Docket No. 376

In the Matter of John DeOliveira

December 13, 1989

Disposition Agreement




This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) ad John DeOliveira (Mr.
DeOliveira) pursuant to Section 11 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 July 27, 1987, 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. DeOliveira of
Berkley. The Commission has concluded that inquiry and, on January
11, 1989, found reasonable cause to believe that Mr. DeOliveira
violated G.L. c. 268A, s.19.

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

1. At the time here relevant, Mr. DeOliveira was a selectman of
the Town of Berkley. Mr. DeOliveira was elected as a Berkley
selectman on May 6, 1986 and served until June 27, 1987. Mr.
DeOliveira was, therefore, during the period here relevant, a
municipal employee as defined in s.1(g) of G.L. c. 268A.

2. Mr. DeOliveira's wife, Elaine DeOliveira (Elaine), is
employed full-time by the Town of Berkley as a police dispatcher
and was employed as such while Mr. DeOliveira was a selectman. The
terms and conditions of employment for police dispatchers are
negotiated between the selectmen and the bargaining unit
representing the dispatchers.

3. In 1986, contract negotiations occurred between the selectmen
and the bargaining unit representing the dispatchers. Mr.
DeOliveira was

Page 431

present at at least some of these negotiations but did not
participate in the discussions.

4. At a selectmen's meeting on November 26, 1986, the selectmen
were presented with the individual contracts for each of the
employees who were represented by the bargaining unit, including
the dispatchers. In all, there were about twenty contract sheets
for the selectmen to sign that evening. Mr. DeOliveira, along with
the other selectmen, signed all twenty of the contract sheets,
including that of his wife Elaine. At the next selectmen's meeting,
approximately one week later, Mr. DeOliveira went to the
selectmen's files and pulled out the copy of his wife's contract
that was stored there. Mr. DeOliveira then crossed out his
signature on the copy he removed from the file and returned the
copy to the file.

5. Section 19 of G.L. c. 268A provides in relevant part that,
except as permitted by s.19,[1] a municipal employee is prohibited
from participating as such an employee in a particular matter in
which, to his knowledge, a member of his immediate family has a
financial interest.

6. The approval of Elaine's contract sheet was a particular
matter within the meaning of s.19. Mr. DeOliveira participated in
that matter by signing the contract sheet. Because the contract
sheet determined the terms and conditions of Elaine's employment,
Elaine had, at the time of the signing of the contract sheet, a
financial interest in the selectmen's approval of the contract
sheet. Mr. DeOliveira was aware at the time he signed the contract
sheet that the approval of the contract sheet would affect the
financial interests of Elaine.

7. By signing his wife's contract sheet, as described above, Mr.
DeOliveira' participated as a selectman in a particular matter in
which his wife had a financial interest, thereby violating G.L. c.
268A, s.19.

In view of the foregoing violation of G.L. c. 268A, s.19, 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 agreed to by Mr.
DeOliveira:

1. that Mr. DeOliveira pay to the Commission the amount of two
hundred fifty dollars ($250.00)[2] as a civil penalty for
violating G.L. c. 268A, s.19; and

2. that Mr. DeOliveira waive all rights to contest the findings
of fact, conclusions of law, and terms and conditions contained
in this agreement and any related administrative or a judicial
civil proceeding to which the Commission is or may be a party.

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[1] None of the s.19 exceptions applies in this case.

[2] While the Commission can impose a fine of up to $2,000 for each
violation of s.19, it has determined that the relatively small fine
imposed here is appropriate where the actions constituting the s.19
violation consisted of Mr. DeOliveira's participating in only the
formal acceptance and execution of an employment contract (i.e.,
Mr. DeOliveira's wife's), in the actual negotiation of which Mr.
DeOliveira did not participate.