Docket No.: 216


IN THE MATTER OF KENNETH M. NASH


Appearing: David J. Burns, Esq.: Counsel for Petitioner State Ethics Commission; E.Melvin Nash, Esq.: Counsel for Respondent Kenneth M. Nash


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


Date: February 28, 1984


DECISION AND ORDER


I. Procedural History


The Petitioner filed an Order to Show Cause on August
30,1983 alleging that the Respondent, Kenneth M. Nash, 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
December 2, 1983 before Commissioner Bernard McLaughlin, a duly
designated presiding officer. See, M.G.L. c. 268B, s.4(c). The
parties

Page 179

thereafter presented oral arguments before the full Commission and
submitted briefs in support of their positions. 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, Kenneth M. Nash, was a member of the
Massachusetts Aeronautics Commission (MAC), from May, 1979 until
January 29, 1982.

2. Due to funding problems with MAC, the Respondent decided to
resign in October, 1981. He wrote his formal letter of resignation
on January 22, 1982, but he neither received money from MAC nor
participated in MAC activities in 1982.

3. In January, 1983, the Respondent was designated by the
Secretary of the Executive Office of Transportation and
Construction 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.

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

5. 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.

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

7. 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.

8. The Respondent filed his 1982 Statement on August 2, 1983,
forty-nine days after the expiration of the ten-day period
contained in the Notice.

9. The Respondent admits receiving the Commission's Notice and
ignoring it, thinking it was sent in error. He testified that it
was the first correspondence he had received regarding this matter
because the Commission had been using an incorrect address.


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.

The Respondent maintains that he was not a member of MAC and
therefore, not a "public employee" during 1982 since it was his
intention to resign from MAC in October, 1981. He argues that the
date of his formal resignation, January 29,1982, should not be
controlling. However, for the purposes of the Commission's
regulations, 930 CMR 2.00, Designations of Public Employees, a
"public employee" is defined as any person holding a major policy-
making position in a governmental body for eight days or more
during a reporting year. . . " 930 CMR 2.02(15). The regulations
define "holding a major policy-making position in a governmental
body for eight days or more as occupying that position for that
period of time, without regard to days of actual service. 930 CMR
2.02(10). In view of these definitions, it is clear that the
Respondent was a public employee as defined by the statute during
1982. Based on his date of resignation, he occupied a position with
a governmental body for more than eight days in 1982. The fact that
the Respondent received no money, nor participated in any MAC
activities in 1982 is not relevant because MAC is a governmental
body authorized to expend public funds.[4] His failure to receive
compensation due to lack of funding does not exempt him from the
law.[5] Until the Respondent formally resigned from MAC on January
29, 1982, he was a member of MAC and, as such, he was required to
file his 1982 Statement by May 1, 1983.

Page 180

The respondent also contends that he did not have proper notice
of the filing requirement and the ensuing penalty for failing to
file as required. To support his position he maintains that he did
not receive prior Commission correspondence which was mailed to his
business address rather than his home address. He also states that
the Commission's Notice sent in May was the first letter he
received on this matter. However, the Respondent admittedly
received Commission material, such as the Notice sent to his
business address. Since the Notice informed the Respondent of his
delinquency and addressed the imposition of a civil penalty, he
received proper notice for the purposes of establishing a violation
under M.G.L. c. 268B, s.5.[6] After receiving the Notice, the
Respondent could have filed his Statement or contacted the
Commission within the ten-day grace period provided. He did
neither, choosing instead to ignore the material. 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 penalry 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.[7] 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 Respondent's disregard of the filing requirement, the
Commission finds that a civil penalty of $500, rather than $880 is
appropriate. See, fn. 7, supra.


V. Order


On the basis of the foregoing, the Commission concludes that
Kenneth M. Nash 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. Nash to pay a civil penalty of five hundred dollars
($500.00).

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

[3] For the purposes of M.G.L. c. 268B, public employee is
defined as: person who holds a major policy making position in a
any 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... M.G.L. c. 268B, s.1(o).

[4] Pursuant to M.G.L. c. 6, s.57, MAC is authorized to pay its
members $25.00 for each day of service as a commissioner.

[5] For the purposes of the Commission's regulations, 930 CMR 2.00,
Designations of Public Employees, "person who receives no
compensation" is defined as a person serving in a position for
which no compensation is authorized or a person serving on a board,
commission or council no member of which is authorized to receive
compensation. 930 CMR 2.02(14).

[6] Although receipt of other materials prior to the Notice is not
a relevant factor in establishing a violation of M.G.L. c. 268B,
s.5, the Commission credits the position of the Petitioner that the
Respondent did in fact receive the prior Commission material
regarding the filing of his Statement mailed to his business
address. See, Duato v. Commissioner of Public Welfare, 359 Mass.
635, 641(1971).

[7] 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 forty-nine days after the
expiration of the ten-day period following the Commission's Notice,
a fine of $880.00 would ordinarily be warranted. However, for the
reasons stated in the Commission's decision In the Matter of Vernon
Thornton 1984 Ethics Commission _____ issued January 13,1984, the
maximum fine in late-filed Statement cases is $500.00.

End Of Decision