Scaccia v. State Ethics Comm'n

Page 824

727 N.E.2d 824 (Mass. 2000)

ANGELO M. SCACCIA, vs. STATE ETHICS COMMISSION.

No. SJC-08173

Supreme Judicial Court of Massachusetts,Suffolk County

Argued May 5, 2000.

Decided March 10, 2000.

Public Officer. State Ethics Commission. Statute, Construction. Bribery. Gratuity Statute. Gift Statute. Financial Disclosure Law. Conflict of Interest. Words, "Gift."

Civil action commenced in the Superior Court Department on December 17, 1996.

The case was heard by Herman J. Smith, Jr., J.

The Supreme Judicial Court granted an application for direct appellate review. [Copyrighted Material Omitted] Morris M. Goldings (Brenda A. Buan with him) for the plaintiff.

Judy A. Levenson (Stephanie S. Lovell, Special Assistant Attorney General, with her) for the defendant.

Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ.

IRELAND, J.

After an administrative hearing, the State Ethics Commission (commission) determined that State Representative Angelo M. Scaccia violated the gratuity statute, G. L. c. 268A, § 3 (b); the gift statute, G. L. c. 268B, § 6; the financial disclosure law, G. L. c. 268B, § 7; and the public officials' code of conduct statute, G. L. c. 268A, § 23 (b) (3), by accepting free meals and rounds of golf from tobacco and insurance industry lobbyists without disclosing them on his statement of financial interests. The commission imposed a civil fine of $3,000 and Scaccia appealed to Superior Court. After a Superior Court judge upheld the commission's decision, Scaccia again appealed, and we granted his application for direct appellate review. A violation of the gratuity statute, G. L. c. 268A, § 3 (b), requires that the gratuity must be received "for or because of any official act . . . performed or to be performed." Because the administrative record fails to establish a link to anyofficial act performed by Scaccia, we vacate that portion of the Superior Court decision regarding the gratuity statute. The record, however, clearly supports a finding that Scaccia violated the gift statute, the financial disclosure law, and the public officials' code of conduct statute, and we accordingly affirm those portions of the Superior Court judge's decision. In light of our decision, we remand the case to the Superior Court for a redetermination of the civil penalty owed by Scaccia.

1. Facts and procedural history. We state the facts as found by the commission. See Zora v. State Ethics Comm'n, 415 Mass. 640, 643 (1993). During the relevant time period, 1991-1993, Scaccia served as house chairman of the joint committee on taxation. In July, 1991, Scaccia, along with his wife and son, attended a conference of the Council of State Governments (CSG) in Hauppauge, New York. The CSG holds periodic conferences in order to bring elected officials and private sector representatives together so that they may discuss "common interests." Scaccia's campaign committee paid for many of his expenses related to the conference, including his transportation, accommodations, and $64.50 toward his meals.

On July 29, 1991, during the CSG conference, Theodore Lattanzio, a lobbyist for Philip Morris USA (Philip Morris), hosted a dinner for eleven people, including other tobacco industry lobbyists, elected officials, and their family members.¹ Scaccia, his wife, and his son attended the dinner, which was not a part of the CSG conference. Lattanzio paid for the dinner, of which $176 was attributable to Scaccia and his family.² On July 30, 1991, also at the CSG conference, Lattanzio invited a group of lobbyists and elected officials on an outing to play golf, and Scaccia and his son participated. Lattanzio paid for Scaccia and his son's golf fees, which totaled $112. Lattanzio was not a friend of Scaccia and thus he did not pay for either the dinner or the golf out of friendship.

In March, 1993, Scaccia, along with his son, attended a National Conference of Insurance Legislators (NCOIL) conference held on Amelia Island in Florida. On March 11, 1993, Scaccia played golf with two other State representatives, Representatives Thomas Walsh and William Cass and F. William Sawyer, a lobbyist for John Hancock Mutual Life Insurance Company (John Hancock). Sawyer paid for the golf, $90 of which was attributable to Scaccia.³ The next day, March 12, 1993, Scaccia, his son, State Representatives Kevin Honan and Cass, and Sawyer played golf. Sawyer paid for Scaccia's golf, valued at $103. Sawyer and Scaccia were not personal friends.

That same day, March 12, 1993, Sawyer drove Scaccia, his son, Cass, and Walsh to the Ritz-Carlton Hotel. Scaccia and his son ate dinner at The Grill, the restaurant at the Ritz-Carlton, along with other Massachusetts State Representatives, William Carroll, lobbyist for the Life Insurance Association of Massachusetts, Inc. (LIAM), and several other insurance industry lobbyists. Scaccia had been told that the Ritz-Carlton dinner was sponsored by Carroll and other lobbyists; the dinner was not a part of the NCOIL conference. Carroll paid for the dinner and Scaccia and his son's share amounted to $118.⁴ In total, the commission found that Scaccia and his family received nearly $600 in free meals and golf from lobbyists in the period from 1991 to 1993.

As a State representative, Scaccia voted on and took other official action on proposed legislation relating to the tobacco and insurance industries. As chairman of the joint committee on taxation, Scaccia had an extensive role in scheduling hearings and in the committee's decisions to advance bills to the full General Court.

On June 20, 1995, the commission issued an order to show cause against Scaccia. After an administrative hearing, during which Scaccia invoked his privilege under the Fifth Amendment to the United States Constitution against self-incrimination, the commission determined that Scaccia had violated the gratuity, public officials' code of conduct, gift, and financial disclosure laws and imposed a $3,000 civil penalty. A Superior Court judge upheld the decision of the commission, Scaccia appealed and we granted his application for direct appellate review.

2. G. L. c. 268A, § 3 (b).The gratuity statute, defined in G. L. c. 268A, § 3 (a), as to the giver, and § 3 (b) as to the recipient, requires that something of "substantial value" be given, offered, or promised to a public official "for or because of any official act performed or to be performed" by such public official; or demanded, sought, received, accepted, or agreed to be received by a public official "for or because of any official act or act within his official responsibility performed or to be performed" by such public official. Scaccia argues that the commission failed to prove a link between the free meals and golf the lobbyists provided and any official act undertaken by him.

While the commission's considerable expertise regarding the gratuity statute is entitled to some deference, interpretation of the statute is ultimately a question of law reserved for our determination. See Finkelstein v. Board of Registration in Optometry, 370 Mass. 476, 478 (1976). Although G. L. c. 268A, § 3, inserted by St. 1962, c. 779, § 1, was enacted into law before the Federal gratuity statute, it is very similar to the Federal statute. See, e.g., Report of the Special Commission on Code of Ethics, 1962 House Doc. No. 3650; R. Braucher, Conflict of Interest in Massachusetts, in Perspectives of Law, Essays for Austin Wakeman Scott 7 (R. Pound, E. Griswold, A. Sutherland eds. 1964) ("the basic pattern of the recommended legislation followed that of H.R. 8140"); Buss, The Massachusetts Conflict-of-Interest Statute: An Analysis, 45 B.U.L. Rev. 299, 302-303 (1965); United States v. Sawyer, 85 F.3d 713, 736 (1st Cir. 1996). Indeed, the language of the two statutes is virtually identical.

In light of the similarity between the Massachusetts and Federal statutes, as well as the legislative history of the Massachusetts statute, we look to Federal law for guidance in construing § 3 (a) and (b).⁵ See Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990); Packaging Indust. Group, Inc. v. Cheney, 380 Mass. 609, 611 (1980) (when Massachusetts statute adopts language of Federal statute, it is ordinarily given same construction as cognate Federal statute).

Recently, the United States Supreme Court, interpreting the Federal gratuity statute (18 U.S.C. § 201[c][1][A] [1994]), ruled that the government must "prove a link between a thing of value conferred upon a public official and a specific 'official act' for or because of which it was given." United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 414 (1999) (Sun-Diamond).⁶ In a unanimous opinion, the United States Supreme Court reasoned that the "insistence upon an 'official act,' carefully defined, seems pregnant with the requirement that some particular official act be identified and proved." Id. at 406. The United States Supreme Court emphasized that "it seems to us most implausible that Congress intended the language of the gratuity statute . . . to pertain to the office rather than (as the language more naturally suggests) to particular official acts" (emphasis original). Id. at 409.⁷

In light of Sun-Diamond, it is necessary to establish a link between a gratuity and an official act. We therefore must give content to the "for or because of any official act" portion of the statute. Chapter 268A is a comprehensive measure designed to prevent the improper use of influence on public officials. See Commonwealth v. Canon, 373 Mass. 494, 503 (1977), cert. denied, 435 U.S. 933 (1978) (Liacos, J., dissenting). A gratuity violation is, essentially, a lesser included offense of bribery. Under G. L. c. 268A, § 2 (a) and § 2 (b), bribery requires proof of "corrupt intent," an element missing from the gratuity statute. Commonwealth v. Dutney, 4 Mass. App. Ct. 363, 369 (1976). Bribery also typically involves a quid-pro-quo, in which the giver corruptly...