Settlement  In the Matter of Stephen Berlucchi

Date:	10/12/1994
Organization:	State Ethics Commission
Docket Number:	502

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Stephen
Berlucchi ("Berlucchi") 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
Berlucchi 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 Berlucchi
violated G.L. c. 268A, s.3.

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

Findings of Fact

1. At all times here relevant, Berlucchi was employed by the
Massachusetts Highway Department ("MHD") as the highway maintenance
engineer.[1] As such, Berlucchi 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.

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3. As the MHD highway maintenance engineer, Berlucchi was
responsible for supervising and inspecting all maintenance work on
state highways performed by state contractors, including Middlesex.

4. During 1990, Middlesex successfully bid for MHD contracts
valued at over $5 million. These contracts were awarded to
Middlesex as the lowest qualified bidder.

5. On December 22, 1990, 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. Berlucchi attended the Middlesex party and stayed
overnight at the Marriott as Middlesex's guest. The cost to
Middlesex was approximately $116.

7. During 1991, Middlesex successfully bid for MHD contracts
valued at over $4 million. These contracts were awarded to
Middlesex as the lowest qualified bidder.

8. On December 21, 1991, 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.

9. Berlucchi attended the Middlesex party and stayed
overnight at the Marriott as Middlesex's guest. The cost to
Middlesex was approximately $116.

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

11. 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.

12. Berlucchi and his wife attended the 1992 Middlesex party.
The cost to Middlesex was approximately $108.

Conclusions of Law

13. 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.[2]

14. By receiving $50 or more in entertainment and hotel
accommodations from Middlesex while, as the MHD highway maintenance
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, Berlucchi received gifts of
substantial value for or because of acts within his official
responsibility performed or to be performed by him.[3] In so
doing, Berlucchi violated G.L. c. 268A, s.3(b).[4]

15. The Commission is aware of no evidence that the
entertainment referenced above was provided to Berlucchi 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 Berlucchi 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.[5][6]

16. Berlucchi fully cooperated with the Commission's
investigation.

Resolution

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

(1) that Berlucchi pay to the Commission the sum of nine
hundred and fifty dollars ($950.00) for violating G.L. c.
268A, s.3(b);[7] and

(2) that Berlucchi 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] Berlucchi left state employment in 1993.

[2] 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).

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[3] 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).

[4] 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.

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

[7] Berlucchi reimbursed Middlesex $54 for the cost of his dinner
at the 1992 party after being informed that his actions probably
violated the conflict of interest law. He did not reimburse
Middlesex for the cost of his wife's dinner at the 1992 party, nor
did he reimburse Middlesex for the 1990 or 1991 gratuities. The
$950 fine is three times the approximate value of $340 in
prohibited gratuities (minus the $54 reimbursement) received by
Berlucchi in violation of s.3.

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