Settlement  In the Matter of John DeOliveira

Date:	12/13/1989
Organization:	State Ethics Commission
Docket Number:	376

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) ad John DeOliveira (Mr. DeOliveira) 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 possible violations of the conflict of interest law, G.L. c. 268A, by Mr. DeOliveira of Berkley. The Commission has concluded that inquiry and, on January 11, 1989, found reasonable cause to believe that Mr. DeOliveira
violated G.L. c. 268A, s.19.

The Commission and Mr. DeOliveira now agree to the following findings of fact and conclusions of law:

1. At the time here relevant, Mr. DeOliveira was a selectman of the Town of Berkley. Mr. DeOliveira was elected as a Berkley selectman on May 6, 1986 and served until June 27, 1987. Mr. DeOliveira was, therefore, during the period here relevant, a municipal employee as defined in s.1(g) of G.L. c. 268A.

2. Mr. DeOliveira's wife, Elaine DeOliveira (Elaine), is employed full-time by the Town of Berkley as a police dispatcher and was employed as such while Mr. DeOliveira was a selectman. The terms and conditions of employment for police dispatchers are negotiated between the selectmen and the bargaining unit
representing the dispatchers.

3. In 1986, contract negotiations occurred between the selectmen and the bargaining unit representing the dispatchers. Mr. DeOliveira was 

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present at at least some of these negotiations but did not participate in the discussions.

4. At a selectmen's meeting on November 26, 1986, the selectmen were presented with the individual contracts for each of the employees who were represented by the bargaining unit, including the dispatchers. In all, there were about twenty contract sheets for the selectmen to sign that evening. Mr. DeOliveira, along with the other selectmen, signed all twenty of the contract sheets, including that of his wife Elaine. At the next selectmen's meeting, approximately one week later, Mr. DeOliveira went to the selectmen's files and pulled out the copy of his wife's contract that was stored there. Mr. DeOliveira then crossed out his signature on the copy he removed from the file and returned the copy to the file.

5. Section 19 of G.L. c. 268A provides in relevant part that, except as permitted by s.19,[1] 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.

6. The approval of Elaine's contract sheet was a particular matter within the meaning of s.19. Mr. DeOliveira participated in that matter by signing the contract sheet. Because the contract sheet determined the terms and conditions of Elaine's employment, Elaine had, at the time of the signing of the contract sheet, a
financial interest in the selectmen's approval of the contract sheet. Mr. DeOliveira was aware at the time he signed the contract sheet that the approval of the contract sheet would affect the financial interests of Elaine.

7. By signing his wife's contract sheet, as described above, Mr. DeOliveira' participated as a selectman in a particular matter in which his wife 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 agreed to by Mr. DeOliveira:

1. that Mr. DeOliveira pay to the Commission the amount of two hundred fifty dollars ($250.00)[2] as a civil penalty for violating G.L. c. 268A, s.19; and

2. that Mr. DeOliveira waive all rights to contest the findings of fact, conclusions of law, and terms and conditions contained in this agreement and any related administrative or a judicial civil proceeding to which the Commission is or may be a party.

[1] None of the s.19 exceptions applies in this case.

[2] While the Commission can impose a fine of up to $2,000 for each violation of s.19, it has determined that the relatively small fine imposed here is appropriate where the actions constituting the s.19 violation consisted of Mr. DeOliveira's participating in only the formal acceptance and execution of an employment contract (i.e., Mr. DeOliveira's wife's), in the actual negotiation of which Mr. DeOliveira did not participate.