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Settlement In the Matter of Bernard J. Smith

Date: 09/23/1980
Organization: State Ethics Commission
Docket Number: 130

Table of Contents

Disposition Agreement

This Agreement is entered into between the State Ethics
Commission ("Commission") and Bernard J. Smith ("Mr. Smith"),
pursuant to Section 11 of the Commission's Procedures Covering the
Initiation and Conduct of Preliminary Inquiries and Investigations.
The parties agree that this Agreement constitutes a final order of
the Commission enforceable in the Superior Court of the

On January 23,1980, the Commission, pursuant to Section 4(a)
of General Laws Chapter 268B, initiated a Preliminary Inquiry into
possible violations of the Conflict of Interest Law, General Laws,

Chapter 268A, involving Mr. Smith, an independent contractor
engaged by the Massachusetts Department of Public Health, Lemeul
Shattuck Hospital ("Hospital").

The Commission has concluded its investigation into Mr.
Smith's involvement in the matters set forth herein and makes the
following findings of fact and conclusions of law to which the
parties hereto agree.

Findings of Fact

1. Mr. Smith has been engaged as a nurse recruiter for the
Massachusetts Department of Public Health, Lemeul Shattuck Hospital
since November of 1978. His official duties as a nurse recruiter
include traveling through New England and other parts of the United
States on behalf of the Hospital to attend nursing conventions and
other events organized for the purpose of nurse recruitment. His
contract of employment with the Commonwealth provides for
compensation in the form of salary, together with reimbursement for
travel and related expenses. Said contract also authorizes Mr.
Smith to contract on behalf of the Hospital directly with private
businesses for advertising and other nurse recruiting related
services. Mr. Smith's contract for the period from November of 1978
through June of 1979 provided for salary at the rate of $100 per
day; an advertising budget of $3,500, a travel and lodging budget
of $1,500, and an external recruitment budget of $2,000. His
contract from July 1979 through June 1980 provided for salary of
$109.04 per day; an advertising budget of $9,000, a travel and
lodging budget of $3,500, and an external recruitment budget of

According to the terms of said contract, Mr. Smith was to
submit itemized vouchers for payment of advertising, travel and
recruiting expenses on forms approved by the Dept. of Public Health
to the Fiscal Office.

2. During 1978 and 1979, Mr. Smith regularly contracted on
behalf of the Hospital with Alfred S. Buyer Inc. of Needham, for
advertising related to the recruitment of nurses for the Hospital.
During this same period of time Mr. Smith occasionally contracted
with Prime National Publishing, Inc. of Weston ("Prime") on behalf
of the Hospital for other services related to the recruitment of
nurses for the Hospital. Both of these firms, promptly and
satisfactorily performed all services required by these contracts
and periodically submitted bills to Mr. Smith for payment. Mr.
Smith routinely requested and received reimbursement from the
Commonwealth for these expenses but neglected to forward payment
to the aforementioned firms for several months. These contracts
totaled in excess of $5,000.

3. On numerous occasions during 1979 and 1980 Mr. Smith
attended and participated in Nursing Job Fairs, organized and
conducted by Prime in cities throughout the United States. Mr.
Smith was employed by Prime at these Job Fairs at the rate of $200
per day and received air travel and lodging paid for by Prime. Mr. Smith 
also attended several of these same job fairs on behalf of the Hospital 
and received his full salary of $103.04 per day from the Commonwealth
in addition to receiving compensation and related expenses from
Prime. The total salary he received from the Commonwealth while
working simultaneously for Prime at these job fairs was $2,679.04.

4. In connection with two of the job fain identified
above, Mr. Smith contracted with Prime on behalf of the Hospital 
to rent exhibitor's booth space at job fairs at which Mr. Smith was also
employed by Prime. At one of these job fairs, the contract to rent
exhibitor's booth space was cancelled prior to the job fair.

Conclusions of Law

5. Mr. Smith's conduct as set-out in Paragraph 2, above,
violated Section 23(d) of Chapter 268A in that he used his official
position to obtain unwarranted privileges, to wit: the personal use
of the Commonwealth's funds for several months, which funds were
properly due and payable to those firms mentioned in Paragraph 2.

6. Mr. Smith's conduct as set out in Paragraph 3, above,
violated Section 4(a) and 4(c) of Chapter 268A in that Mr. Smith
received compensation from and acted as an agent for Prime at job
fairs for which the Commonwealth had also compensated Mr. Smith and
at which the Commonwealth had a direct and substantial interest in
his full time recruiting services.

7. Mr. Smith's conduct as set out in Paragraph 4, above,
violated Section 6 of Chapter 268A, in that he participated in his
official capacity, in the award of contracts between the Hospital
and Prime, a business organization with which he had an arrangement
for employment at job fairs.


WHEREFORE, 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
representations, terms and conditions hereby made and agreed to by
Bernard J. Smith:

1. That he is represented by Harvey Alford, Esq., 600 Pleasant
St., Watertown, MA and has been fully advised as to all matters
relating to these proceedings and this agreement;

2. That he cease and desist from any present or future conduct
violating General Laws, Chapter 268A;

3. That he pay the State Ethics Commission the sum of $1,500
forthwith as civil penalty for the following violations:

(a) $500 for violating Section 4 of Chapter 268A,

(b) $500 for violating Section 6 of Chapter 268A;

(c) $500 for violating Section 23 of Chapter 268A;

4. That he pay to the State Ethics Commission the sum of
$2,679.04 as recoupment of salary received from the Commonwealth
at Nursing Job Fairs at which he was also employed and compensated
by a private firm; which payments are to be made in accord with the
schedule of payments set out in appendix A of this Agreement and
incorporated herein by reference; 

5. That, in the future he promptly pay all vendors, with whom
he has occasion to contract with on behalf of the hospital, in
full, in accordance with their billing terms; and

6. That he waive all rights to contest findings of fact,
conclusions of law and terms and conditions contained in this
Agreement in this or any related administrative or judicial