| Date: | 11/23/1984 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 261 |
- Appearance for Petitioner: Thomas Driscoll, Esq.
- Appearance for Respondent: Michael E. Festa, Esq.
- Commissioners: Diver, Ch.; Brickman, Burns, McLaughlin, Mulligan
- This page, In the Matter of John J. Rosario, is offered by
- State Ethics Commission
Decision
Decision In the Matter of John J. Rosario
Table of Contents
I. Procedural History
Page 205
The Petitioner initiated these adjudicatory proceedings on July 25, 1984 by filing an Order to Show Cause pursuant to the Commission's Rules of Practice and Procedure, 930 CMR 1.01(5)(a). The Order alleged that the Respondent, John J. Rosario, violated G.L. c. 268A, s.23(paragraph 2)(3) by having a company which had a substantial contract with his municipal agency pave a portion of his private firm's parking lot. The Respondent filed an Answer which admitted the material facts alleged, but denied the conclusions of law asserted.
An adjudicatory hearing was held on October 11, 1984 before Commissioner David Brickman, a duly designated presiding officer. See, G.L. c. 268B, s.4(c). The parties thereafter filed post- hearing briefs and presented oral agent before the Commission on November 8, 1984. In rendering this decision and order, each member of the Commission has heard and/or read the evidence and arguments presented by the parties.
II. Findings of Fact
1. John J. Rosario is one of five commissioners of the Barnstable Department of Public Works (BDPW). The BDPW commissioners oversee the management and operation of the BDPW, including awarding all contracts over $2,000, setting BDPW policy, establishing BDPW rules and regulations, and may affirm or overrule any decision made by the BDPW superintendent.
2. In 1982, BDPW contracted with QRS Corp. (QRS) in the amount of $280,000 for the installation of a sewer drainage system in Barnstable. Construction began in November of 1982, was shut down on December 23,1982 for three months during the winter, and was completed in June of 1983.
3. Mr. Rosario is the principal stockholder and officer of Acme Refrigeration, Inc. (Acme) of Hyannis, MA.
4. Mr. Rosario sought to have a portion of the Acme parking lot paved in December of 1982. He received proposals from the Lawrence- Lynch Corporation and Tilcon, Inc. for the job, but both paving contractors subsequently closed down due to a snowstorm. On December 19,1982, Mr. Rosario signed a contract with JJS, Inc. (JJS) for the paving of the Acme parking lot. Mr. Rosario admitted in his Answer that he had asked JJS to hire QRS to perform the paving work.
5. At the December 21, 1984 meeting of the BDPW, the commissioners (including Mr. Rosario) unanimously voted to close down QRS' sewer project for the winter.
6. QRS performed the paving work on the Acme parking lot on December 23, 1982.
7. By check dated December 31, 1982, Mr. Rosario paid JJS $2,720 for the Acme job. JJS wrote a check to QRS for $2,720 on the same date.
III. Decision
For the reasons stated below, the Commission concludes that Mr. Rosario's conduct violated s.23 (paragraph 2)(3), but that no monetary sanction is warranted under the circumstances.
A. Section 23(paragraph 2)(3)
As a Commissioner of the BDPW, Mr. Rosario held an office in a municipal agency and was therefore a municipal employee subject to the provisions of the conflict of interest law. See G.L. c. 268A, s.1(f) and s.1(g). In pertinent part, s.23(paragraph 2)(3) of Chapter 268A prohibits a municipal employee from "by his conduct (giving) reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties.. ." A major purpose of s.23(paragraph 2(3) is "to avoid situations where employees engage in conduct which raises questions about the
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credibility and impartiality of their work as [public] employees. The Commission has consistently applied the [s.23(paragraph 2)(3)] prohibitions whenever public employees have had private financial dealings with the same parties with whom they deal as public employees."[1] Commission Advisory 83-1. In cases where it is unrealistic or impossible for public employees to avoid such private dealings, the Commission has articulated a disclosure procedure which should be compiled with to insure the employee's impartial performance of his official duties. See Commission Advisory 83-1; EC-COI-83-25. A public employee's substantial dealings with a party in both his public and private capacities coupled with failure to take any affirmative steps to eliminate or minimize the impression of favoritism (e.g. disclosure to an appointing official) clearly creates the reasonable basis for the impression that the party will unduly enjoy the public employee's favor. In the Matter of Frank Wallen and John Cardelli, 1984 Ethics Commission 197.
During December of 1982, Mr. Rosario shared with his fellow commissioners the ongoing official oversight responsibilities with regards to QRS' contract with the BDPW. Specifically, Mr. Rosario participated in a matter at the December 21,1982 BDPW meeting which would have a substantial impact on QRS: whether QRS's sewer project would be closed down for the winter. During this period, he also entered into a contract with JJS to have QRS pave a portion of his private firm's parking lot.
Mr. Rosario could have avoided questions concerning his impartiality by disclosing his private dealings to his fellow commissioners and then abstaining on QRS matters before BDPW. He did not. Mr. Rosario also failed to disclose these dealings to the Board of Selectmen. As his appointing officials, the Board of Selectmen could have taken the responsibility for overseeing the potential conflict of interest and for determining how the credibility and impartiality of the BDPW could be maintained.
In light of this non-disclosure, we find that Mr. Rosario's handling of the situation, i.e. doing business with QRS through the third party JJS, creates the appearance that he was trying to conceal these dealings. It may be true that there is no evidence of actual favoritism by Mr. Rosario on QRS' behalf. However, the Commission's consistent position, restated recently in its Wallen decision (supra), is that s.23(paragraph 2)(3) does not require such a showing. The s.23 prohibition is intended to prevent more serious situations from occurring. Accordingly, we find that Mr. Rosario's conduct constituted a violation of s.23(paragraph 2)(3).
B. Sanction
In determining an appropriate sanction, the Commission's policy has been to take mitigating circumstances into account. See, e.g., In the Matter of Louis L. Logan, supra; In the Matter of William G. McLean, 1982 Ethics Commission 75. We take note of the following mitigating circumstances in this case:
(1) Mr. Rosario initially solicited bids from two companies other than QRS to do the paving work. Both paving contractors subsequently closed down due to a snowstorm. Only then did Mr. Rosario solicit from and accept the JJS proposal, albeit with the knowledge that QRS would perform the paving work.
(2) The Petitioner presented no evidence of a private gain on Mr. Rosario's part. The Respondent testified that he paid the going rate for the job, i.e. QRS did not give Mr. Rosario a discount from the market price. Likewise, no evidence of public harm was presented. Mr. Rosario in fact voted against QRS' interest at the December, 1982 meeting rather than showing favoritism.
(3) Mr. Rosario concedes that he should have disclosed the situation to the Barnstable Board of Selectmen and/or the other BDPW commissioners. Upon learning of Mr. Rosario's use of QPS, the Board of Selectmen took administrative action by issuing Mr. Rosario a public reprimand.
In light of these circumstances, we find it would be unnecessary to impose a monetary penalty in this case. Any sanction beyond the public reprimand already issued by the Board of Selectmen and this decision's finding of a violation by the State Ethics Commission would not further the purposes of Chapter 268A.