In the Matter of Michael A. Caliri

March 12, 2001

Disposition Agreement


This Disposition Agreement is entered into between the State
Ethics Commission and Michael A. Caliri pursuant to Section 5 of
the Commission's Enforcement Procedures. This Agreement constitutes
a consented-to final order enforceable in the Superior Court,
pursuant to G.L. c. 268B, s.40).

On January 19, 2000, 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 Caliri.
The Commission has concluded the inquiry and, on August 23, 2000,
found reasonable cause to believe that Caliri violated G.L. c.
268A.

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

1. Caliri is the director of maintenance and custodial
services ("maintenance director") for the Randolph public schools
("School Department"). Caliri was appointed to this full-time,
salaried position by the Randolph superintendent of schools ("the
superintendent") on or about January 21, 1997.

2. As maintenance director, Caliri, among other duties,
schedules, supervises and oversees the work of all School
Department custodial and maintenance personnel (including
electricians, plumbers and carpenters) and of private vendors
providing maintenance and repair services to the School Department.
In addition, Caliri authorizes overtime work pursuant to the
governing collective bargaining agreement and signs off on weekly
payroll/attendance sheets for all School Department custodial and
maintenance personnel.

3. In early 1997, Caliri and his wife contracted to purchase
land for a new house in the Manomet section of Plymouth. In
February 1997, the Caliri's contracted with a builder to build the
weather tight shell of the house for $70,000. Pursuant to the
contract, the Caliri's were responsible for the wiring, plumbing,
heating, insulation, exterior paint and all interior finish work
for the house.

4. Also in early 1997, Caliri approached School Department
employee Thomas Steele at work and asked if Steele would build the
kitchen cabinets and countertops and bathroom vanities for the new
house. Steele is a special education teacher who also performs
cabinetry work in the maintenance department part-time during the
school year and full-time during the summer. Caliri coordinates
Steele's cabinetry work with the superintendent's office and signs
off on Steele's timesheets during the summer; however, Steele's
hours of work, compensation and work assignments are determined by
the superintendent, not Caliri. For many years prior to 1997,
Steele had privately made and sold cabinets, countertops and
vanities out of his home wood shop. By 1997, however, Steele had
ceased that business activity and was instead doing cabinet work
only for family and friends. According to Caliri, he was not aware
that Steele had curtailed his business activities when he
approached Steele to discuss the cabinet work. Caliri and Steele
had a friendly work relationship but did not socialize outside of
work. Steele agreed to do the work that Caliri requested for
$3,500, a price that was unilaterally set by Steele. Caliri
purchased all the cabinet hardware separately. Steele built and
installed Caliri's countertops, cabinets and vanities between April
and November 1997. Caliri paid Steele his price for his work as
agreed.

5. In early 1997, Caliri asked a School Department vendor,
Williams Coal & Oil Co. ("Williams Coal & Oil") of Braintree, to
furnish and install the heating system, to rough-in the air
conditioning system and to furnish (except for certain fixtures
purchased by Caliri) and install the plumbing in his new house. The
company agreed to do the plumbing, heating and air conditioning
work for Caliri. The company performed the work between April and
October 1997 and charged Caliri $9,350, a price that was
unilaterally set by the company. Caliri paid Williams Coal & Oil
its price for the work in several installments ending in early
1998. Around the time when Williams Coal & Oil performed the work
at Caliri's new house, the company was one of several vendors
providing price quotes for various plumbing and heating jobs
required by the School Department. Between March and June 1997,

Page 995

the company was selected, based upon its price, to perform and did
perform $3,300 worth of plumbing work for the School Department
under Caliri's oversight as maintenance director.

6. In early 1997, Caliri told School Department electrician
Joe Broderick that he was building a new house. Caliri and
Broderick had worked at the same private company for several years
prior to working at the School Department and bad become friends in
that context. In the early 1990's, Caliri had helped Broderick by
renting Broderick a three-bedroom cottage that Caliri owned on the
beach in Manomet for September through May of three years at a low
rent. Broderick wished to reciprocate for Caliri's prior help and
offered to do the wiring of Caliri's new house.

7. Broderick wired Caliri's new house, with materials supplied
by Caliri, over the course of approximately ten Saturdays during
the summer and fall of 1997. Broderick's labor in wiring Caliri's
new house was worth about $3,000. This was, however, less than the
value of the total benefit that Caliri had provided to Broderick
when he rented him the Manomet cottage. Broderick did not charge
Caliri, and Caliri did not pay Broderick anything for wiring
Caliri's new house.

8. During the late spring, summer and fall of 1997, Caliri
requested and received the assistance of School Department
maintenance worker David Kilmurray and then School Department
temporary hourly maintenance worker Ken Pignatelli with the
interior and exterior painting of his new house.[1]

9. As of spring 1997, Kilmurray and Caliri had a friendly
relationship; they occasionally socialized off the job by going
with a group of School Department maintenance workers for drinks
after work at the Randolph Amvets Post. Caliri and Kilmurray also
had gone to the dog track together on a number of occasions, and
Kilmurray had visited Caliri's home several times. In addition,
Caliri had previously loaned Kilmurray $900 without interest, which
Kilmurray paid in four months.

10. Kilmurray agreed to help Caliri and spent many weekends
and several of his vacation and personal leave days during the
summer and early fall of 1997 helping paint Caliri's house.
Kilmurray also spent a few hours one weekend helping Caliri plant
a lawn for the new house. Kilmurray did not charge Caliri, and
Caliri did not offer to pay or, in fact, pay Kilmurray anything for
his work at Caliri's new house.

11. As of spring 1997, Caliri and Pignatelli, who had known
each other for several years, were not friends and did not
socialize. Caliri had never helped Pignatelli in any private
matter.

Page 996


12. Pignatelli agreed to help Caliri and spent many weekends
during the summer and early fall of 1997 helping paint Caliri's
house. Pignatelli, who as a temporary worker did not get paid
vacation days, also, at Caliri's request, took at least one day off
without pay to help paint Caliri's house. Pignatelli did not charge
Caliri, and Caliri did not offer to pay or, in fact, pay Pignatelli
anything for his work at Caliri's new house.

13. Caliri supplied all of the paint and most of the equipment
used by Kilmurray and Pignatelli. Pignatelli supplied some of his
own brushes and drop cloths. Caliri and his wife did some of the
painting, but the substantial majority of the painting was done by
Kilmurray and Pignatelli, with Pignatelli doing significantly more
painting than Kilmurray. Kilmurray's and Pignatelli's combined
labor in painting Caliri's new house was worth about $2,500 (with
Pignatelli's labor being worth about $1,500 of that total).
Kilmurray's landscaping work for Caliri was worth about$50.

14. During the summer of 1997, School Department custodian
Joseph Callahan, at Caliri's invitation, went to Caliri's new house
with Kilmurray and Pignatelli on at least one weekend and one of
his vacation days. On one occasion, while Callahan was at Caliri's
house, Callahan helped wash windows for a few hours at Caliri's
request. On another occasion, also at Caliri's request, Callahan
spent a few hours doing landscaping work at the house, including
helping Caliri plant a large bush and rake out the top soil for the
lawn. At the time, Caliri and Callahan had a friendly relationship
and occasionally socialized off the job at the Randolph Amvets
Post, including some events which Caliri and his wife attended with
Callahan and a female friend of Caliri's wife. In addition,
Callahan and Caliri's brother Wayne Caliri are close personal
friends. As of the time that Callahan helped Caliri, Caliri, had
never helped Callahan in any private matter. Callahan's work at
Caliri's new house was worth between $60 and $100. Callahan did not
charge Caliri, and Caliri did not offer to pay or, in fact, pay
Callahan anything for his work at Caliri's new house.

15. On the days that the School Department employees helped
Caliri with his new house, Caliri and his wife provided them with
free meals and drinks in appreciation of their help. The men also
socialized with the Caliris after working on the new house,
swimming at the beach and barbecuing. Additionally, on several
weekends when Kilmurray painted, he brought his two young children
with him, and Caliri's wife watched them (together with the
Caliris' two young children) and took them to the beach while
Kilmurray painted. The Caliris also invited Callahan, Pignatelli
and Kilmurray to stay overnight at their cottage on the weekends
that they worked at the new house. Pignatelli stayed at the
Caliris' cottage several nights, Kilmurray (and his children) two
or three nights, and Callahan one or two nights during the course

Page 996


of their work on the Caliris' new house. Finally, on Labor Day
weekend, the Caliris paid for Kilmurray and his children to stay
overnight at a nearby motel.[2]

16. During the summer of 1997, Caliri, as School Department
maintenance director, signed off on weekly payroll/attendance
sheets for Steele. During the summer and fall of 1997, Caliri
signed off on weekly payroll/attendance sheets for Pignatelli, and
on several occasions authorized overtime work for Kilmurray,
Broderick and Callahan. During the period of March to December
1997, Caliri approved 145 hours of overtime for Broderick, 323
hours of overtime for Kilmurray, and 473 hours of overtime for
Callahan.[3] Pignatelli, as a temporary worker, was not eligible
for overtime. At the time, the superintendent also reviewed and
approved all overtime sheets before payment was made.

17. In October 1997, when the superintendent was considering
Pignatelli's appointment as a permanent employee, the
superintendent sought Caliri's assessment of Pignatelli. Caliri in
response gave Pignatelli his "highest praises," in part, according
to Caliri, based upon feedback about Pignatelli's work that Caliri
received from the principals of the school where Pignatelli had
worked. The superintendent subsequently appointed Pignatelli to a
permanent position.

18. At no time did Caliri disclose to his appointing
authority, the superintendent, that Caliri had requested and
received help from his School Department subordinates and a School
Department vendor in the construction of his new home and that he
was continuing to take official actions as maintenance director
concerning those subordinates and that vendor.

19. As School Department maintenance director, Caliri is a
municipal employee as defined in G.L. c. 268A, s.1. As such, Caliri
is subject to the provisions of the conflict of interest law, G.L.
c. 268A.

20. Section 23(b)(2) of G.L. c. 268A prohibits a municipal
employee from, knowingly or with reason to know, using or
attempting to use his official position to secure for himself
unwarranted privileges or exemptions of substantial value which are
not properly available to similarly situated individuals.

21. Receiving without charge services for which payment is
normally required is a privilege. The electrical, painting,
landscaping and window washing services that Broderick, Kilmurray,
Pignatelli and Callahan provided to Caliri without charge were
services for which Caliri would otherwise have been required to
pay. Accordingly, Caliri's receipt of those free services was, in
each case, a privilege within the meaning of s.23.

22. The free services which Caliri received from
his School Department subordinates Broderick, Kilmurray, Pignatelli
and Callahan were of substantial value.[4]

23. The privilege of the free painting services that Caliri
requested and received from Pignatelli was unwarranted because it
was obtained from a subordinate who did not have a private
relationship with Caliri and/or a private motive, unrelated to his
subordinate-boss relationship with Caliri, significant enough to
have independently motivated the provision of the free services in
questions.[5] Under such circumstances, free services from a
subordinate public employee are not properly available to
individuals situated similarly to Caliri, i.e., other supervising
public employees or officials.[6]

24. Given that Caliri's private (off the job) relationship
with Pignatelli was too limited to have motivated Pignatelli to
help Caliri to the extent that he did, Caliri knew or had reason to
know that Pignatelli was providing him with those free services, at
least in substantial part, because Caliri was Pignatelli's School
Department boss. This was especially true because Pignatelli was in
a vulnerable and exploitable position as a temporary hourly worker,
had only a very limited pre-existing private relationship with
Caliri, and provided a large amount and value of free painting
services to Caliri. Accordingly, by requesting and receiving
Pignatelli's help with his new house, Caliri knowingly or with
reason to know used his official position to obtain his
subordinate's free services.

25. Therefore, by requesting and receiving Pignatelli's
uncompensated help with his new house, Caliri knowingly or with
reason to know used his official position to secure for himself a
substantially valuable unwarranted privilege which was not properly
available to similarly situated persons. In so doing, Caliri
violated G.L. c. 268A, s.23(b)(2).

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, with knowledge of the
relevant circumstances, to conclude that any person can improperly
influence or unduly enjoy the employee's favor in the performance
of the employee's official duties, or that the employee is likely
to act or fail to act as a result of kinship, rank, position or
undue influence of any person or party. Section 23(b)(3) further
provides that the section is not violated if the employee "has
disclosed in writing to his appointing authority ... the facts
which would otherwise lead to such a conclusion."

27. By requesting and receiving the paid services of Steele
and Williams Coal & Oil, and by requesting and/ or receiving the
unpaid services of Broderick, Kilmurray, Pignatelli and Callahan in
connection with the construction of his new house in 1997 and by,
during the same period, in the case of the employees, assigning and

Page 997


supervising their work for the School Department, signing their
time sheets, approving their overtime and taking other actions
concerning their municipal employment, and, in the case of the
vendor, overseeing its work for the School Department, Caliri
knowingly or with reason to know, acted in a manner which would
cause a reasonable person, with knowledge of the relevant
circumstances, to conclude that Steele, Williams Coal & Oil,
Broderick, Kilmurray, Pignatelli and Callahan could unduly enjoy
Caliri's favor the or improperly influence Caliri in his
performance of his in official duties. In so acting, Caliri
violated G.L. c. 268A, s.23(b)(3). Caliri did not make the
disclosures to his ap- in pointing authority, the school
superintendent, required to avoid violating s.23(b)(3).[7]

28. Caliri's brother Wayne worked as a School to
Department custodian from 1986 until March 1999. From
January 1997, when Caliri was appointed as maintenance
director, until March 1999, Caliri supervised Wayne, who
also reported to the principal of the school to which he
was assigned. As part of his supervision of Wayne, Caliri
assigned work to Wayne and authorized his overtime. For example,
between March and December 1997, Caliri approved 469 hours of
overtime for Wayne, which was one of the highest overtime totals
among maintenance workers and custodians for that period. According
to Caliri, the reason Wayne received so much overtime in 1997 was
because Wayne was one of two custodians assigned to the recently
fire-damaged Donovan School and had the right of first refusal
under the applicable collective bargaining agreement for overtime
assignments at the school. Caliri's assignments of overtime hours
to Wayne were subject to the superintendent's review and approval.

29. Caliri's appointing authority, the superintendent, was
aware when he appointed Caliri to serve as maintenance director
that Caliri and Wayne were brothers and that Caliri would be
responsible for supervising Wayne. Caliri, however, did not at
anytime file a written disclosure to the superintendent that he was
supervising Wayne, approving Wayne's overtime and taking other
official actions concerning matters in which Wayne had in
financial interests. The superintendent, in turn, at no time
made a written determination that Wayne's financial interest was
not so substantial as to be deemed likely to affect the integrity
of the services which the town of Randolph may expect from Caliri
as maintenance director.

30. Section 19 of G.L. c. 268A prohibits a municipal employee
from participating[8] as such in a particular matter[9] in which to
his knowledge a member of his immediate family[10] has a financial
interest[11] except as permitted by paragraph (b) of that
section.[12]

31. Wayne, as Caliri's brother, is a member of Caliri's
immediate family.

32. In supervising Wayne as a School Department custodian,
Caliri, as maintenance director, participated in many particular
matters in which he knew at Wayne had a financial interest,
including, for example, Caliri's numerous decisions to authorize
Wayne's overtime work. In so doing, Caliri violated s. 19.

33. The fact that Caliri's appointing authority,
the superintendent, was aware that Caliri was supervising his
brother is not a defense to Caliri's violation of s. 19. the formal
disclosure and written determination requirements of the s.
19(b)(1) exemption are not mere technicalities. They protect the
public interest from potentially serious harm. As the Commission
has stated, "The steps of the disclosure and exemption procedure
... are designed prevent an appointing authority from making an
uninformed, ill-advised or badly motivated decision." In re Hanlon,
1986 SEC 253, 255. Accordingly, the Commission requires that anyone
seeking exemption under 19(b)(1) from the prohibitions of s. 19
strictly comply with provisions of s. 19(b)(1). See In re Ling,
1990 SEC 456, 58-459. Furthermore, "the primary responsibility for
compliance with these provisions rests on the public employee
seeking the exemption." Hanlon, supra. The Superintendent's
knowledge is, however, a mitigating circumstance which the
Commission has considered in determining the amount of the fine
imposed for Caliri's violation of s. 19.Id.[13]

34. According to Caliri, he was not aware at the
me of his above-described conduct that his actions violated the
conflict of interest law, as he had, prior to becoming aware of the
Commission's investigation of this matter, never read G.L. c 268A
nor received any training concerning its requirements. Ignorance of
the law is, however, not a defense to a violation of the conflict
of interest law. In re Brewer, 1987 SEC 300, 3001 n. 1; see so
Scola v. Scola, 318 Mass. 1, 7 (1945).

In view of the foregoing violations of G.L. c. 268A
by Caliri, the Commission has determined that the public interest
would be served by the disposition of the matter without further
enforcement proceedings, on the basis of e following terms and
conditions agreed upon by Caliri:

(1) that Caliri pay to the Commission the sum of $4,000 as a
civil penalty for violating G.L. c. 268A, s.s. 19, 23(b)(2)
and 23(b)(3);

(2) that Caliri pay to the Commission the sum of $1,500 as a
civil forfeiture of the benefit he received by using his
position to secure the unwarranted privilege of free services
from his subordinate Pignatelli in violation of G.L. c. 268A,
and

(3) that Caliri waive all rights to contest the findings of
fact, conclusions of law and terms and conditions contained in
this Agreement in this or

Page 998

any other related administrative or judicial proceeding to which the Commission is or may be a party.



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

[1] According to Caliri and Kilmurray, before Caliri's new
house was ready for painting, Kilmurray told Caliri that he and
Pignatelli could do the painting without charge. Thus, according to
Caliri, when the house was ready for painting and he asked his
subordinates for help, he was accepting that prior offer. The
Commission, however, finds the evidence on this point to be
contradictory and does not find that the offer was made prior to
Caliri's request for help as Caliri and Kilmurray state.

[2] Kilmurray stated under oath that he agreed to help Caliri
because of their friendly relationship and because of the
opportunity his helping Caliri provided for his children to spend
several weekends at the beach. Kilmurray further stated under oath
that he felt he was adequately compensated for the work he
performed at Caliri's new house by his children's enjoyment of the
beach and by the Caliris' hospitality.

[3] According to Caliri, he offered maintenance workers and
custodians an unusually large amount of overtime in 1997 because
the School Department had eight maintenance and custodial vacancies
at the time, and because the Donovan School suffered $700,000 in
damage in an April 1997 fire and needed extensive clean up and
repair work. According to Caliri, all overtime was offered and
assigned according to the applicable collective bargaining
agreement, and no grievances were filed concerning Caliri's
assignment of overtime in the is period.

[4] The Commission construes substantial value to mean or
include any item or service with a value of $50 or more. In re
LIAM, 1997 SEC 879,890.

[5] By contrast, Broderick's free services to Caliri were not
unwarranted privileges because they were independently motivated by
Broderick and Caliri's private relationship including, in
particular, the housing assistance that Caliri had provided to
Broderick, for which Broderick's services were reciprocation. Also
by contrast, Callahan's free services were not unwarranted because
they were sufficiently minor to be attributable to his friendly off
the job relationship with Caliri. Finally, while it is a close
question, Kilmurray's free services were not unwarranted because
they appear to have been attributable to his friendly off the job
relationship with Caliri and to the value to Kilmurray of having
his children spend several summer weekends at the beach while he
helped Caliri.

[6] Public employees are prohibited by the conflict of
interest law from taking private advantage of the inherently
exploitable relationships they have with those persons whom they
supervise or regulate in their official positions. See In re
Corson, 1998 SEC 912; see also In re Shay, 1992 SEC 591.

[7] The Commission, nevertheless, does not find that Caliri
was in fact unduly influenced in the performance of his official
duties as maintenance director by his private dealings with
Broderick, Kilmurray, Callahan or Pignatelli, or with Steele and
Williams Coal & Oil, nor is the Commission aware of any evidence
that the men or the company ever received any preferential
treatment from Caliri in the performance of his official duties.

[8] "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. GL. c. 268A, s.10).

[9] "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. GL. c. 268A, s.1(k).

[10] "Immediate family" means the employee and his spouse, and
their parents, children, brothers and sisters. GL. 268A, s. 1(e).

[11] "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-COI-84-98. The interest can be
affected in either a positive or negative way. See EC-COI-84-96.

[12] Section 19(b)(1) provides that conduct which would
otherwise be a violation of 19 "shall not be a violation ... if the
municipal employee first advises the official responsible for
appointment to his position of the nature and circumstances of the
particular matter and makes full disclosure of such financial
interest, and receives in advance a written determination made by
that official that the interest is not so substantial as to be
deemed likely to affect the integrity of the services which the
municipality may expect from the employee."

[13] Further, the Commission is not aware of any evidence that
Wayne received preferential treatment from Caliri in the
performance of his official duties.