| Date: | 03/03/1988 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 354 |
- This page, In the Matter of Frank Magliano, is offered by
- State Ethics Commission
Settlement
Settlement In the Matter of Frank Magliano
Table of Contents
Disposition Agreement
This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Frank 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 July 27, 1987, the Commission initiated, pursuant to G.L. c. 268B, s.4(a), a preliminary inquiry into a possible violation of the conflict of interest law, G.L. c. 268A, by Mr. Magliano, the Building Inspector for the City of Brockton. The Commission has concluded that inquiry and, on October 26, 1987, found reasonable cause to believe that Mr. Magliano violated G.L. c. 268A, s.19.
The Commission and Mr. Magliano now agree to the following findings of fact and conclusions of law:
1. Mr. Magliano is the Building Inspector in Brockton and, as such, has overall supervision of the Public Property Department. Mr. Magliano is therefore a municipal employee as defined in s.1(g) of G.L. c. 268A.
2. Mr. Magliano has a son, Daniel J. Magliano (Daniel). Daniel is a member of Mr. Magliano's immediate family within the meaning of G.L. c. 268A, s.1(e).
3. On June 2, 1986, Mr. Magliano posted a promotional bulletin in the Public Property Department shop giving notice of an opening for a permanent storekeeper at $9.16 per hour, starting July 1, 1986. The bulletin was posted for five working days as required by G.L. c. 31, s.29.
4. The creation of the position of storekeeper had been approved by the Brockton City Council in the spring of 1986, with an annual salary of $19,125.00.
5. On June 11, 1986, Mr. Magliano filed a municipal Civil Service Requisition and a Position Description with the Division of Personnel Administration (DPA). The requisition stated that the position of storekeeper would be a newly-created, full-time, permanent position. The requisition also stated that the appointment would be made by certification from an existing eligible list established as a result of an open competitive examination or, if there was no suitable eligible list, by holding an open competitive examination. Mr. Magliano signed the requisition in certification that he was the officer authorized by law to make the appointment. Mr. Magliano also signed the position description as the appointing authority. There was, in fact, no existing eligible list in June, 1986 from which applicants could be appointed to the storekeeper position.
6. By letter dated June 17, 1986, Mr. Magliano notified the DPA that he had made a provisional appointment of Daniel as storekeeper, effective June 30, 1986. In the letter, Mr. Magliano certified that he had been unable to find a veteran qualified for the position who was available and that he had complied with all the provisions of G.L. c. 31, s.25[1]. Daniel was the sole applicant for the position. At no time did Daniel take an open competitive examination for the storekeeper position; between June, 1986 and April, 1987, no such examination was held to create an eligible list of applicants for the position.
7. On August 6, 1986, Mr. Magliano sent a letter to DPA requesting that the requisition, dated June 11, 1986, be changed to reflect a salary of $9.25 per hour (instead of $9.16 per hour). Mr. Magliano also requested that the notification of provisional appointment be changed to reflect an effective date of July 14, 1986.
8. On January 16, 1987 The Brockton Enterprise printed an article alleging that Mr. Magliano had created the new position of storekeeper and appointed his son Daniel to the position. The article raised the issue of whether Mr. Magliano's hiring of Daniel violated the state conflict of interest law.
9. On April 17, 1987, Daniel submitted his resignation from his position, citing a possible conflict of interest as his reason for taking the action. On the same date, Mr. Magliano sent a letter to City Solicitor Paul Adams informing him of Daniel's resignation "[d]ue to a possible conflict of interest.
10. Mr. Magliano has maintained throughout these proceedings that when he took the steps involved in
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hiring Daniel, he was unaware that his actions would create a conflict of interest. The Commission knows of no evidence indicating that Mr. Magliano knowingly or intentionally violated the conflict of interest law. Mr. Magliano understands that ignorance of the law is no defense to a violation of G.L. c. 268A.[2]
11. Section 19 of G.L. c. 268A provides in relevant part that, except as permitted by s.19,[3] a municipal employee is prohibited from participating, as such an employee, in a particular matter in which, to his knowledge, a member of his immediate family has a financial interest.
12. The appointment of Daniel to the storekeeper position was a "particular matter." Mr. Magliano "participated" in that matter by making the appointment and by taking the other actions concerning the appointment which are set forth above. Because the position was a paid position, Daniel had, at the time of the appointment, a "financial interest" in the appointment. Mr. Magliano was aware at the time he appointed his son that his son would receive compensation for his services as a storekeeper. As Mr. Magliano's son, Daniel was a member of Mr. Magliano's immediate family within the meaning of G.L. c. 268A, s.19. G.L. c. 268A, s.1(e).
13. By appointing his son to the storekeeper position, as described above, Mr. Magliano participated as the Brockton Building Inspector in a particular matter in which his son had a financial interest, thereby violating G.L. c. 268A, s.19.
In view of the foregoing violation of G.L. c. 268A, s.19, 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 to by Mr. Magliano:
1. that he pay to the Commission the sum of one thousand dollars ($1,000.00) as a civil penalty for violating G.L. c. 268A, s.19 by appointing his son to the storekeeper position; and
2. that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this agreement in any related administrative or judicial proceeding to which the Commission is or may be a party.