August 12, 2010

Decision and Order

Petitioner issued an Order to Show Cause (OTSC) on February 17, 2010, against Respondent Robert G. Cole (Cole), the former Director of Toll Operations of the Massachusetts Turnpike Authority. The OTSC alleges that Cole violated § 5 of

G.L. c. 268B, the Financial Disclosure Law, when he failed to file a Statement of Financial Interests (SFI) for calendar year 2008 (2008 SFI). Cole subsequently filed his 2008 SFI on March 22, 2010.

When Cole failed to file an Answer to the OTSC, Petitioner filed a Motion for Summary Decision. The Presiding Officer issued an order requiring him to file an Answer by April 12, 2010, or to otherwise show cause why a summary decision should not be entered against him. On April 12 th, Cole filed a Response admitting all the allegations in the OTSC with the exception that he failed to file his 2008 SFI.

A pre-hearing conference was held on April 30, 2010. Subsequently, on May 5, 2010, the parties filed Stipulations of Fact and Law (Stipulations) with three (3) attached exhibits. In the Stipulations, the parties agreed that the only remaining issue was the assessment of the civil penalty. The parties waived a hearing, the filing of briefs and closing arguments on that sole issue, leaving the matter of the civil penalty to the Commission's discretion. [1]

I. Findings of Fact

The Commission finds the following facts by a preponderance of the evidence.

1. In August 2000, Cole began serving as the Director of Toll Operations for the Massachusetts Turnpike Authority (Authority).

2. Cole served as the Director of Toll Operations for more than 30 days in 2008. In that position, he was a state employee as that term is defined in G.L. c. 268A, § 1.

3. In accordance with G.L. c. 268B and 930 CMR 2.00, Cole's position of Director of Toll Operations for the Authority was designated as a major policy-making position for calendar year 2008. As such, he was required to file an SFI for calendar year 2008 (2008 SFI) by May 1, 2009, pursuant to G.L. c. 268B and 930 CMR 2.00.

4. Cole was notified of his obligation to file his 2008 SFI.

5. He did not file a 2008 SFI on or before May 1, 2009.

6. On May 4, 2009, the Commission sent Cole a Formal Notice of Lateness (Notice) by first class mail. The Notice advised him that his 2008 SFI had not been filed and was therefore, delinquent and further, that his failure to file within 10 days of receipt of the Notice - - May 18, 2009 [2] / - - would result in the imposition of civil penalties. It also informed Cole of the Commission's fine schedule for first time and repeated late submission of an SFI.

7. He failed to file his 2008 SFI within 10 days after receipt of the Notice.

8. Cole filed his 2008 SFI on March 22, 2010.

9. He filed his 2007 SFI late for which he was ordered by the Commission to pay a $500 civil penalty pursuant to its Ruling and Order on Motion for Summary Decision issued December 17, 2009.

10. Cole was terminated from his position at the Authority on March 7, 2008.

11. His elderly mother was living with him at all relevant times. She was diagnosed with leukemia in approximately 2002. Her illness became increasingly severe as she underwent various treatments to combat the progress of the cancer. She received hospice services at Cole's house for the last months of her life.

12. The last two years of his mother's illness, until her death on February 23, 2009, put a severe strain on Cole and his wife who were her primary caregivers.

13. Cole is 56 years old and has limited educational experience. He has been unable to find employment since his termination from the Authority. His unemployment compensation ended in 2010.

14. Cole has no current income. On the May 14, 2010 Financial Statement attached to his Affidavit, he lists $0 as his total gross monthly income and total monthly expenses of $2,242. Cole also lists his gross income for the prior year of 2009 as $56,724 from unemployment and pension withdrawals.

15. His wife is the sole support of their family.

II. Discussion

Section 5(c) of G.L. c. 268B, the Financial Disclosure Law, requires every public employee [3] / to file annually an SFI for any year in which they are public employees for thirty (30) days or more. 930 CMR 2.01. It further requires that on or before May 1 st of each year, a public employee file an SFI for the preceding calendar year. The purpose of the filing requirement is to provide a means of achieving "the legitimate goal of assuring the people of [the] 'impartiality and honesty of public officials.'" Opinion of the Justices to the Senate, 375 Mass. 795, 807 (1978) quoting § 1 of the proposed new G.L. c. 268B.

Here, it is undisputed that Cole did not comply with the statute. He did not file his 2008 SFI by May 1, 2009. In addition, he failed to file within 10 days of receiving the Formal Notice of Lateness. Section 5 of G.L. c. 268B provides in relevant part that the "[f]ailure of a reporting person to file [an SFI] within ten days after receiving [a Formal Notice of Lateness] . . . is a violation."

The elements necessary to establish that Cole violated § 5 are as follows: (1) Cole was a public official or employee as defined by G.L. c. 268B during the year in question (2008); (2) he was notified in writing of his delinquency and the possible penalties for failure to file his 2008 SFI; and (3) he did not file an SFI within 10 days of receiving notice of delinquency. See, e.g., In Re Smith , 1985 SEC 221, 222; In Re Owens, 1984 SEC 176, 176. Based on his Response and the Stipulations, we find that Cole violated § 5.

During the relevant time period, the Commission was authorized by § 4(j)(3) of G.L. c. 268B to impose a civil penalty of up to $2,000 for each violation. [4] / The Commission has established two separate schedules of penalties for SFIs filed more than 10 days after receipt of a Formal Notice of Lateness: one for the first time late submission, and a schedule of more substantial penalties for repeated late submission. Because Cole's 2007 SFI was filed late, the repeated late submission schedule is applicable. [5] / Although Cole was required to file his 2008 SFI by May 18, 2009, in accordance with the Formal Notice of Lateness, he did not file until March 22, 2010, more than 31 days late. Pursuant to the applicable schedule, the penalty would be $1,000.

Here, there is a dispute as to the appropriate penalty. Cole argues that as a result of the mitigating circumstances detailed in his Affidavit and due to his continued unemployment and lack of resources, any penalty should be waived. Petitioner argues that the penalty should be $1,000 with no mitigation, although it does not oppose a payment plan.

The Commission has the discretion to adjust a civil penalty in recognition of mitigating or aggravating circumstances in individual cases. See In Re Smith, 1985 SEC at 222 ; In Re Sullivan , 1983 SEC 128, 130. Here, it is appropriate for the Commission to exercise its discretion for the following reasons.

During the period when Cole would have been gathering and reviewing the material and information needed to prepare his 2008 SFI, his mother was living with him. Since her diagnosis with leukemia in 2002, her illness became increasingly severe as she underwent various treatments. The last two years of her illness, including her receipt of hospice services, until her death on February 23, 2009, Cole and his wife served as his mother's primary caregivers. Caring for a terminally ill family member is the type of event that can fully consume an individual's time and energy. See In Re DeLuca, Adjudicatory Docket No. 630 (January 18, 2002) ("obvious strain accompanying . . . divorce and custody proceedings" are mitigating factors in assessing civil penalty for late filed SFI).

In addition, Cole, who is 56, and has limited educational experience, has been unable to find employment since his termination from the Authority several years ago. See In Re McNamara, 1983 SEC 150, 152 (reduction in penalty in recognition that respondent had been unemployed for approximately five months). His unemployment compensation ended earlier in 2010. As represented in his Affidavit and accompanying financial information, he has no income of any sort and monthly expenses of $2,242. His wife serves as the sole support of their family.

The obvious strain accompanying his mother's illness and his role as her primary caregiver, coupled with his unemployment for over two years and lack of income from other sources, are factors that the Commission finds in mitigation in assessing the civil penalty to be imposed on Cole. In light of these mitigating factors, a penalty substantially less than the $1,000 penalty set forth in the schedule is appropriate.

III. Order

Pursuant to the authority granted to it by G.L. c. 268B, § 4(j)(3), the Commission finds that Respondent Robert G. Cole violated G.L. c. 268B, § 5 when he failed to timely file his 2008 SFI and hereby orders Cole to pay a civil penalty of two hundred and fifty dollars ($250). Cole is further ordered to pay this penalty, without interest, to the State Ethics Commission on or before six (6) months after issuance of this Decision and Order.

DATE AUTHORIZED: July 16, 2010
DATE ISSUED: August 12, 2010

__ //signed// _________ ___ //signed//________
Jeanne M. Kempthorne Paula Finley Mangum

___ //signed//_________
David L. Veator

Dissent in Part

I concur with the majority's finding that Respondent Robert G. Cole violated G.L. c. 268B, § 5 when he failed to timely file his 2008 SFI. However, I do not agree with the amount of the civil penalty assessed by the majority. I would have imposed a higher civil penalty.

___ //signed//____________________
Charles B. Swartwood III, Chairman


Respondent is notified of his right to appeal this Decision and Order pursuant to G.L. c. 268B, § 4(k) by filing a petition in Superior Court within thirty (30) days of the issuance date.

cc: James D. Baldassini, Esq. Karen Beth Gray
Baldassini & Baldassini Enforcement Division Deputy Chief
59 Winter Street State Ethics Commission
Weymouth, MA 02188 One Ashburton Place, Room 619
(BY FAX & MAIL) Boston, MA 02108

[1] / On May 28, 2010, the Presiding Officer issued an Order on Assessment of Civil Penalty Submissions requiring the parties to submit written memoranda on the remaining issue. Both parties filed memoranda. Cole also filed an Affidavit dated May 28, 2010.

[2] / The Commission allows three days for the receipt of a Notice if sent by first class mail.

[3] / During the relevant time period, public employee was defined as "any person who holds a major policymaking position in a governmental body." G.L. c. 268B, § 1(o).

[4] / The 2009 amendment to G.L. c. 268B, increasing the penalty to $10,000, is not applicable to Cole.

[5] / During the relevant time period, that schedule was as follows: 1-10 days late ($100); 11-20 days late ($200); 21-30 days late ($400); 31 days or more late ($1,000); non-filing of an SFI ($2,000).