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Settlement

Settlement In the Matter of Walter Brewer

Date: 08/28/1987
Organization: State Ethics Commission
Docket Number: 338

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Walter Brewer (Mr. Brewer) 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 September 15,1986, the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, involving Mr. Brewer, a supply officer for the Massachusetts Civil Defense Agency (CDA). The Commission concluded its inquiry and, on March 16,1987, found reasonable cause to believe that Mr. Brewer violated G.L. c. 268A, s.6.

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

1. Mr. Brewer is a supply officer for the CDA. As such, he is a "state employee," as that term is defined in G.L. c. 268A, s.1(q).

2. As supply officer for the CDA, Mr. Brewer is responsible for the maintenance and repair of 31 CDA vehicles. Out of 31 CDA vehicles for which Mr. Brewer is responsible, 15 are owned by the CDA, and 16 are owned by Motor Vehicle Management (MVM) and leased to CDA.

3. The procedure that Mr. Brewer follows for choosing a vendor to repair a vehicle varies depending upon whether the vehicle is a CDA-owned car or an MVM (but leased to CDA) car.

4. CDA vehicles are generally on the road 24 hours a day. If, while on the road, a CDA driver has a problem with his vehicle, he radios Mr. Brewer.

5. Mr. Brewer does not need anyone's approval to choose the vendor to whom he sends CDA-owned vehicles for repair. When the CDA-owned car is in the general area of J&J Automotive in Southboro, MA (J&J), Mr. Brewer assigns it to J&J.

6. If the problem vehicle is owned by MVM (but has been assigned to CDA), Mr. Brewer telephones MVM for assignment approval.

7. When Mr. Brewer calls MVM seeking vehicle repair approval, he is asked where he wants to send the vehicle. If the car is in the general area of J&J, Mr. Brewer recommends assigning it to J&J.

8. In July, 1984 Brewer's son became 50 percent owner of J&J.

9. In November of 1984, J&J as a result of competitive bidding, became a contract vendor for repairs of state vehicles through the Motor Vehicle Management Bureau; unrelated to any authority in Mr. Brewer.

10. J&J Automotive was thereafter utilized by various agencies such as CDA, MVM, Registry of Motor Vehicles, Water Resources Authority and Board of Education.

11. On 45 occasions between January 30,1985 and February 27, 1987, Mr. Brewer selected J&J to repair CDA-owned vehicles. The total of J&J approved payments for the period is $5,125.45.

12. Between March 31, 1985 and November 24, 1986, Mr. Brewer recommended J&J to do work on 65 MVM vehicles. The total amount paid J&J by MVM for the period is $3,851.68.

13. The records show that the first CDA payment to J&J for the repair of a CDA-owned vehicle was made on January 30,1985. The first recorded payment to J&J for an MVM vehicle occurred on March 21,1985.

14. Section 6 of G.L. c. 268A provides in part that except as otherwise permitted in s.6 a state employee may not participate as such in a particular matter in which to his knowledge he or a member of his immediate family has a financial interest.

15. The decision or recommendation as to where to send a vehicle for repairs is a particular matter. As set forth in paragraphs 5 through 11 above, Mr. Brewer participated as a CDA supply officer in such particular matters by sending CDA-owned vehicles to J&J and by recommending that MVM vehicles be sent to J&J. As a 50 percent owner of J&J, Mr. Brewer's son had a financial interest in repairing the CDA and MVM vehicles as identified above. Finally, Mr. Brewer knew when he so participated that his son had a financial interest in each such decision or recommendation. Therefore, by this conduct Mr. Brewer violated s.6.

16. The Commission has no evidence to suggest that Mr. Brewer was aware that his actions violated G.L. c. 268A when he sent cars to J&J.[1] In addition, the Commission, in resolving this matter, takes note of the CDA Director's statements that based on his dealings with J&J he believes that J&J provided CDA with very good work at fair prices.[2]

Page 301

In view of the foregoing violations of G.L. c. 268A, s.6, 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. Brewer:

1. that he pay to the Commission the amount of two thousand dollars ($2,000) as a civil penalty for his course of conduct in violation of s.6;

2. that so long as he is a state employee, he refrain from participating in any particular matter in which any member of his immediate family has a financial interest; and

3. that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions proposed under this Agreement in this or any related administrative or judicial civil proceedings in which the Commission is a party.

[1] Ignorance of the law is no defense to a violation of G.L. c. 268A. In the matter of C. Joseph Doyle. 1980 SEC 11, 13. See also, Scola v. Scola, 318 Mass. 1, 7, (1945).

[2] There is no need to prove actual harm to the state or an undeserved benefit to a private party to establish a conflict of interest under s.6. Section 6 is intended to prevent any questions arising as to whether the public interest has been served with the single minded devotion required of a public employee. See, In the matter of Mary V. Kurkjian, 1986 SEC 303.

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