Docket No.: 219


IN THE MATTER OF JOSEPH C. McGINN


Appearing: Sally C. Reid, Esq.: Counsel for Petitioner, State Ethics
Commission; Joseph C. McGinn: pro se


Commissioners: Brickman, Burns, McLaughlin, Mulligan


Date: December 21, 1983



DECISION AND ORDER



I. Procedural History


The Petitioner filed an Order to Show Cause on September
6,1983, alleging that the Respondent, Joseph C. McGinn, had
violated M.G.L, c. 268B, s.5[1] by failing to file his
Statement
of Financial

Page 164

Interest for 1982 (Statement) within ten days of receiving from the
Commission a Formal Notice of Delinquency.

Pursuant to notice, an adjudicatory hearing was conducted on
November 3, 1983 before Commissioner Joseph I. Mulligan, a duly
designated presiding officer. See, M.G.L. c. 268B, s.4(c). The
parties waived the filing of post-hearing briefs and oral argument
before the full Commission. 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, Joseph C. McGinn, was a District Attorney
for Worcester County from March, 1981 until December, 1982.

2. In November, 1982 the Respondent was designated by the
District Attorney for the Middle District as a person in a "major
policy-making position"[2] for the year 1982 and was required to
file a Statement for 1982 on or before May 1,1983.

4. On May 10,1983, 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. The Respondent filed his 1982 Statement on July 7,1983, 30
days after the expiration of the ten-day period contained in the
Notice.

8. The Respondent admitted receiving the Commission's Notice
but did not offer a reason for failing to file his 1982 Statement
as required.


III. Decision


The failure of a reporting person to file a Statement within
ten days after receiving a notice of delinquency constitutes a
violation of M.G.L. c. 268B, s. 5. The elements necessary to
establish a M.G.L. c. 268B, s. 5 violation are that: (1) the subject
was a public employee (as defined by the statute) during the year
in question; (2) the subject was notified in writing of his
delinquency and the possible penalties for failure to file a
statement; (3) the subject did not file a statement within ten days
of receiving notice. Inasmuch as the Respondent conceded at the
adjudicatory hearing that he failed to file his 1982 Statement
within ten days of receiving the Commission's Notice, the
Commission concludes that the Respondent violated M.G.L. c. 268B
s. 5.


SANCTION


Under M.G.L. c. 268B, s.4(d), the Commission may order an
individual who violates M.G.L. c. 268B to pay a civil penalty of
not more than $2,000.00 for each violation. In cases involving
Statements which are filed late, the Commission imposes a fine
based solely on the number of days which elapse after the
expiration of the 10-day period following the Commission's
Notice.[3] While the Commission does retain the discretion to
adjust a civil penalty in recognition of mitigating circumstances,
none of the factors warranting mitigation are present in this
case.[4] In particular, the Respondent did not demonstrate a
serious, good faith effort to comply as expeditiously and fully as
possible after being put on notice of the filing requirement.
Compare, In the Matter of David Kopelman, 1983 Ethics Commission
124.


IV. Order


On the basis of the foregoing, the Commission concludes that
Joseph C. McGinn violated M.G.L. c. 268B, s.5. Pursuant to the
authority granted it by M.G.L. c. 268B, s.4(d), the Commission
hereby orders Mr. McGinn to pay a civil penalty of $500.00.[5]

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[1] M.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...

(g) 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 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] On April 12, 1983, the Commission adopted a schedule for the
imposition of civil penalties on those who fail to file timely
Statements within ten days after receipt of a Notice. The schedule
calls for a daily fine of $10.00 per day for the first 10 working
days and $20.00 per working day thereafter.

[4] The Respondent asserts that the resulting fine in this matter
is too severe for the violation involved. In essence, he argues
that his violation of M.G.L. c. 268B, s.5 is procedural in nature
rather than substantive, and that he therefore, is entitled to a
fine lesser in degree than one which might imposed for a violation
of M.G.L. c. 268A. The Commission concludes that this type of
distinction is irrelevant.

[5] The Respondent had demonstrated that full payment of this fine
in a single transaction would impose financial hardship on him
because he is in the process of establishing a private law
practice. Accordingly, the Commission will allow the Respondent to
make five monthly payments of $100.00 each to commence 30 days
after he is notified of this Decision and Order and to continue
every 30 days thereafter until the fine is paid in full. This type
of Decision is in keeping with a prior Decision and Order where
financial hardship was demonstrated. Compare, In the Matter of
Thomas Chilik. 1983 Ethics Commission 130.

End Of Decision