Docket No.: 215


IN THE MATTER OF TERRENCE J. McGEE


Appearing: David J. Burns, Esq.: Counsel for Petitioner State Ethics Commission


Commissioners: Diver, Ch.; Brickman, Burns, McLaughlin, Mulligan


Date: January 13, 1984



DECISION AND ORDER


Page 167


I. Procedural History


The Petitioner filed an Order to Show Cause on August 30, 1983
alleging that the Respondent, Terrence J. McGee, had violated M.G.L.
c. 268B, s.5[1] by failing to file his Statement of Financial
Interests for 1982 (Statement) within ten days of receiving from
the Commission a Formal Notice of Delinquency. The Respondent did
not file an Answer to the Order to Show Cause, the Petitioner filed
a Motion for Summary Decision on October 14, 1983. 930 CMR
1.01(6)(f).

Pursuant to notice served on the Respondent in hand on October
28,1983, a hearing on the Motion was conducted on November 14,1983
before Commissioner Bernard P. McLaughlin, a duly designated
presiding officer. See, M.G.L. c. 268B, s.4(c). David J. Burns,
Esq., appeared on behalf of the Petitioner. No appearance was made
on the Respondent's behalf. In rendering this Decision and Order,
each participating member of the Commission has considered the
evidence and arguments presented by the parties.


II. Findings of Fact


1. The Respondent, Terrence J. McGee, was a Systems Analyst in
the Office of the Chief Administrative Justice of the trial Court
for the Commonwealth of Massachusetts from March, 1981 until
October, 1982.

2. In December, 1982, the Respondent was designated by the Chief
Administrative Justice of the Trial Court as a person in a "major
policymaking position"[2] for the year 1982. As a result, he was
a "public employee" as defined in M.G.L. c. 268B, s.1(o)[3] and was
required to file a Statement for 1982 on or before May 1,
1983.

3. The Respondent failed to file his 1982 Statement by May 1,
1983.

4. On May 11, 1983, the Respondent received from the Commission
a Formal Notice of Delinquency (Notice) requiring him to file his
Statement within ten days of receipt of the Notice.

5. The Respondent failed to file his 1982 Statement within ten
days of receipt of the Notice.

6. The Commission initiated a preliminary inquiry on June 23,
1983 pursuant to the Respondent's failure to file his 1982
Statement and thereafter authorized the initiation of adjudicatory
proceedings.

7. Respondent has not filed his 1982 Statement or formally
answered this action by the Commission.


III. Decision


The evidence demonstrates that the Respondent received notice
of his obligation to file a Statement for 1982, and that he
received the Formal Notice of Delinquency. He did not file a
Statement within ten days of receiving that Notice, and as of the
date of the hearing, had not filed such a Statement. Therefore, the
Respondent violated M.G.L. c. 268B, s.5.

Page 168


IV. Sanction


The Commission, upon finding that there has been a violation
of M.G.L. c. 268B, may issue an order requiring the violator to
(1) cease and desist such violation; (2) file any statement or
other information required by M.G.L. c. 268B; or (3) pay a civil
penalty of not more than $2000 for each violation. M.G.L. c.
268B, s.4(d). In the only other case in which a Respondent failed
to file a Statement and to formally Answer the Commission's
proceeding, a penalty of $1000 was imposed.[4] A similar penalty
is appropriate in this case. The Respondent has disregarded his
statutory obligation to file a Statement for 1982. The record in
this case contains no evidence of mitigating circumstances.


V. Order


The Petitioner's Motion for Summary Decision is granted. The
Respondent, Terrence J. McGee, is ordered to:

1. File a statement for 1982 within seven (7) days of receipt
of this Decision and Order; and

2. Pay a civil penalty of one thousand dollars ($1,000.00) to
the Commission within thirty (30) days of receipt of this
Decision and Order.


---------------

[1] G.L. c. 268B, s.5 states in relevant part:

(c) Every public employee shall file a statement of financial
interests for the preceding calendar year with the commission
within ten days after becoming a public employee, on or before
May first of each year thereafter that such person is a public
employee and on or before May first of the year after such person
ceases to be a public employee..

Failure of a reporting person to file a statement of financial
interests within ten days after receiving notice as provided in
clause (f) of section 3 of this chapter, or the filing of an
incomplete statement of financial interests after receipt of such
a notice, is a violation of this chapter and the commission may
initiate appropriate proceedings pursuant to the provisions of
section 4 of this chapter.

[2] For the purposes of M.G.L. c. 268B, 930 CMR 2.02(12) defines
major policy making position(s) as:

a) the executive or administrative head or heads of a
governmental body;

b) all members of the judiciary;

c) any person whose salary equals or exceeds that of a state
employee classified in step one of job group XXV of the general
salary schedule contained in Massachusetts General Laws c. 30,
s.46 and who reports directly to said executive or administrative
head;

d) the head of each division, bureau or other major
administrative unit within such governmental body; and

e) persons exercising similar authority.
[3] For the purposes of M.G.L. c. 268B, "public employee" is
defined as "any person who holds a major policymaking position in
a governmental body; provided, however, that any person who
receives no compensation other than reimbursements for expenses,
or any person serving on a governmental body that has no
authority to expend public funds other than to approve
reimbursements for expenses shall not be considered a public
employee for the purposes of this chapter; provided, however,
that the members of the board of bar examiners shall not be
considered public employees for the purposes of this chapter."
M.G.L. c. 268B. s.1(o).

[4] See In the Matter of Allison Goodsell, 1981 Ethics Commission
38.

End Of Decision