Docket No. 217


IN THE MATTER OF VERNON R. THORNTON


Appearing: David Burns, Esq.: Counsel for Petitioner
State Ethics Commission

Vernon R. Thornton: pro se

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


Date: January 13, 1984



DECISION AND ORDER


Page 171


I. Procedural History


The Petitioner filed an Order to Show Cause on August 30,1983
alleging that the Respondent, Vernon R. Thornton, had violated
M.G.L. c. 268B, s.5 by failing to file his Statement of Financial
Interests for calendar year 1982(1982 SFI) within ten days of
receiving a Notice of Delinquency (Notice) from the Commission. The
Respondent filed an Answer which conceded the allegations but which
questioned the wisdom of imposing a civil penalty.

Pursuant to notice, an adjudicatory hearing was conducted on November 18, 1983 before Frances Burns, a member of the Commission
duly designated as presiding officer. See, M.G.L. c. 268B, s.4(c).
The parties waived the submission of briefs and presentation of
oral argument before the full Commission. In rendering this
Decision and Order, the members of the Commission have considered
the evidence and arguments presented by the parties.


II. Findings of Fact


1. The Respondent served as a member of the Board of
Registration in Veterinary Medicine from December, 1978 until
August, 1983.

2. In December, 1982, the Respondent was designated by the
Executive Office of Consumer Affairs as a "person holding a major
policy-making position"[1] for the purposes of filing a 1982
SFI.[2]

3. The Respondent received the 1983 SFI forms and instructions
from the Commission in March, 1983 and in April, 1983 received a
postcard from the Commission reminding him that his SFI was due on
May 1, 1983 and that failure to file by that date could subject him
to civil penalties of $2000.

4. On May 10, 1983, the Respondent received a Formal Notice Of
Delinquency notifying him that the Commission would commence
enforcement proceedings unless he filed his 1982 SFI within ten
days. Later that month, at the request of the Commission, the
Director of the Division of Registration contacted the Respondent
regarding his SFI.

5. The Commission authorized a preliminary inquiry in June, 1983
regarding the Respondent's failure to file his SFI and notified the
Respondent that he was the subject of a preliminary inquiry.

6. The Commission authorized adjudicatory hearings into this
matter in July, 1983. Following notification of the Commission
vote, the Respondent filed his 1982 SFI on August 3,1983, forty-
nine business days after the ten-day grace period of the Notice.


III. Decision


M.G.L. c. 268B, s.5 states, in relevant part:

(c) Every public employee shall file a statement of
financial interest 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 employee 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, 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 of delinquency.

Page 172

Inasmuch as the Respondent admits the facts which constitute a
G.L. c. 268B, s.5 violation, the Commission concludes that he
violated M.G.L. c. 268B, s.5 by falling to file his 1982 SFI within
ten days of receiving a Notice from the Commission.


IV. Sanctions


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. The fine
schedule, which was adopted in April 1983, imposes a daily fine of
$10.00 for the first ten working days and $20.00 per working day
thereafter. The purpose of the schedule is to assess fines in a fair
manner without regard to the timing of administrative proceedings
related to the delinquency. Although the schedule has been
effective in securing compliance with the M.G.L. c. 268B filing
requirements, the fine level accumulated under the schedule at
times has been excessive and disproportional to the offense. In the
Respondent's case, the filing of an SFI forty-nine business days
late amounts to a fine of $880.00. Without condoning the
Respondent's consistent disregard of the filing requirement, the
Commission believes that a ceiling of $500 would he appropriate in
cases where individuals such as the respondent have filed SFIs
late.


V. Order


On the basis of the foregoing, the Commission concludes that the
Respondent 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 the
Respondent to pay a civil penalty of $500.00 within thirty days of
notice of this Decision.

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

[1] 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 state employee
classified in step one of job groups XXV of the general salary
schedule contained in Massachusetts General Law, 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.

[2] The parties agree that the Respondent was at all time relevant,
subject to the provisions of M.G.L. c. 268B, s.5.

End Of Decision