Docket No. 354

In the Matter of Frank Magliano

March 3, 1988

Disposition Agreement


This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Frank Magliano (Mr.
Magliano) 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 a possible violation of
the confiict of interest law, G.L. c. 268A, by Mr. Magliano, the
Building Inspector for the City of Brockton. The Commission has
concluded that inquiry and, on October 26, 1987, found reasonable
cause to believe that Mr. Magliano violated G.L. c. 268A, s.19.

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

1. Mr. Magliano is the Building Inspector in Brockton and, as
such, has overall supenision of the Public Property Department. Mr.
Magliano is therefore a municipal employee as defined in s.1(g) of
G.L. c. 268A.

2. Mr. Magliano has a son, Daniel J. Magliano (Daniel). Daniel
is a member of Mr. Magliano's immediate family within the meaning
of G.L. c. 268A, s.1(e).

3. On June 2, 1986, Mr. Magliano posted a promotional bulletin
in the Public Property Department shop giving notice of an opening
for a permanent storekeeper at $9.16 per hour, starting July 1,
1986. The bulletin was posted for five working days as required by
G.L. c. 31, s.29.

4. The creation of the position of storekeeper had been approved
by the Brockton City Council in the spring of 1986, with an annual
salary of $19,125.00.

5. On June 11, 1986, Mr. Magliano filed a municipal Civil
Service Requisition and a Position Description with the Division
of Personnel Administration (DPA). The requisition stated that the
position of storekeeper would be a newly-created, full-time,
permanent position. The requisition also stated that the
appointment would be made by certification from an existing
eligible list established as a result of an open competitive
examination or, if there was no suitable eligible list, by holding
an open competitive examination. Mr. Magliano signed the
requisition in certification that he was the officer authorized by
law to make the appointment. Mr. Magliano also signed the position
description as the appointing authority. There was, in fact, no
existing eligible list in June, 1986 from which applicants could
be appointed to the storekeeper position.

6. By letter dated June 17, 1986, Mr. Magliano nctified the DPA
that he had made a provisional appointment of Daniel as
storekeeper, effective June 30, 1986. In the letter, Mr. Magliano
certified that he had been unable to find a veteran qualified for
the position who was available and that he had complied with all
the provisions of G.L. c. 31, s.25[1]. Daniel was the sole
applicant for the position. At no time did Daniel take an open
competitive examination for the storekeeper position; between June,
1986 and April, 1987, no such examination was held to create an
eligible list of applicants for the position.

7. On August 6, 1986, Mr. Magliano sent a letter to DPA
requesting that the requisition, dated June 11, 1986, be changed
to reflect a salary of $9.25 per hour (instead of $9.16 per hour).
Mr. Magliano also requested that the notification of provisional
appointment be changed to reflect an effective date of July 14,
1986.

8. On January 16, 1987 The Brockton Enterprise printed an
article alleging that Mr. Magliano had created the new position of
storekeeper and appointed his son Daniel to the position. The
article raised the issue of whether Mr. Magliano's hiring of Daniel
violated the state conflict of interest law.

9. On April 17, 1987, Daniel submitted his resignation from his
position, citing a possible conflict of interest as his reason for
taking the action. On the same date, Mr. Magliano sent a letter to
City Solicitor Paul Adams informing him of Daniel's resignation
"[d]ue to a possible conflict of interest.

10. Mr. Magliano has maintained throughout these proceedings
that when he took the steps involved in

Page 334

hiring Daniel, he was unaware that his actions would create a
conflict of interest. The Commission knows of no evidence
indicating that Mr. Magliano knowingly or intentionally violated
the conflict of interest law. Mr. Magliano understands that
ignorance of the law is no defense to a violation of G.L. c.
268A.[2]

11. Section 19 of G.L. c. 268A provides in relevant part that,
except as permitted by s.19,[3] 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.

12. The appointment of Daniel to the storekeeper position was
a "particular matter." Mr. Magliano "participated" in that matter
by making the appointment and by taking the other actions
concerning the apporntment which are set forth above. Because the
position was a paid position, Daniel had, at the time of the
appointment, a "financial interest" in the appointment. Mr.
Magliano was aware at the time he appointed his son that his son
would receive compensation for his services as a storekeeper. As
Mr. Magliano's son, Daniel was a member of Mr. Magliano's
immediate family within the meaning of G.L. c. 268A, s.19. G.L. c. 268A,
s.1(e).

13. By appointing his son to the storekeeper position, as
described above, Mr. Magliano participated as the Brockton Building
Inspector in a particular matter in which his son had a financial
interest, thereby violating G. L.c. 268A, s.19.

In view ofthe 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 and conditions
agreed to by Mr. Magliano:

1. that he pay to the Commission the sum of one thousand dollars
($1,000.00) as a civil penalty for violating G.L. c. 268A, s.19 by
appointing his son to the storekeeper position; and

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

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[1] General Laws c. 31 s.25 governs the establishment of a
certified eligible list by DPA and certain aspects of the
appointment of persons from that list.

[2] In the Matter of C. Joseph Doyle, 1980 SEC 11,13. see also,
Scola v. Scola, 318 Mass. 1,7(1945).

[3] None of the s.19 exceptions applies to this case.