Settlement  In the Matter of Kevin Poirier

Date:	05/12/1994
Organization:	State Ethics Commission
Docket Number:	490

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Kevin
Poirier ("Rep. Poirier")

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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.
Poirier had violated the conflict of interest law, G.L. c. 268A.
The Commission has concluded its inquiry and, on January 25, 1994,
voted to find reasonable cause to believe that Rep. Poirier
violated G.L. c. 268A, s.3.
 

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

Findings of Fact

1. Rep. Poirier has served in the state legislature from
January 1977 to the present. During that time, he has served on
various committees including Ways & Means from 1991 to the present.
Rep. Poirier also served as the assistant minority leader (1987 to
1990).
 

2. Rep. Poirier has co-sponsored two bills affecting the
insurance industry.
 

3. In addition, Rep. Poirier, as a member of various
legislative committees, has participated in 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. Poirier also has 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 the senior John Hancock Mutual Life Insurance
Company, Inc. ("Hancock") lobbyist responsible for Massachusetts
legislation. At all relevant times, he 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. Poirier knew that Sawyer was
a Massachusetts registered lobbyist for Hancock. On occasion,
Sawyer lobbied Rep. Poirier 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. Each summer from 1988 to 1991, Sawyer took a group of
legislators and their guests out for dinner and drinks at a Cape
Cod restaurant. In 1988 the dinner was held at The Regatta
Restaurant in Cotuit. In 1989 through 1991 the dinner was held at
the Cranberry Moose Restaurant in Yarmouthport. The cost of each
of these dinners was between $736.10 and $1,131.89. On the
evenings of July 1, 1988, July 2, 1989, July 2, 1990, and July 4,
1991, Poirier and his wife attended these dinners. The Poiriers'
pro rata share of the cost of the dinners was $81.79, $160.79,
$150.91 and $125.54, respectively.
 

9. Between November 24, 1990, and November 29, 1990, Rep.
Poirier, his spouse and eight year old son were in Walt Disney
World, Florida where Rep. Poirier had registered and attended an
educational conference sponsored by the Conference of Insurance
Legislators. On the evening of November 25, 1990, Rep. Poirier,
his spouse, and son, along with approximately 25 other legislators,
lobbyists and their guests, ate at the Pomp Grill Lounge in Walt
Disney World. The cost of the meal was approximately $2,000.00.
The Poiriers' pro rata share of the cost of the dinner was
approximately $165.00. Similarly, on November 28, 1990, Rep.
Poirier and his family, along with approximately 10 other
legislators, lobbyists and their guests, ate at the Buena Vista
Palace at Walt Disney World. The cost of the dinner was $342.48.
The Poiriers' pro rata share of the cost of the dinner was
approximately $65.00. Sawyer paid for both of these meals.

Conclusions of Law

10. 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 his official
responsibility performed or to be performed by him.
 

11. Massachusetts legislators are state employees.
 

12. Anything worth $50 or more is of substantial value for
s.3 purposes.[1]
 

13. By accepting a total of $749.03 in drinks and meals from
Sawyer, all while Rep. Poirier was in a position to take official
action which could benefit that lobbyist and/or his employer,
Hancock, Rep. Poirier accepted items of substantial value for or
because of official acts or acts within his official
responsibility

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performed or to be performed by him. In doing so he violated
s.3(b).[2]
 

14. The Commission is aware of no evidence that the
gratuities or gifts referenced above were provided to Rep. Poirier
with the intent to influence any specific act by him as a
legislator or any particular act within his official
responsibility. The Commission is also aware of no evidence that
Rep. Poirier took any official action concerning any proposed
legislation which would affect the registered Massachusetts
lobbyist in return for the gratuities or gifts. However, even
though the gratuities were only intended to foster official
goodwill and access, they were still impermissible.[3]
 

15. Rep. Poirier cooperated with the Commission's
investigation.

Resolution

In view of the foregoing violations of G.L. c. 268A by Rep.
Poirier, 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. Poirier:
 

(1) that Rep. Poirier pay to the Commission the sum of
two thousand, two hundred and fifty dollars ($2,250.00)
for violating G.L. c. 268A, s.3(b);[4] and
 

(2) that Rep. Poirier 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] See Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587
(1976); EC-COI-93-14.

[2] 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.

Rep. Poirier has argued that s.3 does not apply to meals given
to legislators. There is nothing in the legislative history
regarding s.3 or the language of s.3 to support that argument. In
the Commission's view, s.3 applies to any form of entertainment,
including meals, given to any public official.

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

[3] As discussed above in footnote 2, 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. Poirier.

[4] This amount is approximately three times the value of the
$749.03 in prohibited gratuities received by Rep. Poirier in
violation of s.3. It represents both a disgorgement of the value
of the gratuities and a civil sanction.

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