 CMR

Page 595

s.2.10 19(h)), which requires a commercial establishment such as
Napoli Pizza to have a bathroom for each sex. On July 25, 1990,
the Subcommittee approved Napoli Pizza's variance application.
Banks was present and voted in favor. On August 1, 1990, the
Board voted to ratify the Subcommittee's action. Banks voted in
favor.

6. By letter dated August 21, 1990, the Board notified
Napoli Pizza and the Westfield plumbing inspector that on August
1, 1990, the Board voted to grant Napoli Pizza a variance from
248 CMR s.2.10(19)(h) provided the unisex facility was kept
locked.

7. Mr. Banks has a son Raymond who is also a master plumber.
In early September 1990, Raymond applied to the Westfield
plumbing inspector for a plumbing permit for the unisex bathroom
at Napoli Pizza. At or about the same time, the Westfield
plumbing inspector denied the permit, because he had not received
a satisfactory written explanation from the Board as to the
variance.

8. By letter dated September 5, 1990, the Westfield plumbing
inspector wrote to the Board questioning the granting of the
variance. He represented that he was being informed by the
attorney for Napoli Pizza that the Board had voted to allow one
unisex and one men's bathroom. The inspector insisted that the
law requires that a commercial establishment maintain one men's
bathroom and one women's bathroom, as well as the unisex
handicapped bathroom.

9. In late September, 1990, Raymond reapplied for the
plumbing permit for Napoli Pizza. At or about the same time,
Raymond informed Mr. Banks of the problem he was having with the
local plumbing inspector.

10. Thereafter, at its September 26, 1990 Subcommittee
meeting, the Subcommittee voted to allow a variance based on the
handicapped unisex bathroom being used by the public and the
remaining bathroom being designated a unisex bathroom for
employees. Mr. Banks voted in favor of the variance. On October
3, 1990, the Board approved the Subcommittee's decision to
clarify the variance. Mr. Banks voted in favor.

11. On October 12, 1990, the Westfield plumbing inspector
granted the permit to Napoli Pizza for construction of a unisex
bathroom.

12. General Laws chapter 268A, s.6 prohibits a state
employee from participating as such in a particular matter in
which to his knowledge a member of his immediate family has a
financial interest.

13. The decisions by the Subcommittee and then the Board to
ratify the Napoli Pizza variance were particular matter.[1]

14. Mr. Banks participated[2] in those particular matters by
voting to approve the variance.

15. At the time he so voted, he was aware that his son would
be doing the plumbing work which was the subject of the variance.
Therefore, he knew that his son had a financial interest in those
particular matters.

16. Therefore, by voting in late September and early October
as a Board member to approve the Napoli Pizza variance, Mr. Banks
participated as a state employee in particular matters in which
to his knowledge an immediate family[3] member had a financial
interest, thereby violating s.6.

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


1. that Mr. Banks pay to the Commission the sum of two
hundred and fifty dollars ($250.00) as a civil penalty for
violating G.L. c. 268A, s.6; and

2. that Mr. Banks 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] "Particular matter, n 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

Page 596

for special laws related to their governmental organizations,
powers, duties, finances and property. G.L. c. 268A, s.1(k).

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

[2] "Participate," 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] A son is an immediate family member. G.L. c. 268A,
s.1(e).