Settlement  In the Matter of Gene Covington

Date:	12/02/2010
Organization:	State Ethics Commission
Docket Number:	10-0024

Disposition Agreement

The State Ethics Commission (the ("Commission") and Gene Covington ("Covington") enter into this Disposition Agreement pursuant to Section 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, § 4(j).

On September 18, 2009, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Covington. The Commission has concluded its inquiry and, on July 16, 2010, found reasonable cause to believe that Covington violated G.L. c. 268A.

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

Findings of Fact

1. During the relevant time period, Covington was a City of Somerville Inspectional Services Division ("ISD") building inspector. As part of his duties, Covington was responsible for issuing building permits and performing inspections in Somerville.
    
2. Covington and his wife reside at a home in Somerville (the "House") which is owned by Covington's mother-in-law.
    
3. Joaquim Correia, Jr. ("Correia") owns JEJ General Contractor, Inc. ("JEJ"), a company that provides construction services.
    
4. On four occasions between June 2005 and September 2007, Correia/JEJ performed home renovation/improvement work at the House. The projects involved roof stripping and repair; replacement of stairs; masonry work; and replacing a kitchen sink and base cabinets. Covington's wife paid Correia a total of $14,300 for this work from a joint account she holds with Covington.
    
5. In or about 2006, Covington performed the final inspection of the roofing work Correia/JEJ performed at the House.
    
6. ISD policy prohibits inspectors from recommending contractors. Nevertheless, on at least five occasions between 2007 and 2008, Covington, in his capacity as an ISD inspector, recommended Correia/JEJ to property owners in need of a contractor. These property owners subsequently hired Correia/JEJ.
    
7. On six occasions between 2007 and 2008, Covington, in his capacity as an ISD inspector, approved building permit applications on which Correia/JEJ was the listed contractor, and subsequently issued building permits to Correia/JEJ.
    
8. On four occasions between 2007 and 2008, Covington, in his capacity as an ISD inspector, performed inspections of projects completed under permit by Correia/JEJ.
    
9. As an ISD inspector, Covington was a municipal employee as defined in G.L. c. 268A, § 1.

Conclusions of Law

Section 19

10. Section 19 of G.L. c. 268A prohibits a municipal employee from participating[1] as such an employee in a particular matter [2] in which, to his knowledge, he or an immediate family [3] member has a financial interest. [4]

11. The decision to sign off on the final inspection of the roofing work performed on the House was a particular matter.

12. Covington participated in this particular matter by, as an ISD inspector, signing off on the final inspection.

13. Covington's mother-in-law is a member of Covington's immediate family.

14. Covington's mother-in-law had a financial interest in the particular matter because the roofing work was performed on her property, and she paid for the work.

15. Covington knew of his mother-in-law'' financial interest when he signed off on the inspection.

16. Accordingly, by so participating in this particular matter, Covington violated § 19.

Section 23(b)(2)

17. Section 23(b)(2) of G.L. c. 268A prohibits a municipal employee from knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals. [5]

18. By, on five occasions in his capacity as an ISD inspector, recommending Correia/JEJ to property owners in need of a contractor, Covington knowingly used his official position as an ISD inspector.

19. A contractor recommendation from an ISD inspector was a benefit and, therefore, was a privilege.

20. This privilege was of substantial value because the recommendation was likely to and did in fact result in Correia/JEJ obtaining work.

21. The privilege was unwarranted because ISD policy prohibits inspectors from recommending contractors.

22. This unwarranted privilege was not properly available to similarly situated individuals.

23. By, on the five above-described occasions, using his official position as an ISD inspector to recommend Correia/JEJ to property owners in need of a contractor, Covington knowingly or with reason to know used his official position to obtain an unwarranted privilege of substantial value for Correia/JEJ that was not properly available to other similarly situated individuals. Therefore, in so acting, Covington repeatedly violated § 23(b)(2).

Section 23(b)(3)

24. Section 23(b)(3) of G.L. c. 268A prohibits a municipal employee from knowingly, or with reason to know, acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. The section further provides that it shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority the facts which would otherwise lead to such a conclusion.

25. By, as an ISD inspector, approving building permit applications for, and issuing building permits to Correia/JEJ, and performing inspections of projects completed under permit by Correia/JEJ, as described above, all while Covington had recently had significant private business dealings with Correia/JEJ, Covington, knowingly, or with reason to know, acted in a manner which would cause a reasonable person, having knowledge of all the relevant circumstances, to conclude that Correia/JEJ could unduly enjoy Covington's favor in the performance of his official duties and/or that Covington was likely to act or fail to act as a result of kinship or undue influence of Correia/JEJ. Covington did not file any § 23(b)(3) disclosure to dispel this appearance of impropriety. Therefore, in so acting, Covington repeatedly violated § 23(b)(3).

In view of the foregoing violations of G.L. c. 268A by Covington, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, based on the following terms and conditions agreed to by Covington:

(1) that Covington pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $5,000 as a civil penalty for violating G.L. c. 268A, §§ 19, 23(b)(2) and 23(b)(3); and

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

[1] Participate means to participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, § 1(j).

[2] Particular matter means any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, § 1(k).

[3] Immediate family means the employee and his spouse, and their parents, children, brothers and sisters. G.L. c. 268A, §1(e).

[4] Financial interest means any economic interest of a particular individual that is not shared with a substantial segment of the population of the municipality. See Graham v. McGrail, 370 Mass. 133 (1976). This definition has embraced private interests, no matter how small, which are direct, immediate or reasonably foreseeable. See EC-COI-84-98. The interest can be affected in either a positive or negative way. EC-COI-84-96.

[5] G.L. c. 268A was amended by c. 28 of the Acts of 2009. The language of § 23(b)(2) now appears in § 23(b)(2)(ii) of G.L. c. 268A, as amended.