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Settlement

Settlement In the Matter of Robert Calo

Date: 10/12/1994
Organization: State Ethics Commission
Docket Number: 504

Table of Contents

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into  between the State Ethics Commission ("Commission") and Robert Calo  ("Calo") 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 12, 1994, the Commission initiated, pursuant to G.L.  c. 268B, s.4(a), a preliminary inquiry into allegations that Calo  had violated the conflict of interest law, G.L. c. 268A. The  Commission has concluded its inquiry and, on September 27, 1994,  voted to find reasonable cause to believe that Calo violated G.L.  c. 268A, s.3.   

The Commission and Calo now agree to the following facts and  conclusions of law:   

1. At all times here relevant, Calo was employed by the  Massachusetts Highway Department ("MHD") as a civil engineer. As  such, Calo was a state employee as that term is defined in G.L. c.  268A, s.1.   

2. Middlesex Paving Corporation ("Middlesex") is a group of  affiliated companies doing business in Massachusetts. Middlesex  performs a variety of construction services including maintenance  and street paving. A substantial portion of Middlesex's business  consists of state contracts.   

3. As a MHD civil engineer, Calo was responsible for  supervising and inspecting work performed by state contractors,  including Middlesex.   

4. During 1992, Middlesex successfully bid for MHD contracts  valued at over $28 million. These contracts were awarded to  Middlesex as the lowest qualified bidder.   

5. On December 19, 1992, Middlesex hosted a Christmas party  at the Marriott Long Wharf Hotel in Boston. The explicit purpose  of the party was to foster goodwill with employees and individuals  doing business with Middlesex. The party included cocktails,  dinner, entertainment and overnight hotel accommodations for  certain guests.   

6. Calo and his wife attended the Middlesex party and stayed  overnight at the Marriott as Middlesex's guests. The cost to  Middlesex was approximately $170.   

7. Section 3(b) of G.L. c. 268A prohibits a state employee  from accepting anything of substantial value for or because of any  official act or act within his official responsibility performed or  to be performed by him. Anything with a value of $50 or more is of substantial value for s.3 purposes.[1]

8. By receiving $50 or more in entertainment and hotel  accommodations from Middlesex while, as a MHD civil engineer, he  was supervising Middlesex's contracts, and where he had been  involved in prior Middlesex contracts and was likely to be involved  in future Middlesex contracts, Calo received a gift of substantial  value for or because of acts within his official responsibility  performed or to be performed by him.[2] In so doing, Calo violated  G.L. c. 268A, s.3(b).[3]   

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9. The Commission is aware of no evidence that the  entertainment referenced above was provided to Calo with the intent  to influence any specific act by him as a MHD civil engineer or any  particular act within his official responsibility. The Commission is also aware of no evidence that Calo took any official action  concerning any Middlesex contracts in return for the gratuities.  However, even though the gratuities were only intended to foster official goodwill, they were still impermissible.[4][5]   

10. Calo fully cooperated with the Commission's investigation.   

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

(1) that Calo pay to the Commission the sum of three  hundred and forty dollars ($340.00) for violating G.L. c.  268A, s.3(b);[6]   

(2) that Calo will act in conformance with the requirements of G.L. c. 268A in his future conduct as a  state employee; and   

(3) that Calo 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] In the past, the Commission has considered entertainment expenses in the amount of $50 to constitute "substantial value".  P.E.L. 88-1. See Commission Advisory No. 8 (issued May 14, 1985).   

[2] For s.3 purposes, it is unnecessary to prove that any gratuities given were generated by some specific identifiable act  performed or to be performed. In other words, no specific quid pro quo corrupt intent need be shown. Rather, the gift may simply be an attempt to foster goodwill. It is sufficient that a public official, who was in a position to use his authority in a manner  that would affect the giver, received a gratuity to which he was  not legally entitled, regardless of whether that public official  ever actually exercised his authority in a manner that benefitted  the gift giver. See Commission Advisory No. 8. See also United  States v. Standerfer, 452 F. Supp. 1178, (W.D.P.A. 1978), aff'd  other grounds, 447 U.S. 10 (1980); United States v. Evans, 572 F.2d  455, 479-482 (5th Cir. 1978).   

[3] As the Commission stated in In re Michael, 1981 SEC 59, 68,   

A public employee need not be impelled to wrongdoing as  a result of receiving a gift or a gratuity of substantial  value in order for a violation of Section 3 to occur.  Rather, the gift may simply be an attempt to foster  goodwill. All that is required to bring Section 3 into  play is a nexus between the motivation for the gift and  the employee's public duties. If this connection exists,  the gift is prohibited. To allow otherwise would subject  public employees to a host of temptations which would  undermine the impartial performance of their duties, and  permit multiple remuneration for doing what employees are  already obligated to do -- a good job.   

[4] 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 Middlesex and Calo.   

[5] In a similar disposition agreement, Middlesex acknowledged  violating s.3(a) by providing the above entertainment to Calo, who  as a MHD civil engineer had and would perform official acts  regarding Middlesex's state contracts.

[6] Calo reimbursed Middlesex the cost of the gratuity after being  informed that his actions probably violated the conflict of  interest law. The $340 fine is two times the approximate value of  $170.00 in prohibited gratuities received by Calo in violation of  s.3.   

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