Settlement  In the Matter of Michael A. Caliri

Date:	03/12/2001
Organization:	State Ethics Commission
Docket Number:	613

Disposition Agreement

This Disposition Agreement is entered into between the State  Ethics Commission and Michael A. Caliri 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, s.40).

On January 19, 2000, 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 Caliri.  The Commission has concluded the inquiry and, on August 23, 2000,  found reasonable cause to believe that Caliri violated G.L. c.  268A.

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

1. Caliri is the director of maintenance and custodial  services ("maintenance director") for the Randolph public schools  ("School Department"). Caliri was appointed to this full-time,  salaried position by the Randolph superintendent of schools ("the  superintendent") on or about January 21, 1997.

2. As maintenance director, Caliri, among other duties,  schedules, supervises and oversees the work of all School  Department custodial and maintenance personnel (including  electricians, plumbers and carpenters) and of private vendors  providing maintenance and repair services to the School Department.  In addition, Caliri authorizes overtime work pursuant to the  governing collective bargaining agreement and signs off on weekly  payroll/attendance sheets for all School Department custodial and  maintenance personnel.

3. In early 1997, Caliri and his wife contracted to purchase  land for a new house in the Manomet section of Plymouth. In  February 1997, the Caliri's contracted with a builder to build the  weather tight shell of the house for $70,000. Pursuant to the  contract, the Caliri's were responsible for the wiring, plumbing,  heating, insulation, exterior paint and all interior finish work  for the house.

4. Also in early 1997, Caliri approached School Department  employee Thomas Steele at work and asked if Steele would build the  kitchen cabinets and countertops and bathroom vanities for the new  house. Steele is a special education teacher who also performs  cabinetry work in the maintenance department part-time during the  school year and full-time during the summer. Caliri coordinates  Steele's cabinetry work with the superintendent's office and signs  off on Steele's time sheets during the summer; however, Steele's  hours of work, compensation and work assignments are determined by  the superintendent, not Caliri. For many years prior to 1997,  Steele had privately made and sold cabinets, countertops and  vanities out of his home wood shop. By 1997, however, Steele had  ceased that business activity and was instead doing cabinet work  only for family and friends. According to Caliri, he was not aware  that Steele had curtailed his business activities when he  approached Steele to discuss the cabinet work. Caliri and Steele  had a friendly work relationship but did not socialize outside of  work. Steele agreed to do the work that Caliri requested for  $3,500, a price that was unilaterally set by Steele. Caliri  purchased all the cabinet hardware separately. Steele built and  installed Caliri's countertops, cabinets and vanities between April  and November 1997. Caliri paid Steele his price for his work as  agreed.

5. In early 1997, Caliri asked a School Department vendor,  Williams Coal & Oil Co. ("Williams Coal & Oil") of Braintree, to  furnish and install the heating system, to rough-in the air  conditioning system and to furnish (except for certain fixtures  purchased by Caliri) and install the plumbing in his new house. The  company agreed to do the plumbing, heating and air conditioning  work for Caliri. The company performed the work between April and  October 1997 and charged Caliri $9,350, a price that was  unilaterally set by the company. Caliri paid Williams Coal & Oil  its price for the work in several installments ending in early  1998. Around the time when Williams Coal & Oil performed the work  at Caliri's new house, the company was one of several vendors  providing price quotes for various plumbing and heating jobs  required by the School Department. Between March and June 1997,

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the company was selected, based upon its price, to perform and did  perform $3,300 worth of plumbing work for the School Department  under Caliri's oversight as maintenance director.

6. In early 1997, Caliri told School Department electrician  Joe Broderick that he was building a new house. Caliri and  Broderick had worked at the same private company for several years  prior to working at the School Department and bad become friends in  that context. In the early 1990's, Caliri had helped Broderick by  renting Broderick a three-bedroom cottage that Caliri owned on the  beach in Manomet for September through May of three years at a low  rent. Broderick wished to reciprocate for Caliri's prior help and  offered to do the wiring of Caliri's new house.

7. Broderick wired Caliri's new house, with materials supplied  by Caliri, over the course of approximately ten Saturdays during  the summer and fall of 1997. Broderick's labor in wiring Caliri's  new house was worth about $3,000. This was, however, less than the  value of the total benefit that Caliri had provided to Broderick  when he rented him the Manomet cottage. Broderick did not charge  Caliri, and Caliri did not pay Broderick anything for wiring  Caliri's new house.

8. During the late spring, summer and fall of 1997, Caliri  requested and received the assistance of School Department  maintenance worker David Kilmurray and then School Department  temporary hourly maintenance worker Ken Pignatelli with the  interior and exterior painting of his new house.[1]

9. As of spring 1997, Kilmurray and Caliri had a friendly  relationship; they occasionally socialized off the job by going  with a group of School Department maintenance workers for drinks  after work at the Randolph Am Vets Post. Caliri and Kilmurray also  had gone to the dog track together on a number of occasions, and  Kilmurray had visited Caliri's home several times. In addition,  Caliri had previously loaned Kilmurray $900 without interest, which  Kilmurray paid in four months.

10. Kilmurray agreed to help Caliri and spent many weekends  and several of his vacation and personal leave days during the  summer and early fall of 1997 helping paint Caliri's house.  Kilmurray also spent a few hours one weekend helping Caliri plant  a lawn for the new house. Kilmurray did not charge Caliri, and  Caliri did not offer to pay or, in fact, pay Kilmurray anything for  his work at Caliri's new house.

11. As of spring 1997, Caliri and Pignatelli, who had known  each other for several years, were not friends and did not  socialize. Caliri had never helped Pignatelli in any private  matter.

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12. Pignatelli agreed to help Caliri and spent many weekends  during the summer and early fall of 1997 helping paint Caliri's  house. Pignatelli, who as a temporary worker did not get paid  vacation days, also, at Caliri's request, took at least one day off  without pay to help paint Caliri's house. Pignatelli did not charge  Caliri, and Caliri did not offer to pay or, in fact, pay Pignatelli  anything for his work at Caliri's new house.

13. Caliri supplied all of the paint and most of the equipment  used by Kilmurray and Pignatelli. Pignatelli supplied some of his  own brushes and drop cloths. Caliri and his wife did some of the  painting, but the substantial majority of the painting was done by  Kilmurray and Pignatelli, with Pignatelli doing significantly more  painting than Kilmurray. Kilmurray's and Pignatelli's combined  labor in painting Caliri's new house was worth about $2,500 (with  Pignatelli's labor being worth about $1,500 of that total).  Kilmurray's landscaping work for Caliri was worth about $50.

14. During the summer of 1997, School Department custodian  Joseph Callahan, at Caliri's invitation, went to Caliri's new house  with Kilmurray and Pignatelli on at least one weekend and one of  his vacation days. On one occasion, while Callahan was at Caliri's  house, Callahan helped wash windows for a few hours at Caliri's  request. On another occasion, also at Caliri's request, Callahan  spent a few hours doing landscaping work at the house, including  helping Caliri plant a large bush and rake out the top soil for the  lawn. At the time, Caliri and Callahan had a friendly relationship  and occasionally socialized off the job at the Randolph Am Vets  Post, including some events which Caliri and his wife attended with  Callahan and a female friend of Caliri's wife. In addition,  Callahan and Caliri's brother Wayne Caliri are close personal  friends. As of the time that Callahan helped Caliri, Caliri, had  never helped Callahan in any private matter. Callahan's work at  Caliri's new house was worth between $60 and $100. Callahan did not  charge Caliri, and Caliri did not offer to pay or, in fact, pay  Callahan anything for his work at Caliri's new house.

15. On the days that the School Department employees helped  Caliri with his new house, Caliri and his wife provided them with  free meals and drinks in appreciation of their help. The men also  socialized with the Caliris after working on the new house,  swimming at the beach and barbecuing. Additionally, on several  weekends when Kilmurray painted, he brought his two young children  with him, and Caliri's wife watched them (together with the  Caliris' two young children) and took them to the beach while  Kilmurray painted. The Caliris also invited Callahan, Pignatelli  and Kilmurray to stay overnight at their cottage on the weekends  that they worked at the new house. Pignatelli stayed at the  Caliris' cottage several nights, Kilmurray (and his children) two  or three nights, and Callahan one or two nights during the course

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of their work on the Caliris' new house. Finally, on Labor Day  weekend, the Caliris paid for Kilmurray and his children to stay  overnight at a nearby motel.[2]

16. During the summer of 1997, Caliri, as School Department  maintenance director, signed off on weekly payroll/attendance  sheets for Steele. During the summer and fall of 1997, Caliri  signed off on weekly payroll/attendance sheets for Pignatelli, and  on several occasions authorized overtime work for Kilmurray,  Broderick and Callahan. During the period of March to December  1997, Caliri approved 145 hours of overtime for Broderick, 323  hours of overtime for Kilmurray, and 473 hours of overtime for  Callahan.[3] Pignatelli, as a temporary worker, was not eligible  for overtime. At the time, the superintendent also reviewed and  approved all overtime sheets before payment was made.

17. In October 1997, when the superintendent was considering  Pignatelli's appointment as a permanent employee, the  superintendent sought Caliri's assessment of Pignatelli. Caliri in  response gave Pignatelli his "highest praises," in part, according  to Caliri, based upon feedback about Pignatelli's work that Caliri  received from the principals of the school where Pignatelli had  worked. The superintendent subsequently appointed Pignatelli to a  permanent position.

18. At no time did Caliri disclose to his appointing  authority, the superintendent, that Caliri had requested and  received help from his School Department subordinates and a School  Department vendor in the construction of his new home and that he  was continuing to take official actions as maintenance director  concerning those subordinates and that vendor.

19. As School Department maintenance director, Caliri is a  municipal employee as defined in G.L. c. 268A, s.1. As such, Caliri  is subject to the provisions of the conflict of interest law, G.L.  c. 268A.

20. 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  unwarranted privileges or exemptions of substantial value which are  not properly available to similarly situated individuals.

21. Receiving without charge services for which payment is  normally required is a privilege. The electrical, painting,  landscaping and window washing services that Broderick, Kilmurray,  Pignatelli and Callahan provided to Caliri without charge were  services for which Caliri would otherwise have been required to  pay. Accordingly, Caliri's receipt of those free services was, in  each case, a privilege within the meaning of s.23.

22. The free services which Caliri received from  his School Department subordinates Broderick, Kilmurray, Pignatelli  and Callahan were of substantial value.[4]

23. The privilege of the free painting services that Caliri  requested and received from Pignatelli was unwarranted because it  was obtained from a subordinate who did not have a private  relationship with Caliri and/or a private motive, unrelated to his  subordinate-boss relationship with Caliri, significant enough to  have independently motivated the provision of the free services in  questions.[5] Under such circumstances, free services from a  subordinate public employee are not properly available to  individuals situated similarly to Caliri, i.e., other supervising  public employees or officials.[6]

24. Given that Caliri's private (off the job) relationship  with Pignatelli was too limited to have motivated Pignatelli to  help Caliri to the extent that he did, Caliri knew or had reason to  know that Pignatelli was providing him with those free services, at  least in substantial part, because Caliri was Pignatelli's School  Department boss. This was especially true because Pignatelli was in  a vulnerable and exploitable position as a temporary hourly worker,  had only a very limited pre-existing private relationship with  Caliri, and provided a large amount and value of free painting  services to Caliri. Accordingly, by requesting and receiving  Pignatelli's help with his new house, Caliri knowingly or with  reason to know used his official position to obtain his  subordinate's free services.

25. Therefore, by requesting and receiving Pignatelli's  uncompensated help with his new house, Caliri knowingly or with  reason to know used his official position to secure for himself a  substantially valuable unwarranted privilege which was not properly  available to similarly situated persons. In so doing, Caliri  violated G.L. c. 268A, s.23(b)(2).

26. 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, with knowledge of the  relevant circumstances, to conclude that any person can improperly  influence or unduly enjoy the employee's favor in the performance  of the employee's official duties, or that the employee is likely  to act or fail to act as a result of kinship, rank, position or  undue influence of any person or party. Section 23(b)(3) further  provides that the section is not violated if the employee "has  disclosed in writing to his appointing authority ... the facts  which would otherwise lead to such a conclusion."

27. By requesting and receiving the paid services of Steele  and Williams Coal & Oil, and by requesting and/ or receiving the  unpaid services of Broderick, Kilmurray, Pignatelli and Callahan in  connection with the construction of his new house in 1997 and by,  during the same period, in the case of the employees, assigning and

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supervising their work for the School Department, signing their  time sheets, approving their overtime and taking other actions  concerning their municipal employment, and, in the case of the  vendor, overseeing its work for the School Department, Caliri  knowingly or with reason to know, acted in a manner which would  cause a reasonable person, with knowledge of the relevant  circumstances, to conclude that Steele, Williams Coal & Oil,  Broderick, Kilmurray, Pignatelli and Callahan could unduly enjoy  Caliri's favor the or improperly influence Caliri in his  performance of his in official duties. In so acting, Caliri  violated G.L. c. 268A, s.23(b)(3). Caliri did not make the  disclosures to his appointing authority, the school  superintendent, required to avoid violating s.23(b)(3).[7]

28. Caliri's brother Wayne worked as a School to  Department custodian from 1986 until March 1999. From  January 1997, when Caliri was appointed as maintenance  director, until March 1999, Caliri supervised Wayne, who  also reported to the principal of the school to which he  was assigned. As part of his supervision of Wayne, Caliri  assigned work to Wayne and authorized his overtime. For example,  between March and December 1997, Caliri approved 469 hours of  overtime for Wayne, which was one of the highest overtime totals  among maintenance workers and custodians for that period. According  to Caliri, the reason Wayne received so much overtime in 1997 was  because Wayne was one of two custodians assigned to the recently  fire-damaged Donovan School and had the right of first refusal  under the applicable collective bargaining agreement for overtime  assignments at the school. Caliri's assignments of overtime hours  to Wayne were subject to the superintendent's review and approval.

29. Caliri's appointing authority, the superintendent, was  aware when he appointed Caliri to serve as maintenance director  that Caliri and Wayne were brothers and that Caliri would be  responsible for supervising Wayne. Caliri, however, did not at  anytime file a written disclosure to the superintendent that he was  supervising Wayne, approving Wayne's overtime and taking other  official actions concerning matters in which Wayne had in  financial interests. The superintendent, in turn, at no time  made a written determination that Wayne's financial interest was  not so substantial as to be deemed likely to affect the integrity  of the services which the town of Randolph may expect from Caliri  as maintenance director.

30. Section 19 of G.L. c. 268A prohibits a municipal employee  from participating[8] as such in a particular matter[9] in which to  his knowledge a member of his immediate family[10] has a financial  interest[11] except as permitted by paragraph (b) of that  section.[12]

31. Wayne, as Caliri's brother, is a member of Caliri's  immediate family.

32. In supervising Wayne as a School Department custodian,  Caliri, as maintenance director, participated in many particular  matters in which he knew at Wayne had a financial interest,  including, for example, Caliri's numerous decisions to authorize  Wayne's overtime work. In so doing, Caliri violated s. 19.

33. The fact that Caliri's appointing authority,  the superintendent, was aware that Caliri was supervising his  brother is not a defense to Caliri's violation of s. 19. the formal  disclosure and written determination requirements of the s.  19(b)(1) exemption are not mere technicalities. They protect the  public interest from potentially serious harm. As the Commission  has stated, "The steps of the disclosure and exemption procedure  ... are designed prevent an appointing authority from making an  uninformed, ill-advised or badly motivated decision." In re Hanlon,  1986 SEC 253, 255. Accordingly, the Commission requires that anyone  seeking exemption under 19(b)(1) from the prohibitions of s. 19  strictly comply with provisions of s. 19(b)(1). See In re Ling,  1990 SEC 456, 58-459. Furthermore, "the primary responsibility for  compliance with these provisions rests on the public employee  seeking the exemption." Hanlon, supra. The Superintendent's  knowledge is, however, a mitigating circumstance which the  Commission has considered in determining the amount of the fine  imposed for Caliri's violation of s. 19.Id.[13]

34. According to Caliri, he was not aware at the  me of his above-described conduct that his actions violated the  conflict of interest law, as he had, prior to becoming aware of the  Commission's investigation of this matter, never read G.L. c 268A  nor received any training concerning its requirements. Ignorance of  the law is, however, not a defense to a violation of the conflict  of interest law. In re Brewer, 1987 SEC 300, 3001 n. 1; see so  Scola v. Scola, 318 Mass. 1, 7 (1945).

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

(1) that Caliri pay to the Commission the sum of $4,000 as a  civil penalty for violating G.L. c. 268A, s.s. 19, 23(b)(2)  and 23(b)(3);

(2) that Caliri pay to the Commission the sum of $1,500 as a  civil forfeiture of the benefit he received by using his  position to secure the unwarranted privilege of free services  from his subordinate Pignatelli in violation of G.L. c. 268A,  and

(3) that Caliri waive all rights to contest the findings of  fact, conclusions of law and terms and conditions contained in  this Agreement in this or

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any other related administrative or judicial proceeding to which the Commission is or may be a party.

 [1] According to Caliri and Kilmurray, before Caliri's new  house was ready for painting, Kilmurray told Caliri that he and  Pignatelli could do the painting without charge. Thus, according to  Caliri, when the house was ready for painting and he asked his  subordinates for help, he was accepting that prior offer. The  Commission, however, finds the evidence on this point to be  contradictory and does not find that the offer was made prior to  Caliri's request for help as Caliri and Kilmurray state.   

[2] Kilmurray stated under oath that he agreed to help Caliri  because of their friendly relationship and because of the  opportunity his helping Caliri provided for his children to spend  several weekends at the beach. Kilmurray further stated under oath  that he felt he was adequately compensated for the work he  performed at Caliri's new house by his children's enjoyment of the  beach and by the Caliris' hospitality.   

[3] According to Caliri, he offered maintenance workers and  custodians an unusually large amount of overtime in 1997 because  the School Department had eight maintenance and custodial vacancies  at the time, and because the Donovan School suffered $700,000 in  damage in an April 1997 fire and needed extensive clean up and  repair work. According to Caliri, all overtime was offered and  assigned according to the applicable collective bargaining  agreement, and no grievances were filed concerning Caliri's  assignment of overtime in the is period.   

[4] The Commission construes substantial value to mean or  include any item or service with a value of $50 or more. In re  LIAM, 1997 SEC 879,890.   

[5] By contrast, Broderick's free services to Caliri were not  unwarranted privileges because they were independently motivated by  Broderick and Caliri's private relationship including, in  particular, the housing assistance that Caliri had provided to  Broderick, for which Broderick's services were reciprocation. Also  by contrast, Callahan's free services were not unwarranted because  they were sufficiently minor to be attributable to his friendly off  the job relationship with Caliri. Finally, while it is a close  question, Kilmurray's free services were not unwarranted because  they appear to have been attributable to his friendly off the job  relationship with Caliri and to the value to Kilmurray of having  his children spend several summer weekends at the beach while he  helped Caliri.   

[6] Public employees are prohibited by the conflict of  interest law from taking private advantage of the inherently  exploitable relationships they have with those persons whom they  supervise or regulate in their official positions. See In re  Corson, 1998 SEC 912; see also In re Shay, 1992 SEC 591.   

[7] The Commission, nevertheless, does not find that Caliri  was in fact unduly influenced in the performance of his official  duties as maintenance director by his private dealings with  Broderick, Kilmurray, Callahan or Pignatelli, or with Steele and  Williams Coal & Oil, nor is the Commission aware of any evidence  that the men or the company ever received any preferential  treatment from Caliri in the performance of his official duties.   

[8] "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. GL. c. 268A, s.10).   

[9] "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. GL. c. 268A, s.1(k).    

[10] "Immediate family" means the employee and his spouse, and  their parents, children, brothers and sisters. GL. 268A, s. 1(e).   

[11] "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, 345 N.E. 2d 888 (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. See EC-COI-84-96.   

[12] Section 19(b)(1) provides that conduct which would  otherwise be a violation of 19 "shall not be a violation ... if the  municipal employee first advises the official responsible for  appointment to his position of the nature and circumstances of the  particular matter and makes full disclosure of such financial  interest, and receives in advance a written determination made by  that official that the interest is not so substantial as to be  deemed likely to affect the integrity of the services which the  municipality may expect from the employee."   

[13] Further, the Commission is not aware of any evidence that  Wayne received preferential treatment from Caliri in the  performance of his official duties.