Docket No.: 231


Doc. Type: Agreements


Parties: IN THE MATTER OF LUCIAN F. PERREAULT


Appearing: Sally C. Reid, Esq.: Counsel for Petitioner State Ethics Commission; Lucian F. Perreault: pro se


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 September 14,
1983 alleging that the Respondent, Lucian F. Perreault, 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
January 11, 1984 before Commissioner Joseph I. Mulligan, 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 did not submit briefs. 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, Lucian F. Perreault, was a consultant to the
Massachusetts Committee on Criminal Justice, from March through
September, 1982.

2. In December, 1982 the Respondent was designated by the
Secretary of Public Safety 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 19, 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.

Page 178

7. The Respondent filed his 1982 Statement On July 26, 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 and
states that he was "negligent" in this matter.[4]


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.[5]

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 $660 is appropriate. See, fn. 5, supra.


V. Order


On the basis of the foregoing, the Commission concludes that
Lucian F. Perreault 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. Perreault 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 employer...

(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 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 policy-making position in a
governmental body"... M.G.L. c. 268B, s.1(o).

[4] The Respondent also stated that he decided not to cooperate
with Commission staff in resolving this matter because he thought
he "was being taken" when a staff member allegedly told him that
he could make a "deal." The staff member in question testified
during the hearing and denied using the word "deal" in his
conversations with the Respondent, whatever misunderstanding the
Respondent may have had concerning this discussion is not relevant
to the factual issue of whether the Respondent was delinquent
number G.L. c. 268B. s.5.

[5] 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 the Matter
of Vernon Thornton 1984 Ethics Commission _____ issued on January
13, 1984, the maximum fine in late filed Statement cases is $500.00.

End Of Decision