Ethics Commission Finds that Pittsfield Mayor James Ruberto and New England College Baseball Team Owner Daniel Duquette Violated the Conflict of Interest Law
No Civil Penalties Imposed
The State Ethics Commission ("Commission"), in a Decision and Order ("Decision") issued today, concluded that Pittsfield Mayor James M. Ruberto ("Ruberto") and Daniel Duquette ("Duquette") each violated G.L. c. 268A, the conflict of interest law, in connection with Duquette's sale of 2004 World Series tickets to Ruberto. The Commission declined to impose civil penalties for the violations.
According to the Decision, beginning in early 2004, Duquette, the owner of the Berkshire Dukes, a New England College Baseball League ("NECBL") team based in Hinsdale, expressed to Ruberto his interest in having the Dukes play at Wahconah Park (the "Park") in the City of Pittsfield (the "City"). Ruberto, however, told Duquette that he was not interested in an NECBL team because he wanted a professional minor league baseball team to play at the Park. At that time, Ruberto was already in talks with the Bouton Group about its plans to bring a professional team from the Canadian American League to play at the Park beginning in the Spring of 2005. Duquette contacted Ruberto in the summer of 2004 and was rebuffed again. In early October 2004, Duquette again contacted Ruberto after reading in the local newspaper that the City's negotiations with the Bouton Group had failed. During this conversation, Ruberto told Duquette that he was not interested in having a NECBL team play at the Park. He also told Duquette that he was an avid Red Sox fan and that his lifelong dream was to see the Red Sox play in the World Series in Fenway Park. On October 14, 2004, Duquette sent an email to Ruberto thanking him for his interest in the Dukes, and on October 22, 2004, Duquette offered Ruberto the opportunity to buy two tickets to Game 2 of the World Series at the face value amount of $380. Ruberto accepted the offer and paid Duquette $380 by check. Tickets for comparable seats were selling at the time for $2,000 to $3,000. In early November, Ruberto started to look into the possibility of an NECBL team playing at the Park. In March 2005, the City and Duquette reached a deal, the terms of which were favorable to the City, in which the Dukes would play at the Park.
Section 3(a) of the conflict of interest law prohibits anyone from directly or indirectly giving, offering or promising anything of substantial value to any municipal employee for or because of any official act performed or to be performed by such an employee. In its Decision, the Commission found that Duquette's offer to sell the tickets to Ruberto at face value was an offer of something of substantial value because "a reasonable person wishing to attend Game 2 of the 2004 World Series would pay $50 or more over face value … to purchase the [t]ickets." Although Duquette claimed that he offered the tickets with the intent only to create generalized goodwill with Ruberto, the Commission found that Duquette offered to sell the tickets "with the intent to influence Ruberto's official actions regarding the [licensing agreement and concession stand agreement] and the Dukes move to Pittsfield." Among the factors considered by the Commission were: Duquette's knowledge of Ruberto's lifelong dream to see the Red Sox play at Fenway in the World Series; Duquette's knowledge that Ruberto's support of the license and concession agreements was essential in order for the Dukes to move to the City; the lack of any prior social relationship between Duquette and Ruberto, and no evidence of any reciprocity. Accordingly, the Commission found that Duquette violated section 3(a).
Section 3(b) prohibits a municipal employee from directly or indirectly receiving anything of substantial value for or because of any official act performed or to be performed by such employee. Ruberto violated section 3(b) because "Ruberto intended to receive the [t]ickets … to influence Ruberto's official action regarding the [license and concession agreements, and Ruberto intended to receive the [t]ickets for or because of official acts he performed or would perform in the future related to the Dukes move to Pittsfield." Ruberto did not consider Duquette's requests to move the Dukes to the City until shortly after he received the tickets from Duquette, and after telling Duquette of his lifelong dream to see the Red Sox play in the World Series at Fenway Park.
The Decision also states that Ruberto violated sections 23(b)(2) and 23(b)(3) of the conflict law. Section 23(b)(2) prohibits a municipal employee from using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals. Ruberto violated section 23(b)(2) by using his official position as Mayor to obtain an unwarranted privilege, i.e., the opportunity to purchase the tickets at face value from Duquette, someone with whom he had no prior personal social relationship, while Duquette was seeking to move the Dukes to the Park. Section 23(b)(3) prohibits a municipal employee from knowingly, or with reason to know, acting in a manner that would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person could improperly influence of unduly enjoy his favor in the performance of his official duties, or that he was likely to act or fail to act as a result of kinship, rank, position or undue influence of any part or person. It further provides that it shall be unreasonable to so conclude if the employee has disclosed in a manner that is public in nature, the facts which would otherwise lead to such a conclusion. Ruberto violated section 23(b)(3) by acting as Mayor in matters affecting Duquette and the Dukes shortly after he purchased the tickets from Duquette. Ruberto did not make any public disclosure of his purchase of the tickets prior to participating in these matters.
According to the Decision, the Commission declined to impose civil penalties on Duquette or Ruberto for their violations of the conflict law for the following reasons:
- Although the Commission found that both Duquette and Ruberto violated section 3, it acknowledged that it was a close question whether Duquette offered the tickets to Ruberto for or because of a specific official act or actions, or merely to obtain Ruberto's goodwill. At the time he offered the tickets, Duquette did not believe that Ruberto was interested in having the Dukes play at Wahconah Park because Ruberto instead wanted a professional minor league team to play at the park. Also, there is no evidence that Ruberto was actually influenced by receiving the tickets because the final deal worked out between the city and Duquette was favorable to the City, and the negotiations were at times contentious;
- The Commission was persuaded that neither Ruberto, who was a newly elected Mayor in 2004, nor Duquette, who was not a public employee, was aware in October 2004 of Commission Advisory 04-01, which warned that selling tickets at face value could raise conflict of interest issues if a public official, "'accepts the special access to the tickets [to a major sporting event] offered as a result of his official position'"; and
- Both Duquette and Ruberto knew that Duquette could not give the tickets to Ruberto for free, and they both believed that they were complying with the conflict law and scalping laws by selling the tickets at face value.
"As stated in this Decision, to comply with the conflict law in these circumstances, Duquette should not have offered and sold the tickets to Ruberto, and Ruberto should not have purchased them from Duquette," said Executive Director Karen L. Nober.