Docket No.: 235


IN THE MATTER OF BILL OWENS


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


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


Date: February 28, 1984



DECISION AND ORDER


Page 176


I. Procedural History


The Petitioner filed an Order to Show Cause on October 3, 1983
alleging that the Respondent, Bill Owens, had violated M.G.L. c.
268B, s.5[1] by failing to file his Statement of Financial
Interests for 1982 (SFI) within ten days of receiving from the
Commission a Formal Notice of Delinquency.

Pursuant to notice, an adjudicatory hearing was conducted on
January 10, 1984 before Commissioner David Brickman, a duly
designated presiding officer. See, M.G.L. c. 268B, s.4(c). Oral
argument was heard before the full Commission at its meeting on
January 30, 1984. 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 served as a state senator until the end of
1982, and was therefore a public official within the meaning of
G.L. c. 268B, s.1(q).

2. As a public official through 1982, the Respondent was
required to file an SFI for 1982 on or before May 31, 1983.

3. The Respondent failed to file his 1982 SFI by May 31, 1983.

4. On June 15,1983, the Respondent received a Formal Notice of
Delinquency (Notice) from the Commission requiring him to file his
SFI within ten days receipt of the Notice.

5. The Respondent failed to file his 1982 SFI within ten day's
of receipt of the Notice.

6. The Commission authorized a preliminary inquiry on July 19,
1983 and the initiation of adjudicatory proceedings against the
Respondent thereafter.

7. The Respondent filed his 1982 SFI on August 17, 1983, thirty-
seven working days after the expiration of the ten-day period
contained in the Notice.


III. Decision


The elements necessary to establish a G.L. c. 268B, s.5
violation are: (1) the subject was a public official or 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 an SFI; and (3) the subject did not
file an SFI within ten days of receiving notice of delinquency. The
Respondent conceded at both the adjudicatory hearing and at oral
argument before the full Commission that he had failed to file his
1982 SFI within ten days of receiving the Commission's Notice, and
has offered no legal defenses. The Commission therefore concludes
that the Respondent violated G.L. c. 268B, s.5.


IV. Sanction


Under G.L. c. 268B, s.4(d), the Commission may order an
individual who violates G. L. c. 268B to pay a civil penalty of not
more than $2,000 for each violation. In cases involving SFIs which
are filed late, the Commission imposes a fine based on the number
of days which elapse after the expiration of the ten-day period
following the Commission's Notice. The schedule the Commission
adopted on April 12,1983 calls for a daily fine of $10 per day for
the first ten working days and $20 per working day thereafter, or
a total of $640 in the instant case. However, the Commission
recently adopted a $500 limitation on the civil penalty to be
imposed on late filers. See, In the Matter of Vernon R. Thornton,

Page 177

1984 Ethics Commission _____. While the Commission does retain the
discretion to adjust a civil penalty in recognition of mitigating
circumstances, none of the factors warranting mitigation below the
$500 ceiling are present in this case.[2] Compare, In the Matter
of Delabarre F. Sullivan, 1983 Ethics Commission 128.


V. Order


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

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

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

(b) Every public official shall file a statement of financial
interests for the preceding calendar year with the Commission on
or before the last Tuesday in May of each year that such public
official holds such office and on or before May first of the year
after such public official leaves office.

(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] The Respondent raised a number of factors in an attempt to
eliminate or reduce any civil penalty which might be imposed,
including (1) he was traumatized over losing the election in
November, 1982; (2) he had no willful intent not to file his SFl;
(3) he was out of town frequently during the first half of 1983,
and (4) there was some confusion as to which form had not been
filed, and which of his two accountants handled such matters. The
Commission concludes that none of these factors is sufficient to
warrant mitigation.

End Of Decision