Settlement  In the Matter of Wolfgang Bauer

Date:	01/24/1996
Organization:	State Ethics Commission
Docket Number:	538

Disposition Agreement

The State Ethics Commission ("Commission") and Wolfgang Bauer
("Bauer") enter into this Disposition Agreement ("Agreement")
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 March 30, 1994, the Commission initiated, pursuant to G.L.
c. 268B, s.4(j), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A, by Bauer. The
Commission has concluded its inquiry and, on April 11, 1995, found
reasonable cause to believe that Bauer violated G.L. c. 268A, s.3.

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

Findings of Fact

1. Bauer is the Franklin town administrator. As town
administrator, Bauer is the chief executive officer of the town and
is responsible for the effective administration of all town affairs
placed in his charge by or under the town charter.[1]

2. As town administrator, Bauer occasionally participates in
matters concerning private construction projects in town. For
example, Bauer occasionally attends meetings of and makes
recommendations to the zoning board of appeals, the planning board
and the conservation commission. He is involved in matters
concerning zoning bylaw enforcement, bond posting, the setting of
commercial developers fees and establishing development conditions
(such as betterments, sidewalks, traffic studies, etc.). Bauer
also appoints, subject to the consent of the City Council, and has
the ability to terminate the building inspector and other major
town officials.

3. During the relevant period, Patrick Marguerite
("Marguerite") and Francis Molla ("Molla") were builders/developers
each independently involved in various private construction
projects in the Town of Franklin. Marguerite and Molla had
completed projects, had pending projects and expected to have
additional projects in Franklin. In connection with these
projects, they each have had matters before the building
department, the planning board and the conservation commission. In
furtherance of these projects, both Marguerite and Molla have had
dealings with various town officials including Bauer as town
administrator.

4. At all times here relevant, Marguerite, Molla and/or
their families owned an apartment building in Franklin called the
Union Square Apartments.

5. In February 1992, Bauer was looking for an inexpensive
apartment to rent until his divorce was resolved, as he was living
out of a hotel room. The Union Square Apartments had many vacancies.

6. Bauer, Marguerite and Molla entered into an oral
agreement that allowed Bauer to rent one of the vacant Union Square
two bedroom apartments at a reduced rent ("the apartment"). Bauer,
Marguerite and Molla testified that they agreed that Bauer could
rent the apartment at the reduced rate until Molla and Marguerite
could rent the apartment at the prevailing market rate, at which
time Bauer would either have to leave or pay the full rent.

7. Union Square two bedroom apartments rented for $500 and
up per month. There were no set rental values for all two bedroom
apartments, as the

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apartments were assigned rental values based upon their distance
from the end of the building; farthest away from the railroad
tracks had a higher rent, and those next to the railroad tracks had
a lower rent. Molla, or his agent, selected the apartment
that Bauer would occupy based on the existing vacancies. Bauer and
Molla testified that Bauer paid $200 rent each month for the
apartment he occupied. There were always vacancies during Bauer's
occupancy.

8. Bauer rented the apartment under this arrangement from
February 1992 until September 1994 (31 months),[2] when Marguerite
and Molla transferred ownership of the apartment building to a bank
in lieu of foreclosure.

Conclusions of Law

9. Section 3(b) of G.L. c. 268A prohibits a municipal
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.

10. Anything with a value of $50 or more is of substantial
value for s.3 purposes.[3]

11. The above-described reduced rent rate was of substantial
value each month.

12. By accepting a reduced rental rate each month while he
then was, recently had been and/or soon would be in a position to
take official action concerning Marguerite's and Molla's projects
in town,[4] Bauer accepted an item of substantial value for or
because of official acts or acts within his official responsibility
performed or to be performed by him. In doing so he violated G.L.
c. 268A, s.3(b) each month.[5]

13. The Commission is aware of no evidence that the rental
arrangement referenced above was provided to Bauer with the intent
to influence any specific act by him as town administrator. The
Commission is also aware of no evidence that Bauer took any
official action concerning any of Marguerite's or Molla's projects
in return for the gratuities. However, even though the gratuities
were only intended to foster official goodwill, they were still
impermissible.[6,7,8]

14. Bauer fully cooperated with the Commission's
investigation.

Resolution

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

(1) that Bauer pay to the Commission the sum of ten thousand
dollars ($10,000) as a civil penalty for his course of conduct
in violation G.L. c. 268A, s.3[9]; and

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

[1] The town administrator administers and implements the
directives and policies adopted by the town council. The
administrator attends all council meetings and has the right to
speak but not vote, makes recommendations to the council, prepares
the town budget, serves as ombudsman and performs any duties
required by the charter, bylaw or order of the council. The
administrator, with the approval of the council, may establish,
reorganize or consolidate any department, board, commission or
office under his jurisdiction. Additionally, subject to
ratification by the council, the administrator's appointments
include police and fire chiefs, zoning board of appeals members and
redevelopment authority members.

[2] Bauer's divorce proceedings continued until September 8,
1993.

[3] See Commonwealth v. Famigletti, 4 Mass App. 584 (1976).

[4] 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. Standefer, 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).

[5] 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.

[6] As discussed above in footnote 4, 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 Bauer and Marguerite and/or Molla.

[7] In separate disposition agreements, Marguerite and Molla
acknowledge violating s.3(a) by entering into the above reduced
rental arrangement with Bauer.

[8] There may have been a "mixed motive" in Marguerite and
Molla giving and Bauer accepting the reduced rate apartment. In
other words, Marguerite and Molla may have given Bauer the reduced
rate for these reasons: (1) to foster official goodwill with Bauer
as town administrator; (2) to generate income from an otherwise
vacant apartment, and (3) to assist Bauer while he was going
through his divorce.

This "mixed motive" contention is not a defense. Where a
public employee was, recently had been, and/or soon would be in a
position to take official action concerning matters affecting a
party's interests, the party's gift of something of substantial
value to the public employee and the employee's receipt thereof
violates s.3, even if there were additional reasons for the offer
and receipt of the gift, unless the evidence establishes that these
other reasons constitute the complete motive for the gift. See
Advisory No. 8. See also In re Flaherty, 1990 SEC 498.

[9] The fine takes into consideration the economic benefit
Bauer received by virtue of the reduced rent arrangement.

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