Docket No.: 233


IN THE MATTER OF SEAN G. MULLIN


Appearing:

Marilyn L. O'Connell, Esq.: Counsel for
Petitioner State Ethics Commission
Sean G. Mullin: pro se


Commissioners:

Diver, Ch.; McLaughlin Brickman, Burns


Date: January 13, 1984



DECISION AND ORDER


I. Procedural History


The Petitioner filed an Order to Show Cause on September
27,1983 alleging that the Respondent, Sean G. Mullin, 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.

Pursuant to notice, an adjudicatory hearing was conducted on
November 15,1983 before Commissioner David Brickman, a duly
designated presiding officer. See, M.G.L. c. 268B, s.4(c). The
parties waived their right to present oral arguments before the
full Commission and the Petitioner submitted a brief in support of
its position. The Respondent did not file a brief. 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, Sean G. Mullin, was an Assistant Appointments
Secretary of the Governor's Office, from September 20, 1982 until
December 31, 1982.

2. In November, 1982 the Respondent was designated by the
Governor as a person in a "major policy-making position"[2] for
the year 1982. As such, he was a public employee[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 17, 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.

Page 169

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 22, 1983,
thirty-eight days after the expiration of the ten-day period
contained in the Notice.

8. The Respondent admits receiving the Commission's Notice but
states that because of his out-of-state employment commitments
between May, 1983 and July, 1983, he forgot 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.


IV. 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
calculated on the number of days which elapse after the expiration
of the ten-day period following the Commission's Notice.[4] 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. However, without
condoning the Respondents disregard of the filing requirement, the
Commission finds that a civil penalty of $500, rather than $660 is
appropriate. See, fn. 4, supra.


V. Order


On the basis of the foregoing, the Commission concludes that
Sean G. Mullin 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
orders Mr. Mullin to pay a civil penalty of five hundred dollars
($500.00).[5]

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

[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 yell 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 inerests 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, major policy making
position is defined as the executive or administrative head or
heads of a governmental body; all members of the judiciary; any
pcrson 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: the
head of each division, bureau or other major administrative unit
within such governmental body; and persons exercising similar
authority. . . (M.G.L. c. 268B, s.1(l).

[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..." M.G.L. c. 268B, s.1(o).

[4] 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 ten working
days and $20.00 per working day thereafter. In the instant case,
where the Respondent filed his Statement thirty-eight days after
the expiration of the ten-day period following the Commission's
Notice, a fine of $660.00 would ordinarily be warranted. However,
for the reasons stated in the Commission's decision in In the
Matter of Vernon Thornton 1984 Ethics Commission _____ issued
today, the maximum fine in late-filed cases is $500.00.

[5] The Respondent has demonstrated that full payment of this fine
in a single transaction would impose financial hardship on him.
Accordingly, the Commission will allow the Respondent to make two
monthly payments of $250.00 each to commence thirty days after he
is notified of this Decision an Order. The second payment should
be made within the following thirty days. Compare, In the Matter
of Thomas Chilik, 1983 Ethics Commission 130.

End Of Decision