Docket No.: 183


IN THE MATTER OF OWEN McNAMARA


Appearing: Sally C. Reid, Esq,: Counsel for Petitioner State Ethics Commission Owen McNamara: pro se


Commissioners: Brickman, Burns, McLaughlin, Mulligan


Date: June 1, 1983



DECISION AND ORDER


Page 151


I. Procedural History


The Petitioner, State Ethics Commission (the Commission),
filed an Order to Show Cause on November 2, 1982, alleging that
Respondent Owen McNamara (Respondent) had violated Section 5 of
M.G.L. c. 2688, the financial disclosure law, by failing to file
a Statement of Financial Interests (Statement) within ten days
of his receipt of a Formal Notice of Delinquency. The Respondent filed
no Answer, and did not appear at an evidentiary hearing held on
January 24, 1989, before Joseph Mulligan, a member of the
Commission duly designated as presiding officer. See M.G.L. c.
2688, s.4(c). At that hearing, the Petitioner presented evidence
on the alleged violation and moved that a summary decision be
granted in favor of the Petitioner. That motion was referred to
the full Commission which heard Petitioner's argument in support
of the motion and allowed the motion on February 4,1983; Respondent
did not appear at that proceeding. In its written notice to the
Respondent of the decision in favor of the Petitioner, the
Commission stated its willingness to reconsider that decision, if
the Respondent came forth with additional evidence.

The Respondent, on March 9, 1983, wrote the Commission a
letter stating reasons why he felt he should not be found in
violation of the law. Because the letter was unsworn, the Presiding
Commissioner treated it as a request to reopen the hearing in this
matter, and ordered a hearing held on May 5,1983, for the
Respondent to present his evidence. See 930 CMR 1.01 (9)(n). The
Respondent appeared on that date and made a sworn statement for the
record; he also acknowledged that he had received notice of the
prior proceedings at which he had failed to appear. The parties
waived briefs and oral argument before the full Commission.

In rendering this decision and order, each of the four
participating members of the Commission has considered the evidence
presented by the parties.


II. Findings of Fact[1]


1. The Respondent, Owen McNamara, former acting superintendent
of North Central Correctional Center, a state facility, as
required by G.L. c. 2688, s.5 to file a Statement for calendar year
1981, on or before May 1, 1982.

2. The Respondent failed to file his Statement on or before
May 1, 1982.

3. Pursuant to G.L. c. 268B, s.3(f), the Respondent received
a written Formal Notice of Delinquency ("Notice") from the
Commission on May 19, 1982, requiring him to file a Statement
within ten days of receiving the Notice.

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

5. The Respondent received notice on June 21,1982, that the
Commission has initiated a preliminary inquiry with respect to him,
as authorized by G.L. c. 268B, s.4(a).

6. The Respondent's Statement was received by the Commission
on July 12, 1982.

7. As of the date of the hearing, the Respondent had not been
employed for the previous five months.


III. Decision


1. Jurisdiction

The parties agreed that the Respondent was, at all times
relevant, subject to the provisions of G.L. c. 268B, s.5 and that
the Commission was authorized to initiate and conduct adjudicatory
proceedings pursuant to that statute.

2. Chapter 268B Allegation

G.L. c. 2688, 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


Page 152

within ten days after receiving notice as provided in clause
(f) of section 9 of this chapter,[2] or the filing of an in
complete 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.

The elements necessary to establish a 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; (9) the subject did not file a
Statement within ten days of receiving notice.

Inasmuch as the Respondent admitted all the facts which
constitute a G.L. c. 268B, s.5 violation, the Commission concludes
that he violated G.L. c. 268B, s.5 by failing to file his 1981 SFI
within ten days of receiving a delinquency notice from the
Commission. With the violation established, the only issue left for
the Commission to address is the sanction to be imposed.


IV. Sanction


Under G.L. c. 268B, s.4(d), as amended by St. 1982, c. 612,
upon a finding ... that there has been a violation of chapter
268A or this chapter, [the Commission may] issue an order
requiring the violator to:

(1) cease and desist such violation [of c. 268B];

(2) file any report, statement or other information as
required by this chapter; or

(3) pay a civil penalty of not more than two thousand
dollars for each violation of this chapter.

Pursuant to this section, the Commission in 1980 adopted a policy
of levying civil fines on those who do not file timely statements
as required by G.L. c. 268B, calculated according to the stage of
legal proceedings reached by the time the statement is filed.[3]
Commission practice under that policy has been to levy a fine of
$250 when a statement is filed after a preliminary inquiry has been
initiated, but before the conclusion of the inquiry.

Of course, the Commission retains the discretion to adjust the
civil penalty in recognition of mitigating or aggravating
circumstances in individual cases. In previous G. L. c. 268B
decisions,[4] the Commission has enunciated certain mitigating
factors which would cause it to forego altogether the assessment
of a fine. Other Commission decisions have set forth reasons for
assessing a penalty lower than the statutory maximum.[5] In the
case at hand, the Commission does not find sufficient evidence in
the record to justify waiving a fine based on Respondent's mental
condition in May, 1982;[6] nevertheless, the Commission recognizes
that the Respondent has been unemployed for approximately five
months and his ability to pay a fine is hereby limited. For these
reasons, the Commission considers it appropriate to assess an
amount lower than the usual fine, and will exercise its discretion
to assess the Respondent a $100 civil penalty in this matter.


IV. Order


On the basis of the foregoing, the Commission concludes that
Owen McNamara violated G.L. c. 268B, s.5. Pursuant to the authority
granted it by G.L. c. 2680, s.4(d), the Commission hereby orders
Mr. McNamara to pay a civil penalty of $100 for such violation,
within thirty days of the issuance of this Decision and Order.

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

[1] These findings were all either admitted by the Respondent in
his sworn statement, or contained in exhibits which were introduced
into evidence at the hearing.

[2] "[The commission shall] inspect all statements of financial
interests filed with the commission in order to ascertain whether
any reporting person has failed to File such a statement or has
filed a deficient statement. If, upon inspection it is ascertained
that a reporting person has failed to file a statement of financial
interests, or if it is ascertained that any such statement filed
with the commission fails to conform with the requirements of
section five of this chapter, then the commission shall, in
writing, notify the delinquent; such notice shall state in detail
the deficiency and the penalties for failure to file a statement
of financial interests."

[3] Recently, the Commission amended that policy to calculate a
fine based on the number of days a statement is late. See, Minutes
of Commission Meeting. April 1, 1983. In the case at hand, however,
the Commission will adhere to the former policy, which was in
effect when the Order to Show Cause was Filed.

[4] See, e.g.. Decision and Order, In the Matter of Thomas A.
Chilik, Commission Adjudicatory Docket No. 182 (January 12, 1983):
Decision, In the Matter of Delabarre F. Sullivan, Commission
Adjudicatory Docket No. 176 (same date).

[5] See, e.g., Decision and Order, In the Matter of C. Joseph
Doyle. Commission Adjudicatory Docket No. 109 (June 18, 1980), p.
10; Decision and Order, In the Matter of Henry M. Doherty,
Commission Adjudicatory Docket No. 155 (November 18,1982), pp.
9-10.

[6] Compare, Decision, In the Matter of Delabarre F. Sullivan,
supra.

End Of Decision