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Settlement In the Matter of Francis M. Magliano

Date: 10/29/1986
Organization: State Ethics Commission
Docket Number: 312

Table of Contents

Disposition Agreement

 This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Francis M. 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 May 20,1986, the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, involving Mr. Magliano, the building superintendent for the city of Brockton. The Commission concluded its inquiry and, on July 29,1986, found reasonable cause to believe that Mr. Magliano violated G.L. c. 268A, s.3(b). Pursuant to G.L. c. 268B s.4(c), the Commission also authorized the initiation of an adjudicatory proceeding to determine whether there has been a violation. An Order to Show Cause issued on August 25,1986, initiating such a proceeding. 

The parties now agree to the following findings of fact and conclusions of law: 

1. From January, 1984 to the present. Carl D. Pitaro has been the elected Mayor of Brockton. As Mayor of the city of Brockton, Mr. Pitaro is a municipal employee as that term is defined in G.L. c. 268A, s. 1(g). 

2. From January, 1984 to the present, Francis'!. Magliano has been the building superintendent for the city of Brockton. As building superintendent, r. Magliano is a municipal employee as that term is defined in G.L. c. 268A, s.1(g). 

3. James C. Mihos is a resident of Brockton, Massachusetts. Since 1979, his family has owned a parcel of land on Pleasant Street in Brockton which is the proposed site of a new hotel project. (The land is owned by James and Peter Mihos, Trustees of the 167 Pleasant Street Trust.) 

4. In the fall of 1984, Mr. Mihos entered into an agreement with Ocean Properties Limited, a Florida development company, to sell 7.3 acres of the 36 acre parcel on Pleasant Street to Ocean Properties Limited for development as a hotel project. Under the city of Brockton's zoning ordinances, the parcel was zoned for "Office Commercial" use, which did not allow for a hotel. The Mihos agreement with Ocean Properties Limited was contingent on Ocean Properties obtaining all the necessary permits, including a permit to allow a hotel to be built on the parcel. 

5. In late March, 1985, Mr. Mihos met with Mr. Magliano in city hall to discuss the possibility of a hotel on this site. At this meeting, Mr. Magliano advised Mr. Mihos of the zoning issues and explained two possible options: a special permit or a zoning change by the city council. As a developer and citizen of Brockton, Mr. Mihos was aware of a prior proposed hotel project which failed to win support in the city partly because the project did not include a "name" hotel or conference facilities and a question had been raised concerning the quality of the construction. Consequently, Mr. Mihos requested Mr. Magliiano to set up a meeting for him with Mayor Pitaro to discuss the city's concerns regarding the quality of the construction and nature of facilities being proposed. 

6. Shortly after the initial meeting between Mr. Mihos and Mr. Magliano, Mr. Magliano and Mr. Mihos met with Mr. Pitaro in city hall to discuss the proposed hotel project. In the course of this discussion. Mr. Mihos invited Mr. Pitaro and Mr. Magliano to accompany him to Florida to see other hotels developed by Ocean Properties Limited in order to observe the quality of construction and the type of facilities that this company developed, as well as to meet the personnel who would be involved in the Brockton project. Mihos also invited Mr. Pitaro and Mr. Magliano to bring their spouses tin the trip. While Mihos intended to pay for the costs of the trip, Mr. Pitaro ad Mr. Magliano originally intended to pay their own costs. 

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7. Mr. Mihos obtained airline tickets through a Canton travel agency and paid $238.00 for each of the six round-trip coach fare tickets on April 3, 1985. Mr. Pitaro and Mr. Magliano previously had attempted to buy their own tickets through a different agency. 

8. On Friday, April 12, 1985, the Pitaros, Maglianos, and Mihoses flew from Boston to Miami, Florida, arriving in Miami at approximately 1:30 pm. Mr. Mihos rented one car at a cost of $149.00 and the six drove to Delray Beach, arriving at their hotel at approximately 6 pm. 

9. Mr. Mihos had also arranged to have all six members in the party stay at the Holiday Inn at Delray Beach in Florida, a hotel developed by Ocean Properties. The hotel accommodations (at a cost of $192.00 per couple for three nights) were paid for by Ocean Properties. While in Florida, the three couples shared the cost of their meals. 

10. On Saturday, the Pitaros, Maglianos and Mihoses, driven and escorted by a representative of Ocean Properties, Ltd., examined several hotels, an office complex and a construction site all developed or being developed by Ocean Properties. On Sunday, after attending church, the six again joined one of the principals of Ocean Properties, Ltd. on his boat. On Monday, April 15,1985, Patriots Day and a legal holiday, the six drove back to Miami in the vehicle rented by Mr. Mihos and took a 12:20 pm. flight back to Boston arriving at approximately 3:30 p.m. 

11. Prior to the Florida trip, Mr. Pitaro had publicly supported the construction in Brockton of a quality "name" hotel complex which would include conference facilities. Upon his return from Florida, Mr. Pitaro spoke publicly in support of the proposed hotel project on the Mihos parcel of land at public meetings, monthly press conferences and before various service groups 

12. The proposal to rezone part of the Mihos' property to "General Commercial" was submitted to the City Council June 17,1985. It passed the Finance Committee and was the subject of public hearings before the Planning Board and Council Ordinance Committee before being passed by a 2/3 vote of the full City Council on October 15,1985. 

13. The ordinance was presented to Mayor Pitaro on October 18, 1985. Pursuant to the Brockton city charter the Mayor has the authority to: (1) sign the amendment into law; (2) veto the amendment and return it to the Council with his objections, at which time it can still become law upon another 2/3 vote of the Council; or (3) take no action on the amendment, at which point the amendment becomes law within 10 days of it being presented to the Mayor. The Mayor signed the ordinance rezoning part of Mihos' land on October 18,1985, the same day it was presented to him. 

14. As building superintendent, Mr. Magliano would be responsible for issuing building permit(s) for the hotel complex after reviewing the plans and specifications submitted by the developer and for ensuring the project was in compliance with the state building code and the local zoning ordinances. 

15. General Laws chapter 268A, s.3(b) prohibits a municipal employee from directly or indirectly receiving for himself anything of substantial value, otherwise than as provided by law for the proper discharge of official duty, for or because of any official act performed or to be performed by him. 

16. Based upon the facts and conduct set forth in paragraphs 1 through 14, above, Mr. Magliano violated s.3(b). 

17. The Commission has found no evidence suggesting corrupt intent or an intentional or knowing violation of the law by Mr. Magliano.  Based on the foregoing facts, 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 agreed to by Mr. Magliano:  1. that he pay to the Commission the amount of one thousand dollars ($1,000) as a civil penalty for his violation of s.3(b);  2. that he pay to the Commission the amount of $668.00 as forfeiture of the economic advantage gained; and  3. that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions under this Agreement in this or any related administrative or judicial civil proceedings in which the Commission is a party.