Decision  In the Matter of Bruce Duarte

Date:	10/24/2014
Organization:	State Ethics Commission
Docket Number:	13-0009

• Appearance for Petitioner: Candies Pruitt-Doncaster, Esq.
• Appearance for Respondent: Christopher R. Whittingham, Esq.
• Commissioners: Barbara Dortch-Okara, Paula Finley Mangum, William J. Trach, and Regina L. Quinlan
• Presiding Officer: Commissioner Paula Finley Mangum

I. Introduction

This matter concerns Respondent  Bruce Duarte’s alleged participation as a senior property manager for the New Bedford Housing Authority (“NBHA”)  in the decision to stop his brother’s eviction from NBHA housing in alleged violation of G. L. c. 268A,      § 19.  Specifically, the Commission’s Enforcement Division (“Petitioner”) alleges that Duarte as a NBHA senior property manager directed NBHA staff to stop the September 13, 2010 eviction of his brother from NBHA housing due to his failure to pay rent.  Duarte denies that he participated in the decision to stop his brother’s eviction, and denies that he violated G. L. c. 268A, § 19.[1]

II. Procedural Background

This matter commenced on October 22, 2013, with Petitioner’s issuance of an Order to Show Cause alleging that Duarte violated G. L. c. 268A, § 19  in September 2010 while serving as a NBHA senior property manager.  Duarte answered on    November 11, 2013, denying most of the allegations.  On January 15, 2014, Duarte made a motion to remove Petitioner’s counsel, which was denied.  On February 6, 2014, Duarte moved to compel Petitioner to more fully respond to interrogatories and to provide a non-redacted copy of the complaint.  Respondent’s motion was denied except as to one interrogatory.  An adjudicatory hearing was held on August 7^th and 8^th, 2014.  During the hearing, Duarte moved to identify the complainant and to have the complainant treated as a party opponent, again moved to remove Petitioner’s counsel, and also moved to bar the Presiding Officer from participating in the Commission’s deliberations.  All of the motions were denied.  At the hearing, fifteen exhibits were admitted into evidence, seven witnesses, including Duarte, testified and the Parties made their closing arguments before the Presiding Officer.  The parties submitted their final briefs in September 2014.

In rendering this Decision and Order, each undersigned member of the Commission has considered the testimony of the witnesses at the adjudicatory hearing, the evidence in the public record and the arguments of the parties. 

III. Findings of Fact

1. In September 2010, Duarte was employed as a NBHA senior property manager.  As such, Duarte was a New Bedford municipal employee.  As of September 2010, Duarte had worked for the NBHA for about twenty years. 
    
2. The NBHA provides housing for low-income, elderly and disabled people in New Bedford.
    
3. As a senior property manager in September 2010, Duarte managed about 1000 units of NBHA housing in several housing developments.  Duarte’s duties as a senior property manager included supervision of NBHA property managers, data specialists and management aides, among other staff.  In September 2010, Duarte’s immediate supervisor was NBHA Executive Director Stephen Beauregard (“Beauregard”).
    
4. As a senior property manager, Duarte regularly appeared in the housing court as the NBHA’s representative in tenant eviction proceedings.  Duarte regularly was in the housing court on Fridays with the NBHA’s attorney.  During the relevant period, the NBHA’s attorney was Natalie Cabral (“Cabral”).  Duarte and Cabral appeared in the housing court on about 1,000 cases over a 5 year period.
    
5. As a NBHA senior property manager, Duarte had the authority and discretion to stop tenant evictions and to direct his NBHA subordinates to stop tenant evictions.  Duarte was not required to seek the permission of or consult with Executive Director Beauregard or anyone else at the NBHA concerning stopping tenant evictions.  As the NBHA attorney, Cabral did not have the authority to stop tenant evictions.
    
6. As a NBHA senior property manager, Duarte had on his own authority occasionally stopped tenant evictions prior to September 2010.  Duarte required the tenants to pay part or all of what they owed at the time the evictions were stopped.
    
7. In September 2010, Shelley Santos (“Santos”) was employed as a NBHA management aide.  As such, Santos was Duarte’s subordinate.  Santos was directly supervised by Janet Marrero (“Marrero”).  While Duarte was not her direct supervisor, Santos often consulted with Duarte and regularly reported to him what was occurring at the NBHA or any problems with tenants.
    
8. As a NBHA management aide, Santos’s duties included collecting rents, serving 14 day notices to quit, performing home inspections and attending private conferences with tenants.  Santos worked in an NBHA office along with Joan Estrella (“Estrella”) and Andrea Robidoux (“Robidoux”).  As a NBHA management aide, Santos did not have the authority to stop tenant evictions.
    
9. At all times relevant, Duarte had a brother John Duarte (“John”).  In 2009 and 2010, John was a NBHA tenant.  John came to be a NBHA resident because he was elderly and disabled.  By all accounts, John was not a good tenant, had behavior issues and did not pay his rent on time. 
    
10. Santos did not get along with John because she felt he was verbally abusive towards her and other NBHA staff and residents.
     
11. When John became an NBHA tenant, Duarte told Santos and his other staff that he did not want to be involved with his brother, and that, even though John was his brother, he was to be treated like any other resident. 
     
12. Duarte nevertheless became involved in John’s NBHA tenancy on several occasions by: (a) prohibiting John from using the common kitchen; (b) chastising John for being rude to a NBHA commissioner; (c) speaking with other residents about their allegations that John had set off the fire alarm in his unit and, allegedly, spiked the holiday punch; and (d) generally having discussions with John when problems would arise.  
     
13. The NBHA issued notices to quit for nonpayment of rent to John on January 6, 2010, April 26, 2010, and June 15, 2010.
     
14. On July 19, 2010, the NBHA filed a summary process eviction action in the Bristol Housing Court Department, Southeast Division, New Bedford (the “Housing Court”) against John for nonpayment of rent.
     
15. On August 23, 2010, the NBHA obtained a default judgment from the Housing Court in the eviction action against John.
     
16. On September 2, 2010, the NBHA obtained an Execution on Judgment against John authorizing the Sheriff’s Department to deliver the premises occupied by John to the NBHA.  As of that date, John owed the NBHA approximately $406.
     
17. Duarte knew of the problems the NBHA was having with his brother concerning John’s failure to pay his rent.  Duarte also knew of the Housing Court proceedings concerning John for nonpayment of rent.  As the NBHA manager who attended Housing Court hearings on behalf of the NBHA, Duarte received in advance the court docket showing the NBHA cases that were going to go before the court.
     
18. On September 9, 2010, Lieutenant Deputy Sheriff Michael P. Young (“Lt. Young”) served a 48-Hour Notice of eviction on John by leaving it at John’s NBHA apartment.   The Notice required John to remove all of his belongings from his NBHA apartment by 9:30 a.m. September 13, 2010.  The Notice indicated that Southcoast Moving and Storage (“Southcoast”) was the company used by the NBHA to remove and store items left by tenants.
     
19. On September 13, 2010, at approximately 9:30 a.m., Santos went to John’s NBHA apartment with Lt. Young to allow him access to the apartment.  John was not in his apartment.   Lt. Young and Southcoast co-owner Walter D. Moniz (“Moniz”) then entered John’s apartment to execute the eviction and remove John’s property. [2]
     
20. Lt. Young directed the movers to begin packing John’s belongings.  Moniz and his employees packed John’s belongings and began transferring them to the moving truck.  John was not present during this process.
     
21. While the move of John’s belongings was in progress, Santos spoke with Duarte by telephone.  Santos told Duarte that John’s belonging were being moved from his apartment, stating words to the effect of “your brother is being evicted.  They are moving his things out.  They have things on the truck.”  Duarte decided to stop the eviction of his brother.  Duarte then told Santos to stop the removal of John’s belongings and to have them returned to his apartment, stating words to the effect of “Tell them to stop!  Have them take the boxes off the truck and bring them back to the apartment!”[3]
     
22. In deciding to stop John’s eviction, Duarte acted as a NBHA senior property manager in his own discretion and on his own official authority.  Duarte did not seek or receive permission from Beauregard or other superior NBHA management to stop the eviction. 
     
23. Duarte was not in Housing Court on September 13, 2010, and was not in court with NBHA attorney Cabral at the time of his telephone conversation with Santos concerning John’s eviction.  Duarte did not talk with Cabral before telling Santos to stop the move, nor did Duarte relay to Santos Cabral’s advice or decision to stop the eviction.[4]  Cabral did not have the authority to stop John’s eviction and did not advise Duarte to do so.
     
24. As instructed by her superior Duarte, Santos told Lt. Young to stop the eviction.  Lt. Young then instructed Moniz and Southcoast to return everything from the truck to John’s apartment and John’s property was returned to his apartment by Moniz and his employees. 
     
25. John did not have access to free housing in September 2010.  Had Duarte not directed Santos to stop the eviction on September 13, 2010, John would have been evicted from his NBHA apartment and he would have had to find and pay for replacement housing or have been homeless.
     
26. Santos and NBHA residents were upset that John was not evicted on September 13, 2010.
     
27. Shortly after he directed Santos to stop John’s eviction, Duarte met with her and her co-workers Robidoux and Estrella at the NBHA offices.  Duarte told them that Executive Director Beauregard was aware of and approved of his actions concerning his brother’s eviction.  In fact, Duarte had not received Beauregard’s approval and did not discuss the matter with him until sometime later.  Duarte testified, “It was a common practice in the housing authority to stop evictions.  They happened.  People – managers did it.  So it wasn’t anything that I had to go run to Steve Beauregard if that’s what happened,” and “I did not have a discussion with [Beauregard] during or after my brother’s eviction.  I didn’t have a discussion with [Beauregard] until several weeks later about that,” and “managers did not need [Beauregard’s] permission to stop evictions.”
     
28. Between September 13 and September 17, 2010, John did not pay the NBHA any of the money he owed.
     
29. On September 17, 2010, Santos and her supervisor Marrero appeared in Housing Court on John’s case.  Santos and Marrero, on behalf of the NBHA, entered into a mediated summary process agreement for judgment with John under which John was to pay the rent owed and moving fees or be evicted.  The agreement - under which $242 of the $619.40 total John owed would be paid by Coastline Elderly Services (“Coastline”), he would be allowed to stay in his NBHA home and he would be given time to pay off his debt in $94.35 monthly installments - was entered as an order of the court.  The arrangement with Coastline was worked out on or about September 17, 2010.
     
30. Although he remained in NBHA housing through November and at least part of December 2010, John did not comply with the agreement.  The Housing Court issued a Final Execution against John on December 27, 2010, and John eventually moved out owing the NBHA money.

IV. Decision

The Petitioner must prove its case and each element of the alleged violation by a preponderance of the evidence. 930 CMR 1.01(10)(o)2. The weight to be attached to any evidence in the record, including evidence concerning the credibility of witnesses, rests within the sound discretion of the Commission.  930 CMR 1.01(10)(n)3.

In order to prove a § 19 violation by Duarte, Petitioner must prove that Duarte participated as a municipal employee in a particular matter in which a member of his immediate family had, to his knowledge, a financial interest.  Petitioner asserts that the evidence shows that Duarte violated § 19 by, as a NBHA senior property manager, directing the NBHA staff to stop the eviction of his brother John from NBHA housing on or about September 13, 2010.  Duarte asserts that the evidence shows that he did not make the decision to stop John’s eviction, but instead merely passed on to NBHA management aide Santos NBHA attorney Cabral’s decision to stop the eviction, and argues that, in any event, John’s eviction was not stopped but only postponed and that John did not benefit financially from that postponement.

Based on the evidence in the record, we reach the following conclusions.

Duarte was a Municipal Employee

There is no dispute that Duarte was, at all relevant times, a NBHA senior property manager and an employee of the City of New Bedford.  As such, Duarte was, at all relevant times, a municipal employee as defined in G. L. c. 268A, § 1(g). 

John was Duarte’s Immediate Family Member

There is no dispute that John is Duarte’s brother.  As such, John is a member of Duarte’s immediate family as defined in G. L. c. 268A, § 1(e).

The Decision to Stop John’s Eviction Was a Particular Matter

For conflict of interest law purposes, a “particular matter” is, inter alia, any “decision” or “determination.” G. L. c. 268A, § 1(k).  Accordingly, the decision to stop John’s eviction was a particular matter within the meaning of the conflict of interest law.

John had, to Duarte’s Knowledge, a Financial Interest in the Stopping of His Eviction

“Financial interest” is not defined in the conflict of interest law.  The Commission has determined that “financial interest” is not limited to direct financial interests, but extends to reasonably foreseeable financial interests, large or small, positive or negative, so long as they are not remote, speculative or insufficiently identifiable.  In re Brennan, 2009 SEC 2237, 2244.

The stopping of his eviction allowed John to remain in NBHA housing despite his owing over $400 in back rent.  Had he been evicted, John would have had to seek and pay for new housing and also pay for the cost of moving and possibly storing his possessions (or, more likely, incur additional debt to pay for those costs).  John’s financial interest in the decision to stop his eviction was not remote, speculative or insufficiently identifiable.  These inevitable consequences of eviction gave John a financial interest in the decision to evict him of which Duarte, given his many years of experience with NBHA tenant evictions, could not have been unaware.  In any case, based on the evidence, it is more likely than not that Duarte knew of his brother’s financial interest in not being evicted.  In addition, based on his experience, it is more likely than not that Duarte knew that John would be required to pay some portion of what he owed the NBHA in connection with his being allowed to stay.  Thus, we find that John had to Duarte’s knowledge a financial interest in the decision to stop his eviction.

Duarte’s argument that his brother did not in fact financially benefit from the decision to stop the eviction because he was later evicted is both beside the point and without merit.  The stopping of the September 13^th eviction afforded John the opportunity to enter into an agreement with the NBHA on September 17, 2014 under which $242 of the $619.40 total he owed would be paid by Coastline, he would be allowed to stay in his NBHA home and he would be given time to pay off his debt in $94.35 monthly installments.[5] This agreement with the NBHA put John in an unquestionably better position financially and physically than he would have been had he been evicted and made homeless owing the $619.40 total in unpaid rent and fees.  The fact that John was ultimately evicted several months later owing back rent and fees does not alter this fact.

Duarte Participated as a Municipal Employee in the Decision to Stop John’s Eviction

In order to have met its burden of proof, Petitioner must have proved by a preponderance of the evidence that Duarte participated “personally and substantially” as a municipal employee, “through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise,” in the particular matter of the decision to stop his brother’s eviction. G. L. c. 268A, § 1(j).

Petitioner asserts that Duarte personally and substantially participated in the decision to stop his brother’s eviction as part of his duties as a NBHA senior property manager.  According to Petitioner, Duarte, as senior property manager, personally made the decision to stop the eviction and directed NBHA management aide Santos to do so.  Petitioner asserts that this participation was substantial in that, without it, the eviction would have gone forward as scheduled.  Duarte asserts that his involvement in the stopping of his brother’s eviction “does not meet the standard set out in §19’s definition of participation,” in that he merely “relayed the instructions” of NBHA attorney Cabral to his subordinate Santos and did not participate in making the decision to stop the eviction.  Duarte, as “any manager would have done under the circumstances,” followed the NBHA’s attorney’s “directions” in a “correct and common procedure.” Duarte further in effect argues that it is not credible that he intervened to stop the eviction as alleged by Petitioner because, if he had wanted to stop his brother’s eviction, he would not have waited until the last moment to do so.

The preponderance of the evidence supports Petitioner.  First, to the degree that Duarte’s version of his telephone conversation turns on his being in court with Cabral at the time, the weight of the credible evidence contradicts Duarte’s version.  Although both Santos and Duarte placed their conversation during John’s eviction on a Friday[6] (which Duarte testified was September 10, 2010) the most reliable evidence of the date of John’s eviction and thus the date of the telephone conversation, the testimony and business records of the mover Moniz and the deputy sheriff Lt. Young, establishes Monday, September 13, 2010 as the date of the eviction.  Moniz clearly recalled the date because it was the day before the Tuesday, September 14, 2010 election in which he was a candidate for office.

Second, and more importantly, Santos’s testimony that Duarte told her to “stop the move” and to have the movers “put the boxes back” in John’s apartment is credible.[7]  By contrast, Duarte’s testimony that he merely repeated to Santos what he claims Cabral said to him, “If he has the money, let him stay,” is not credible. 

Duarte’s testimony concerning his reaction to Santos calling him and Cabral’s perception of that reaction and his interaction with Santos and Cabral regarding John’s ongoing eviction is not credible.  First, it was not believable that Duarte would have been “flabbergasted” by Santos calling him about John’s eviction at all let alone to the extent his facial reaction would have drawn Cabral’s attention and inquiry about what was going on or what was wrong.  Second, given that, according to the witnesses, John was not at the eviction,  it is improbable that Santos would have had a basis to tell Duarte that John, whom Santos testified she had not seen that morning, “ha[d] the money.”   Third, Duarte’s testimony that he merely repeated to Cabral what he says Santos told him, “My brother is being evicted and he has the money,” and asked “What should she do?,” and then merely repeated to Santos what Cabral told him in response, “If he has the money, let him stay,” was not credible as explained above in footnote 4.  In addition, given his background and nearly 20 years of NBHA management experience, as well as his observed and self-described firm personality, it is not believable that Duarte acted merely as a passive conduit between Santos and Cabral.  Fourth, Duarte’s testimony is not credible given that he, not Cabral or Santos, had the authority to stop a tenant eviction.[8] Finally, Duarte’s testimony is not credible because as far as the evidence shows only he, not Santos or Cabral, had a motive to stop John’s eviction, i.e., to avoid having his brother forced to move from NBHA housing or even made homeless.        

Accordingly, the preponderance of the evidence establishes that during the September 13, 2010 telephone conversation with his subordinate Santos that occurred while John’s eviction was in progress, Duarte said “tell them to stop” or other words to the effect of “stop the eviction” to Santos and that John’s eviction was stopped.  Thus, the preponderance of the evidence establishes that Duarte personally and substantially participated in his official capacity as a NBHA senior property manager in the decision to stop his brother’s eviction (a decision in which his brother had to his knowledge a financial interest) by, in the exercise of his official authority, personally making the decision and directing his subordinate to stop the eviction.  The fact that Duarte waited until the last minute to stop his brother’s eviction, while true and unexplained, does not change the fact that he stopped his brother’s eviction.

Duarte’s Claims of Error

In his Brief, Duarte asserts that the Presiding Officer erred in her rulings on three issues raised during the hearing:  first, by refusing to allow Duarte to inquire into the identity of the complainant in this matter (which Duarte asserts violates his due process right to confront his accuser); second, by excluding Duarte’s evidence showing that the NBHA had stopped other evictions; and, third, refusing to allow Duarte to enter into evidence records of stopped evictions.  In addition, Duarte asserts that it is error and “implicates” his due process rights to a fair hearing for the Presiding Officer to participate in the Commission’s deliberations because a “very strong possibility exists that [Commissioner Mangum’s] participation is going to have an undue influence on the rest of the Commission.”  Duarte does not support his assertions with any legal argument or citations to the record. 

Duarte’s assertions of error are without merit.  First, the Commission is required to keep the identity of a complainant confidential. 930 CMR 3.01(5).  Thus, sustaining Petitioner’s objections to Duarte’s questioning of Santos concerning the complainant’s identity was necessary and appropriate.  Duarte’s rights are protected because the Commission only considers the evidence, including witness testimony, in the record in deciding this matter and Duarte had the opportunity in the adjudicatory hearing to examine all evidence and to question each witness.  Second, the evidence relating to other NBHA evictions was not relevant to these proceedings given that there is no allegation that Duarte used his position to unduly benefit his brother or to treat him better than any other tenant.  In any case, Duarte was allowed to testify about other evictions stopped at the last minute.  Finally, the Presiding Officer’s participation in deliberations is essential to the Commission’s making credibility assessments concerning the witnesses.  Without the Presiding Officer’s input the Commission would lack critical guidance in determining which witness to believe with regard to conflicting testimony.  See Craven v. State Ethics Commission, 390 Mass. 191, 199 (1983) (rejecting argument that participation by hearing officer in Commission’s final decision violated due process).  Accordingly, we find that there was no error by the Presiding Officer.

V. Conclusions and Findings

For the above stated reasons, we conclude and find that Petitioner has proved by a preponderance of the evidence that Duarte violated G. L. c. 268A, § 19, in September 2010 by participating as NBHA senior property manager in the decision to stop the eviction of his brother from NBHA housing. 

VI. Order

Accordingly, having found that Duarte violated G. L. c. 268A, § 19, as specified above, the Commission, pursuant to the authority granted it by G. L. c. 268B, § 4(j), hereby ORDERS Duarte to pay a civil penalty of $1,000 for that violation

[1]   Section 19, in relevant part, prohibits a municipal employee from participating as such an employee “in a particular matter in which to his knowledge…his immediate family member…has a financial interest.”

[2]  As to the date of John’s scheduled eviction, we find that the testimony by Duarte and Santos that it occurred on Friday September 10, 2010, is outweighed by the testimony of Lt. Young and Moniz, supported by their business records, that it occurred on Monday, September 13, 2010.

[3]  We found Santos’s testimony describing her telephone conversation with Duarte to be more credible than Duarte’s testimony.  This was partly based on the witnesses’ demeanor and partly on the fact that Santos’s version of the conversation is more probable than Duarte’s.

[4]  We found Duarte’s testimony that he merely repeated to Santos during their telephone conversation Cabral’s statement “If he has the money, let him stay” to be not credible.  Even if his testimony that he was with Cabral in court during his telephone conversation with Santos were believed (which it is not given that the evidence shows that the eviction occurred on a Monday rather than a Friday when Duarte and Cabral were in court), Duarte’s testimony that, in response to Santos’s call, his jaw dropped to such a degree that it caused Cabral to ask him what was wrong was not believable.  Given Santos’s practice of informing Duarte directly of things happening at the NBHA and his knowledge of John’s pending eviction proceedings, her telephone call about John’s eviction could hardly have surprised let alone “flabbergasted” Duarte.   

[5]  There is no evidence that Duarte knew on September 13, 2010, that John would receive assistance from Coastline or knew what the specific terms of John’s agreement with the NBHA would be.

[6]  Santos testified that her belief that the conversation took place on a Friday was based on Duarte’s telling her during the conversation that he was in court and the fact that Duarte went to court on Fridays.

[7]  Santos lost some credibility by repeatedly being somewhat defensive and evasive in her answers during cross-examination.  For example, Santos resisted admitting that she had any disagreements with Duarte; insisting that she always did what Duarte told her to do because he was her superior.  She would not even admit to an internal disagreement with Duarte.  This did not however negate her credibility regarding the essential content of her telephone conversation with Duarte. 

[8]  Duarte also lost credibility in his testimony concerning Cabral, in which he tried to shift all responsibility for stopping John’s eviction to her.  Duarte characterized Cabral as having a “legal aid mentality” which caused her to be excessively lenient on tenants.  Duarte testified that other NBHA property managers repeatedly complained to him about Cabral being too lenient, even though according to his own testimony it was Duarte, not Cabral, who made the decisions.  Given that Cabral handled about 1000 cases for the NBHA over 5 years, it is unlikely that she behaved as Duarte described.  In addition, Duarte, contrary to his response to Interrogatory No. 18, claimed that Cabral had the authority to stop evictions (which Cabral denied).  Duarte, however, inconsistently testified, “So we listened to the lawyer’s recommendation.  If the lawyer made a recommendation and if the lawyer wanted to do a certain thing, that’s what we did.”   Duarte also lost credibility through his response to the Presiding Officer’s direct question, “Prior to getting that phone call, did you have any knowledge that the eviction was scheduled that day?” Duarte’s response, “No, ma’am.  Because in her [Santos] testimony she says, ‘By the way, your brother’s being evicted.’ So how did I know if my brother was being evicted if she says, ‘By the way, your brother’s being evicted’?” came across as protesting too much his lack of knowledge.