Case No.: 176


Parties: IN THE MATTER OF DELABARRE F. SULLIVAN


Appearing: David J. Burns, Esq.: Counsel for Petitioner State Ethics
Commission Thomas J. Hannon, Esq.: Counsel for Respondent
Delabarre F. Sullivan


Commissioners: Vorenberg, Ch.; Brickinan, McLaughlin, Mulligan.


Date: January 12, 1983


DECISION


I. Procedural History


The Petitioner, State Ethics Commission (the Commission), filed
an Order to Show Cause on October 1, 1982, alleging that Respondent
Delabarre F. Sullivan (Respondent) had violated Section 5 of M.G.L.
c. 268B, the financial disclosure law, by failing to file a
Statement of Financial Interests (Statement) within ten days of
his receipt of a Formal Notice of Delinquency. The Respondent filed
an Answer which admitted the facts alleged, but asserted that there
was no violation because, during the relevant period, the
Respondent's mental condition was such that he did not comprehend the necessity for complying with G.L. c. 268B, s.5.

Pursuant to notice, an evidentiary hearing was conducted on
November 23, 1982, before Rev. Bernard P. McLaughlin, a member of
the Commission duly designated as presiding officer. See M.G.L. c.
268B, s.4(c). The parties waived briefs and oral argument. In
rendering this decision and Order, each of the four participating
members of the Commission has considered the evidence presented by
the parties.


II. Findings of Fact[1]


1. The Respondent, Delabarre F. Sullivan, the federal funds
coordinator for Middlesex County, was required by G.L. c. 268B, s.5
to file a Statement for calendar year 1981, on or before May 1,
1982.

2. The Respondent failed to file his Statement on or before
May 1,1982.

3. Pursuant to G.L. c. 268B, s.3(f), the Respondent received
a written Formal Notice of Delinquency ("Notice") from the
Commission on May 19, 1982, requiring him to file a Statement
within ten days of receiving the Notice.

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

5. The Respondent's Statement was filed with the Commission
on June 15,1982.

6. The Commission initiated a preliminary inquiry on June
16,1982, as authorized by G.L. c. 268B, s.4(a).

Page 129

7. The Respondent suffered a concussion on July 23, 1981,
which left him partially disabled by brain damage. Since that time,
he underwent psychotherapy and medication; the treatment continued
through May and June of 1982.

8. The Respondent has received Workmen's Compensation payments
from Middlesex County from July 23,1981 through the present.

9. The Respondent did not file a federal or state income tax
return for the year 1981.


III. Decision


1. Jurisdiction

The parties agreed that the Respondent was, at all times
relevant, subject to the provisions of G.L. c. 268B, s.5 and that
the Commission was authorized to initiate and conduct adjudicatory
proceedings pursuant to that statute.

2. Chapter 268B Allegation

G.L. c. 2688, 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...

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,[2] 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.

The elements necessary to establish a 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 admitted, by way of demurrer, all
the elements of a G.L. c. 268B, s.5 violation, the Commission
concludes that he violated G.L. c. 268B, s.5 by failing to file his
1981 Statement within ten days of receiving a delinquency notice
from the Commission. With the violation established, the only issue
left for the Commission to address is the sanction to be imposed.


IV. Sanction


In general, the Commission considers G.L. c. 268B, s.5
violations, whether technical or flagrant, to be serious
infractions which merit a penalty. Under G.L. c. 2688, s.4(d),

upon a finding... that there has been a violation of
Chapter 268A or this chapter, [the Commission may] issue an
order requiring the violator to:

(1) cease and desist such violation [of c. 268B];

(2) file any report, statement of other information as
required by this chapter; or

(3) pay a civil penalty of not more than $1,000 for each
violation of this chapter. ..[3]

Pursuant to this section, the Commission has adopted a policy of
levying civil fines on those who do not file timely statements as
required by G.L. c. 268B.[4] This policy, which has been followed
in numerous Disposition Agreements filed with the Commission, and
in a Decision and Order issued in another case on this date,[5]
establishes the fine according to the stage of legal proceedings
reached by the time the Statement is filed. Commission practice
under this policy has

Page 130

been to levy a fine of $100 when a Statement is filed after the
expiration of the ten-day period following a delinquency notice,
but before a preliminary inquiry has been initiated.

As stated in the Chilik decision issued today, the Commission
retains the discretion to adjust the civil penalty in recognition
of mitigating or aggravating circumstances in individual cases.
One of the mitigating circumstances is where

the Respondent was unable to comply due to a documentable
physical or mental condition, either temporary or
permanent.[6]

The case at hand presents just such circumstances, as outlined
below.

The Respondent suffered a concussion at work on July 23, 1981.
Substantial documentation of his resultant condition was introduced
into evidence, including documents detailing his brain damage,
headaches, forgetfulness and depression. He was under psychiatric
therapy from at least March through July, 1982, the time period
covered by the Order to Show Cause, and also received workmen's
compensation payments during that period. These facts, combined
with his failure to file a 1981 income tax return (thereby
subjecting him to possible criminal liability), persuaded the
Commission that the Respondent's failure to comply with G.L. c.
268B, s.5 was not intentional but caused by his continuing medical
problems, physical and mental. Although these facts do not nullify
the G.L. c. 268B, s.5 violation, the Commission considers them
sufficient grounds to forego the assessment of a fine against the
Respondent. The Commission's forbearance of a fine here should in
no way be read as diminishing the seriousness of a G.L. c. 268B,
s.5 violation, but rather as attributable to the substantive
medical evidence on record in this case.

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[1] These findings were all either admitted by the Respondent in
his Answer by way of Demurrer, or were corroborated by exhibits
introduced into evidence, or both.

[2] "[The commission shall) inspect all statements of financial
interests filed with the commission in order to ascertain whether
any reporting person has failed to file such a statement or has
filed a deficient statement. If, upon inspection. it is ascertained
that a reporting person has failed to file a statement of financial
interests, or if it is ascertained that any such statement filed
with the commission fails to conform with the requirements of
section five of this chapter, then the commission shall, in
writing, notify the delinquent; such notice shall state in detail
the deficiency and the penalties for failure to file a statement
of financial interests."

[3] St. 1982. c. 612. s.16 raises the maximum fine to $2,000 per
violation, effective 3/29/83.

[4] See, Minutes of Commission Meeting. April 7,1980.

[5] In the Matter of Thomas A. Chilik, Commission Adjudicatory
Docket No. 182.

[6] Id. at 5.


End Of Decision