Settlement  In the Matter of Walter Tortorici

Date:	10/30/2007
Organization:	State Ethics Commission
Docket Number:	07-0031

Disposition Agreement

This Disposition Agreement is entered into between the State Ethics Commission and Walter Tortorici pursuant to Section 5 of the Commission's Enforcement Procedures. This Agreement constitutes a consented-to final order enforceable in Superior Court, pursuant to G.L. c. 268B, s. 4(j).

On March 14, 2007, 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 Tortorici. The Commission has concluded its inquiry and, on September 21, 2007, found reasonable cause to believe that Tortorici violated G.L. c. 268A.

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

Findings of Fact

1. Tortorici was named part-time Medfield Building Inspector in February 2005.

2. In his private capacity, Tortorici is a Medfield-based builder specializing in residential remodeling and additions. He currently does business as Design Builders of Medfield and as G.T. Builders.

3. Tortorici pulled 13 permits in Medfield on behalf of his private customers between February 2005 and December 2006. Tortorici was compensated for the work performed in connection with these permits.[1]

4. Tortorici did not participate as building inspector in matters involving permits he pulled.

Conclusions of Law

5. As the Medfield building inspector, Tortorici was a municipal employee as that term is defined in G.L. c. 268A, s. 1(g).

Section 17(c)

6. Section 17(c) of G.L. c. 268A prohibits a municipal employee, otherwise than in the proper discharge of official duties, from acting as agent for anyone other than the municipality in connection with a particular matter in which the town is a party or has a direct and substantial interest.

7. A building permit application, the decision to issue a building permit and the inspection of work pursuant to a building permit, are particular matters.

8. Where the town issues the building permit, it is a party to and has a direct and substantial interest in the permit and the work and inspections done pursuant to the permit.

9. Tortorici acted as agent for persons other than the town by applying for or "pulling" 13 building permits on behalf of his private customers. In so doing, Tortorici acted as agent for persons other than the town in connection with the building permit applications which were particular matters in which the town was a party and had a direct and substantial interest.

10. Tortorici's acts of agency in pulling permits for his private clients were not within the proper discharge of his official duties as building inspector.

11. Therefore, Tortorici violated s. 17(c) each time he pulled a building permit for his private clients.

Section 17(a)

12. Section 17(a) of G.L. c. 268A prohibits a municipal employee, otherwise than as provided by law for the proper discharge of official duties, from directly or indirectly receiving or requesting compensation from anyone other than the municipality in relation to a particular matter in which the municipality has a direct and substantial interest.

13. A building permit application, the decision to issue a building permit and the inspection of work pursuant to a building permit, are particular matters.

14. Tortorici was privately paid by his customers in connection with these particular matters.

15. Tortorici's receipt of private compensation in connection with these particular matters was not as provided by law for the proper discharge of official duties.

16. Therefore, Tortorici violated s. 17(a).

Resolution

In view of the foregoing violation of G.L. c. 268A by Tortorici, 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 Tortorici:

(1) that Tortorici pay to the Commission the sum of $2,000.00 as a civil penalty for violating G.L. c. 268A, s.17(a) and (c); and

(2) that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this Agreement in this or any other related administrative or judicial proceedings to which the Commission is or may be a party.

[1] Under 780 CMR (Commonwealth of Massachusetts State Building Code) s. 105.6, part-time building inspectors are prohibited from doing private construction work on projects within their jurisdiction. City and town governments, however, can pass a local option law, G.L. c. 143, s. 3Z, which enables building inspectors to do private construction work in their jurisdictions under certain conditions. Chapter 143 requires that inspectors have their private work inspected by an inspector from another town or by a special assistant appointed solely for the purpose of performing such inspections. On April 30, 2007, Medfield adopted the chapter 143, s. 3Z exemption.