Settlement  In the Matter of Joan Menard

Date:	07/19/1994
Organization:	State Ethics Commission
Docket Number:	496

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Joan Menard
("Rep. Menard") 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 June 22, 1993, the Commission initiated, pursuant to G.L.
c. 268B, s.4(a), a preliminary inquiry into allegations that Rep.
Menard had violated the conflict of interest law, G.L. c. 268A.
The Commission has concluded its inquiry and, on February 25, 1994,
voted to find reasonable cause to believe that Rep. Menard violated
G.L. c. 268A, s.3.
 

The Commission and Rep. Menard now agree to the following
facts and conclusions of law:

Findings of Fact

Page 686

1. Rep. Menard has served in the state legislature from
January 1979 to the present. During that time, she has served on
various committees, including Ways & Means from 1988 to 1990. Rep.
Menard also served as assistant majority whip from 1990 until 1992,
when she became majority whip.

2. Rep. Menard has co-sponsored three bills affecting the
insurance industry.[1]

3. In addition, Rep. Menard, as a member of various
legislative committees, has participated in many hearings on bills
of interest to the insurance industry. Such participation has
included voting on whether such bills should be reported out of
committee. Rep. Menard has also voted on bills of interest to the
insurance industry when they reached the House floor.

4. During the period relevant here, F. William Sawyer
("Sawyer") was a second vice-president for John Hancock Mutual Life
Insurance Company, Inc. ("Hancock"). As such he acted as Hancock's
senior lobbyist responsible for Massachusetts legislation. At all
relevant times, Sawyer was a registered legislative agent (for
Hancock) in Massachusetts. Hancock, a Massachusetts corporation,
is the nation's sixth largest life insurer doing business in all 50
states. It offers an array of life, health and investment
products. As a Massachusetts domiciled life insurer, its
activities are more comprehensively regulated by Massachusetts than
by any other state.

5. At all relevant times, Rep. Menard knew that Sawyer was
a Massachusetts registered lobbyist for Hancock. On occasion,
Sawyer lobbied Rep. Menard regarding various pieces of legislation.

6. Lobbyists are employed to promote, oppose or influence
legislation.

7. One way in which some lobbyists further their legislative
goals is to develop or maintain goodwill and personal relationships
with legislators to ensure effective access to them. Some
lobbyists entertain legislators through meals, drinks, golf and
sporting events in order to develop the desired goodwill and
personal relationships.

8. On the evening of June 17, 1992, Rep. Menard and Sawyer
and their spouses ate dinner at Jasper's Restaurant in Boston.
Sawyer paid for the meal. The Menards' pro rata share of the cost
of the dinner was $179.63.[2]

Conclusions of Law

9. Section 3(b) of G.L. c. 268A prohibits a state employee
from directly or indirectly receiving anything of substantial value
for or because of any official act or act within her official
responsibility performed or to be performed by her.

10. Massachusetts legislators are state employees.

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

12. By accepting a total of $179.63 in drinks and food from
Sawyer while Rep. Menard was in a position to take official actions
which could benefit that lobbyist, Rep. Menard accepted items of
substantial value for or because of official acts and/or acts
within her official responsibility performed or to be performed by
her. In doing so she violated s.3(b).[4]

13. The Commission is aware of no evidence that the gratuity
referenced above was provided to Rep. Menard with the intent to
influence any specific official act by her as a legislator or any
particular act within her official responsibility. Also, the
Commission is aware of no evidence that Rep. Menard took any
official action concerning any proposed legislation which would
affect Hancock in return for the gratuity. However, even though
the gratuity was only intended to foster official goodwill and
access, it was still impermissible.[5]

14. Rep. Menard has fully cooperated with the Commission
throughout this investigation.

Resolution

In view of the foregoing violation of G.L. c. 268A by Rep.
Menard, 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 Rep. Menard:
 

(1) that Rep. Menard pay to the Commission the sum of
five hundred and twenty five dollars ($525.00) for
violating G.L. c. 268A, s.3(b);[6] and
 

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

[1] According to Rep. Menard, the bills were consumer oriented and
adverse to the insurance industry. The bills are as follows:
Co-sponsor: 1986, H. 2034 (authorizing

Page 687

joint life coverage); Co-sponsor: 1989, H. 4374 (increasing
existing mandated mental illness benefit); Co-sponsor: 1989, H.
4376 (requiring health insurance policies to cover services of
rehabilitation counselor); Co-sponsor: 1992, H. 1918 (same as 1989
H. 4376).

[2] Rep. Menard testified that she had a casual friendship with
Sawyer; however, she acknowledges that this was not the motivating
factor in Sawyer paying for the cost of the dinner.

[3] See Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587
(1976); EC-COI-93-14.

[4] For s.3 purposes, it is unnecessary to prove that the
gratuities given were generated by some specific identifiable
act performed or to be performed. As the Commission explained in
Advisory No. 8, issued May 14, 1985, prohibiting private parties
from giving free tickets worth $50 or more to public employees who
regulate them,

Even in the absence of any specifically identifiable
matter that was, is or soon will be pending before the
official, s.3 may apply. Thus, where there is no prior
social or business relationship between the giver and the
recipient, and the recipient is a public official who is
in a position to use [his] authority in a manner which
could affect the giver, an inference can be drawn that
the giver was seeking the goodwill of the official
because of a perception by the giver that the public
official's influence could benefit the giver. In such a
case, the gratuity is given for his yet unidentifiable
"acts to be performed."

Specifically, s.3 applies to generalized goodwill-engendering
entertainment of legislators by private parties, even where no
specific legislation is discussed. In re Flaherty, 1991 SEC 498,
issued December 10, 1990 (majority leader violates s.3 by accepting
six Celtics tickets from billboard company's lobbyists). In re
Massachusetts Candy and Tobacco Distributors, Inc., 1992 SEC 609
(company representing distributors violates s.3 by providing a free
day's outing [a barbecue lunch, golf or tennis, a cocktail hour and
a clam bake dinner], worth over $100 per person, to over 50
legislators, their staffers and family members, with the intent of
enhancing the distributors' image with the Legislature and where
the legislators were in a position to benefit the distributors).

Section 3 applies to meals and golf, including those occasions
motivated by business reasons, for example, the so-called "business
lunch". In re U.S. Trust, 1988 SEC 356. Finally, s.3 applies to
entertainment gratuities of $50 or more even in connection with
educational conferences. In re Stone & Webster, 1991 SEC 522, and
In re State Street Bank, 1992 SEC 582.

On the present facts, s.3 applies to the lobbyist entertaining
Rep. Menard where the intent was generally to create goodwill and
the opportunity for access, even though specific legislation was
not discussed.

[5] 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 the lobbyist and Rep. Menard.

[6] This amount is approximately three times the value of the
$179.63 prohibited gratuity received by Rep. Menard in violation of
s.3. It represents both a disgorgement of the gratuity and a civil
sanction.

Page 688