Settlement  In the Matter of Francis Molla

Date:	01/24/1996
Organization:	State Ethics Commission
Docket Number:	540

Disposition Agreement

The State Ethics Commission ("Commission") and Francis Molla
("Molla") enter into this Disposition Agreement ("Agreement")
pursuant to s.5 of the Commission's Enforcement Procedures. This
Agreement constitutes a consented to final order enforceable in the
Superior Court, pursuant to G.L. c. 268B, s.4(j).

On March 30, 1994, the Commission initiated, pursuant to G.L.
c. 268B, s.4(j), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A, by Molla. The
Commission has concluded its inquiry and, on April 11, 1995, found
reasonable cause to believe that Molla violated G.L. c. 268A, s.3.

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

Findings of Fact

1. During the relevant period, Molla was a builder and
developer involved in various private construction projects in the
Town of Franklin. In connection with these projects, Molla had
matters before the building department, the planning board and the
conservation commission. In furtherance of these construction and
development projects, Molla had dealings with various town
officials including Bauer as town administrator.

2. During the time here relevant, Molla had completed
projects, had pending projects and expected to have additional
projects in Franklin.

3. Wolfgang Bauer ("Bauer") is the Franklin town
administrator. As town administrator, Bauer is the chief executive
officer of the town and is responsible for the effective
administration of all town affairs placed in his charge by or under
the town charter.[1]

4. As town administrator, Bauer occasionally participates in
matters concerning private construction projects in town. For
example, Bauer occasionally attends meetings of and makes
recommendations to the zoning board of appeals, the planning board
and the conservation commission. He is involved in matters
concerning zoning bylaw enforcement, bond posting, the setting of
commercial developers fees and establishing development conditions
(such as betterments, sidewalks, traffic studies, etc.). Bauer
also appoints, subject to the consent of the City Council, and has
the ability to terminate the building inspector and other major
town officials.

5. At all times here relevant, Molla and builder/developer
Patrick Marguerite ("Marguerite") and/or their families owned an
apartment building in Franklin called the Union Square Apartments.

6. In February 1992, Bauer was looking for an inexpensive
apartment to rent until his divorce was resolved, as he was living
out of a hotel room. The Union Square Apartments had many
vacancies.

7. Bauer, Marguerite and Molla entered into an oral agreement
that allowed Bauer to rent one of the vacant Union Square two
bedroom apartments at a reduced rent ("the apartment"). Bauer,
Marguerite and Molla testified that they agreed that Bauer could
rent the apartment at the reduced rate until Molla and Marguerite
could rent the apartment at the prevailing market rate, at which
time Bauer would either have to leave or pay the full rent.

8. Union Square two bedroom apartments rented for $500 and up
per month. There were no set rental values for all two bedroom
apartments, as the apartments were assigned rental values based
upon their distance from the end of the building; farthest away
from the railroad tracks had a higher rent, and those

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next to the railroad tracks had a lower rent. Molla, or his agent,
selected the apartment that Bauer would occupy based on the
existing vacancies. Bauer and Molla testified that Bauer paid $200
rent each month for the apartment he occupied. There were always
vacancies during Bauer's occupancy.

9. Bauer rented the apartment under this arrangement from
February 1992 until September 1994 (31 months),[2] when Marguerite
and Molla transferred ownership of the apartment building to a bank
in lieu of foreclosure.

Conclusions of Law

10. Section 3(a) of G.L. c. 268A, prohibits anyone from,
directly or indirectly, giving a municipal employee anything of
substantial value for or because of any official act performed or
to be performed by the municipal employee.

11. Anything with a value of $50 or more is of substantial
value for s.3 purposes.[3]

12. The above-described reduced rent rate was of substantial
value each month.

13. Molla, by giving Bauer a reduced rental rate each month
while Bauer then was, recently had been or soon would be in a
position to take official action concerning Molla's projects in
town, gave Bauer a gratuity for or because of official acts or acts
within his official responsibility performed or to be performed by
Bauer as town administrator. In so doing, Molla violated G.L. c.
268A, s.3 each month.[4,5]

14. The Commission is aware of no evidence that the rental
arrangement referenced above was provided to Bauer with the intent
to influence any specific act by him as town administrator. The
Commission is also aware of no evidence that Bauer took any
official action concerning any of Marguerite's or Molla's projects
in return for the gratuities. However, even though the gratuities
were only intended to foster official goodwill, they were still
impermissible.[6,7]

15. Molla fully cooperated with the Commission's
investigation.

Resolution

In view of the foregoing violation of G.L. c. 268A by Molla,
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 and
conditions agreed by Molla:

(1) that Molla pay to the Commission the sum of five thousand
dollars ($5,000) as a civil penalty for his course of conduct
in violation G.L. c. 268A, s.3; and

(2) that Molla waive all rights to contest the findings of
fact, conclusions of law and terms and conditions contained in
this agreement or any other related administrative or judicial
proceedings to which the Commission is or may be a party.

[1] The town administrator administers and implements the
directives and policies adopted by the town council. The
administrator attends all council meetings and has the right to
speak but not vote, makes recommendations to the council, prepares
the town budget, serves as ombudsman and performs any duties
required by the charter, bylaw or order of the council. The
administrator, with the approval of the council, may establish,
reorganize or consolidate any department, board, commission or
office under his jurisdiction. Additionally, subject to
ratification by the council, the administrator's appointments
include police and fire chiefs, zoning board of appeals members and
redevelopment authority members.

[2] Bauer's divorce proceedings continued until September 8,
1993.

[3] See Commonwealth v. Famigletti, 4 Mass App. 584 (1976).

[4] For s.3 purposes it is unnecessary to prove that any
gratuities given were generated by some specific identifiable act
performed or to be performed. In other words, no specific quid pro
quo corrupt intent need be shown. Rather, the gift may simply be
an attempt to foster goodwill. It is sufficient that a public
official, who was in a position to use his authority in a manner
that would affect the giver, received a gratuity to which he was
not legally entitled, regardless of whether that public official
ever actually exercised his authority in a manner that benefitted
the giver. See Commission Advisory No. 8. See also United States
v. Standefer, 452 F. Supp. 1178 (W.D.P.A. 1978), aff'd other
grounds, 447 U.S. 10 (1980); United States v. Evans, 572 F. 2d 455,
479-482 (5th Cir. 1978).

[5] In separate disposition agreements, Bauer and Marguerite
acknowledge violating s.3 by entering into the above reduced rental
arrangement.

[6] As discussed above in footnote 4, s.3 of G.L. c. 268A is
violated even where there is no evidence of an understanding that
the gratuity is being given in exchange for a specific act
performed or to be performed. Indeed, any such quid pro quo
understanding would raise extremely serious concerns under the
bribe section of the conflict of interest law, G.L. c. 268A, s.2.
Section 2 is not applicable in this case, however, as there was no
such quid pro quo between Bauer and Marguerite and/or Molla.

[7] There may have been a "mixed motive" in Marguerite and
Molla giving and Bauer accepting the reduced rate apartment. In
other words, Marguerite and Molla may have given Bauer the reduced
rate for these reasons: (1) to foster official goodwill with Bauer
as town administrator; (2) to generate income from an otherwise
vacant apartment, and (3) to assist Bauer while he was going
through his divorce.

This "mixed motive" contention is not a defense. Where a
public employee was, recently had been, and/or soon would be in a
position to take official action concerning matters affecting a
party's

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interests, the party's gift of something of substantial value to
the public employee and the employee's receipt thereof violates
s.3, even if there were additional reasons for the offer and
receipt of the gift, unless the evidence establishes that these
other reasons constitute the complete motive for the gift. See
Advisory No. 8. See also In re Flaherty, 1990 SEC 498.