Docket No.: 196


IN THE MATTER OF DANA G. CHASE


Appearing: David J. Burns, Esq,: Council for Petitioner, State Ethics Commission; Dennis G. Regan, Esq,: Counsel for Respondent, Dana G. Chase


Commissioners: Brickman, Burns, McLaughlin, Mulligan


Date: July 28, 1983



DECISION AND ORDER


Page 153


I. Procedural History


The Petitioner initiated these adjudicatory proceedings on
March 23,1983 by filing an Order to Show Cause pursuant to the
Commission's Rules of Practice and Procedure, 930 CMR 1.01(5) (a).
That Order alleged that the Respondent, Dana G. Chase, while a
member of the Board of Selectmen of the Town of East Bridgewater
(Town), had violated M.G.L, c. 268A, s.19 by participating as a
municipal employee in certain particular matters in which he and
the real estate firm he owned and operated in his private capacity
had a financial interest.

Specifically, Mr. Chase was alleged to have participated in
a vote to approve the hiring of a contractor by the Town to clear
and bury trees and debris on a parcel of land, known as the Polo
Field, at a time when representatives of his realty firm, Dana
Chase Real Estate (Chase Real Estate) were negotiating the sale of
that land. Those negotiations culminated in the sale of the Polo
Field shortly after the clearing took place. He was also alleged
to have signed the contract between the Town and the contractor for
the performance of that work. The Order alleged that by these
actions, Mr. Chase used his official position as Selectman to
secure unwarranted privileges for himself, his realty firm and the
parties to the land transaction, in violation of M.G.L. c. 268A,
s.23(d).[1]

At oral argument after the close of the hearing, and in his
brief, Petitioner also alleged violations by the Respondent of
M.G.L. c. 268A, s.s.19 and 23(d) by signing as Selectmen an
agreement excusing the sellers of the Polo Field from any liability
in connection with that clearing.

The Respondent's Answer admitted the facts alleged in the
Order to Show Cause, but denied that he or Chase Real Estate had
a financial interest in the vote to hire the contractor or the
signing of the contract for that purpose, and that his actions
constituted use of his official position to secure an unwarranted
privilege for himself, his firm or the parties to the land sale.

An adjudicatory hearing was held on June 1, 1983 before
Commissioner David Brickman, the Presiding Officer designated
pursuant to M.G.L c. 268B, s.4(c), at which four witnesses gave
testimony and forty-four (44) documents were entered into evidence.
The parties thereafter filed briefs with the Commission and
presented oral arguments before the full Commission on June
23,1983. In rendering this Decision and Order, each participating
Commissioner has read and/or heard the evidence and arguments
presented by the parties.


II. Findings of Fact


1. The Respondent is and has been a member of the Board of
Selectmen in the Town since 1972. He is also owner and principal
officer of Chase Real Estate, a business engaged in the
representation of buyers and sellers of real property as a real
estate broker.

The Starling Problem

2. The Polo Field is a 21-acre parcel of land located in the
Town. This land was vacant and a portion of it contained trees and
shrubs.

3. During 1982 and until March 1983, the Polo Field was owned
by the East Bridgewater Land and Trust (Trust). The beneficiaries
of the Trust were represented by three trustees (Trustees): Frank
Solari (Mr. Solari), Roland Veilleux (Mr. Veilleux) and John C.
Wheatley, Esq. (Mr. Wheatley).

4. In 1979, the Town experienced a problem with large numbers
of starlings. The birds were roosting in the trees and shrubs which
covered approximately three acres of the Polo Field and abutting
property owned by a Mr. Skinner. In such large numbers the
starlings present a health hazard because their feces produce a
fungus which, upon becoming airborne, can lead to histoplasmosis,
a respiratory ailment. This problem was of particular concern
because of the Polo Field's proximity to the Town's public schools.

Page 154

5. At that time, the owners of the Polo Field were contacted
by the Town in regard to remedying the starling problem. Mr.
Veilleux, representing the owners, appeared before the Town Board
of Selectmen and stated that it was unlikely that the owners of the
Polo Field would be willing to spend any money to alleviate the
problem. Mr. Veilleux said he would attempt to locate someone who
would be willing to remove the trees from the land in return for
being allowed to sell the resulting wood. Mr. Veilleux did so and
all the large trees on the Polo Field were cut down.

6. By the summer of 1982, trees and other growth had again
appeared on the Polo Field. The starlings returned, as well.

7. In August of 1982, complaints from citizens of the Town
about the starlings came to the attention of the Board of
Selectmen.

8. In September of 1982, the Board of Selectmen directed the
Town Police Department to attempt to drive away the starlings by
shooting blank shot in the area and by broadcasting amplified tape
recordings of starling distress calls.

9. The Chief of Police reported to the Board of Selectmen on
September 16, 1982, that the measures prescribed were costly and
nonpermanent remedies. He called a meeting of Town officials and
suggested three alternative solutions: 1) require the owners to
clear the land; 2) to have the Town clear the property, bury the
debris and lien the property for the costs incurred; 3) hire an
outside contractor to perform the clearing and lien the property
for costs.

10. On September 20,1982, at a meeting of the Town Board of
Selectmen, Town officials discussed the starling problem and
concluded that the best solution would be to dig up and bury all
the trees and shrubs, and then plant grass seed to prevent
re-growth.

11. Robert H. Jones (Mr. Jones), a member of the Town Board
of Health, stated that the owners would be contacted for permission
for the Town to enter onto the Polo Field for the clearing
operation.

12. On September 21, 1982, Mr. Jones contacted Mr. Wheatley
and informed him of the Town's concern with the starling problem.
Mr. Jones asked whether the Trust would have any objection to the
Town taking action to clear the trees and accumulating debris on
the Polo Field. Mr. Wheatley responded that the Trust would have
no objection, provided it incurred no cost or other liability.

13. Between September 21 and 27, 1982, Mr. Wheatley drafted
an agreement (Agreement) subject to the approval of the other
Trustees, granting the Town permission to enter onto the Polo Field
to cut and remove or bury whatever vegetation it deemed necessary.
The Agreement also excused the Trust from any liability, financial
or otherwise, arising from this operation.

14. On September 23,1982, the Town Board of Health declared
the Polo Field and the abutting land of Mr. Skinner "a serious
health hazard and nuisance,"

15. On September 27, 1982, Mr. Wheatley appeared at a meeting
of the Board of Selectmen and presented them with the Agreement
proposed by the Trustees. The Selectmen read the Agreement and gave
it to Kenneth E. MacMullen, Esq. (Mr.MacMullen), Town Counsel to
read over. Mr. Skinner submitted a document with substantially the
same terms as the Agreement.

16. The Selectmen, including Mr. Chase, voted at the September
27, 1982 meeting to have a contractor clear, level and seed the
Polo Field as soon as possible and signed the documents offered by
the Trustees and Mr. Skinner on behalf of the Town.

17. On October 4, 1982, the Town Selectmen, including Mr.
Chase, signed a contract with Bertarelli Brothers, Inc., a Brockton
contracting firm, for the work to be performed on the Polo Field
at a cost of $5,000. That work was to be completed within 10 days.

18. On November 1,1982, Mr. MacMullen, in response to a
request by the Board of Selectmen, ruled that because the starlings
were wild animals roosting on the land as a result of natural,
rather than manmade, causes, the cost of clearing the land was not
recoverable by the Town from the owners.

The Sale of the Polo Field

19. In February of 1980, the Town had taken tax title to the
Polo Field, pursuant to M.G.L. c. 60, s.53, for non-payment of
taxes. The Trust, as owner of the property, had the ability to
redeem that title by paying off the overdue taxes plus interest
prior to the foreclosure of that right of redemption. See M.G.L.
c. 60, s.s.62 and 65. The Town filed a petition for such a
foreclosure on September 8,1981.

20. In the spring of 1982, the Trustees decided to attempt to
sell the Polo Field. They agreed that Mr. Veilleux would list the
property at an asking price of $120,000 with three real estate
brokers in the Town as an "open listing", meaning that whichever
of the three agents produced an acceptable buyer would be paid a
commission by the Trust.

21. Mr. Veilleux listed the Polo Field with three real estate
brokers in the Town, including Chase Real Estate. No written
contract was entered into and no rate for the commission was set
at that time,


Page 155

but the usual commission on vacant land sold at the asking price
was ten percent (10%).

22. In June of 1982, Elsa Trombly (Ms. Trnmbly), an employee
of Chase Real Estate, began dealings with John Peck (Mr. Peck),
Director of Operations of Cumberland Farms. That company purchases
large tracts of land not immediately eligible for profitable
development, like the Polo Field, to be used as farm land.

23. On or about August 30, 1982, Mr. Peck offered the Trust
$50,000 for the Polo Field. The Trustees rejected that offer.

24. In September or early October of 1982, Mr. Peck offered
$60,000 for the land. The Trustees rejected that offer, and shortly
thereafter made a counter-offer of $75,000 to Mr. Peck.

25. During the first week of October, 1982, Mr. Peck was
driving by the Polo Field and saw that the clearing of the land had
begun. Presuming that the land had been purchased, he later
contacted Ms. Trombly and inquired who the buyer had been. Ms.
Trombly told him that the land had not been sold and explained
about the starling problem and that the Town was providing for the
clearing.

26. On October 9,1982, Mr. Peck made an offer of $67,500 which
was accepted by the Trustees within the following week.

27. The clearing of the Polo Field by the Town did not, in Mr.
Peck's opinion, increase the value of the land.

28. At about this time, the Trustees contacted Mr. Chase
concerning the commission to be paid to Chase Real Estate. The
Trustees did not intend to pay 10% on the proposed selling price
of $67,000. After some negotiations, the Trustees and Mr. Chase
agreed to a $4,000 commission.

29. On October 16, 1982, Mr. Peck signed a Purchase and Sale
Agreement declaring $67,500 as the sale price for the Polo Field
and setting a commission of $4,000 for Chase Real Estate. The
Trustees signed this Agreement on October 21, 1982, subject to a
provision regarding acknowledgement by the buyer that he was aware
that trees and other debris had been buried on the land by the
Town.

30. In March of 1983, the sale of the Polo Field by the Trust
to Cumberland Farms was finalized. Proceeds of that sale were used
by the Trust to redeem tax title from the Town. On March 30,1983,
the Town withdrew its petition to foreclose the right of redemption
and Chase Real Estate was paid a commission of $4,000.


III. Decision


The Respondent has been charged with violations of M.G.L. c.
268A, s.s.19 and 23(d).

A. Section 19[2]

The Commission concludes that the Respondent did not violate
M.G.L. c. 268A, s.19. Specifically, the Commission holds that a
preponderance of the evidence does not support a finding that Mr.
Chase had a financial interest in the particular matter in which,
by his own admission, he participated.

1. Municipal Employee

The Respondent admits that, as an elected member of the Town
Board of Selectmen, he was a "municipal employee" as defined in
M.G.L. c. 268A, s.1(g).

2. Participate as such an employee in a Particular Matter

Participation for purposes of M.G.L. c. 268A, s.19 is defined
as participation in agency action or in a particular matter
personally and substantially as a municipal employee, through
approval, disapproval, decision, recommendation, the rendering of
advice, investigation or otherwise, M.G.L. c. 268A, s.1(j). A
particular matter is any judicial or other proceeding, application,
submission, request for a ruling or other determination, contract,
claim, controversy, charge, accusation, arrest, decision,
determination, finding, but excluding enactment of general
legislation by the general court.[3]. M.G.L. c. 268A, s.1(k).

The Commission finds that the vote by the Board of Selectmen
to hire a contractor to clear the Polo Field and the signing of a
contract for that purpose are particular matters. By his own
admissions, the Respondent participated as a municipal employee in
those particular matters. Assuming arguendo that the Petitioner
properly raised the Respondent's signing of the Agreement as an
alleged violation of M.G.L. c. 268A, s.19, the signing of that
Agreement would also be a particular matter in which the Respondent
participated.

Page 156

3. In Which He or a Business Organization in which He is an
Officer, Director or Employee has a Financial Interest

The Commission concludes that the evidence in the record does
not support the finding that the Respondent or his realty firm had
a financial interest in the particular matters in which he
participated. Both the Respondent and Chase Real Estate clearly
had a financial interest in the sale of the Polo Field and in the
negotiations between Mr. Peck and the Trustees. Messrs. Wheatley
and Veilleux testified that they expected to pay a commission to
the selling broker, even though the rate of that commission had not
been explicitly agreed upon. The fact that a buyer produced by
Chase Real Estate was in the process of negotiation with the
Trustees at the time the alleged violations of s.19 occurred lends
additional support to this finding. That the Town held tax title
to the Polo Field has no bearing on the conclusion. Until
foreclosure of the statutory right of redemption, the Trust had the
ability to redeem that title at will by paying the delinquent
taxes. The Trustees could freely negotiate and consummate a sale
of the property and in this case that sale resulted in a commission
for Chase Real Estate.

However, it does not necessarily follow that the Respondent
or Chase Real Estate had a financial Interest in the particular
matters in which Mr. Chase participated, and it is that financial
interest which is necessary for a violation of s.19. Petitioner
presented no direct evidence that the clearing affected the value
of the land or that the parties to the sale considered such an
effect in their negotiations. The chronology of those negotiations,
the clearing of the Polo Field by the Town and the subsequent
agreement on a sale price is presented to support the inference
that the clearing of the land precipitated that agreement. However,
Mr. Peck testified that the clearing of the land was not the reason
why he increased his offer from $60,000 to $67,000, and that the
clearing had not increased the value of the Polo Field to him. No
attempt was made to impeach or otherwise rebut this testimony. No
evidence in the record indicates that the Trustees considered the
clearing of the land or waiver of liability by the Town in their
decision to accept Mr. Peck's offer. Moreover, the course of the
negotiations between the parties followed the normal pattern
between buyer and seller, in which offers and counteroffers are
made until an acceptable compromise is agreed upon, and fails to
suggest that the negotiations were affected by the clearing of the
land. The lack of a nexus between the sale of the Polo Field, in
which Mr. Chase and Chase Real Estate had a financial interest, and
the actions taken by the Town Board of Selectmen to clear the land,
the particular matters in which the Respondent participated,
precludes a finding by the Commission of a violation of s.19 in
this case.

Petitioner correctly argues that the financial interest in the
sale gave the Respondent an "identifiable financial interest in...
any physical alterations or excavation of the property which
might affect the sale, purchase price or future use of that property."[4]
But, Petitioner's assertion that the clearing of the Polo Field by
the Town affected those factors is not supported by the evidence
in the record.

B. Section 23[5]

The Commission also concludes that the Respondent did not
violate M.G.L. c. 268A, s.23(d). Specifically, the Commission holds
that a preponderance of the evidence does not support a finding
that the Respondent's actions as a Selectmen in connection with the
clearing of the Polo Field by the Town constituted the use of his
official position to secure an unwarranted privilege or exemption
for himself, his business or the parties to the land transaction.

The Respondent's sole connection with the Polo Field is
related to the sale of the land. As stated above, the Commission
finds that the clearing had no effect on the negotiations between
the Trust and Mr. Peck which led to that sale. Therefore, the
Respondent's actions as Selectmen in connection with the decision
by the Town to clear the land, having no bearing on the sale of the
Polo Field, did not result in any privilege or exemption for him.

In holding that the evidence does not sustain a violation of
s.19, the Commission concludes that neither party to the land sale
viewed the clearing of the Polo Field as contributing any value to
it; nor did either party benefit in any way by that clearing.
Therefore, the clearing was not a privilege or exemption for the
Trust or Mr. Peck.

Page 157

In regard to the waiver of liability agreed to by the
Selectmen, the Commission finds the evidence insufficient to
support a violation of s.23(d). In particular, the Commission holds
that a preponderance of the evidence does not support a finding
that the privilege or exemption granted to the owners of the Polo
Field was unwarranted.

The Trust was granted an exemption from liability for the
costs of the clearing by the Selectmen. Petitioner argues that
M.G.L. c. 111, s.s.122-125, empowering local boards of health to
remove any "nuisance, source of filth or cause of sickness" on land
at the expense of the owner, entitled the Town to recover the cost
of clearing the Polo Field from the Trust, and supports the
conclusion that this exemption is unwarranted.

On the other hand, when the starling problem had occurred
several years earlier, Mr. Veilleux expressed the reluctance of the
owners of the Polo Field to make any expenditure to remedy the
situation. At that time, the Town made no effort to force the
owners to take action and took no action of its own. When the
problem recurred, the Town, through Mr. Jones of the Board of
Health, approached the Trust seeking permission to go onto the land
to remedy the situation. The Trustees were not ordered to solve the
problem themselves, nor were they being informed of the Town's
intent to enter the land under some statutory authority to do so.
Mr. Wheatley's response was reasonable the Trust - permission would
be granted as long as no liability would be incurred by the Trust,

Therefore, the position of the Trust in regard to the clearing
of the land, as expressed by Mr. Wheatley to Mr. Jones, was clear;
the Trust expected to be absolved of any liability. This position
was made clear in the Agreement presented to the Selectmen at their
meeting of September 27, 1982. Mr, MacMullen, the town counsel, was
present at that meeting and was given the Agreement to "read over"
prior to the Selectmen's signing on behalf of the Town. The record
contains no evidence that Mr. MacMullen, whom the Board of
Selectmen is expected to consult on such matters, had any objection
to the terms of the Agreement or a substantially similar document
offered by Mr. Skinner. In fact, when later asked to rule on the
ability of the Town to recover from the owners of the Polo Field
the $5,000 spent on the clearing, Mr. MacMullen revealed that it was
not a recoverable expense, being the result of natural causes.


The Town was faced with what it considered an emergency
situation requiring immediate attention. The steps taken by all
Town officials toward remedying the problem are consistent with
reasonable efforts to provide a rapid solution. Even if the town
had the statutory authority to force the owners to pay for the
clearing, the approval of the waiver by the Selectmen, whether
resulting from bad advice, wasteful haste, or a legitimate desire
to quickly remedy a bothersome and unhealthy situation, was not
unwarranted in light of all the facts surrounding that decision.
As a result, Respondent did not violate s.23(d).


ORDER


On the basis of the foregoing the Commission concludes that
the Respondent did not violate G.L. c.268A, s.s.19 and 23(d), and
orders that the Show Cause Order of March 23,1983 be dismissed.

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

[1] As of March 29,1983. M.G.L. c. 268A, s. 23(d) was renumbered
M.G.L. c. 268A, s. 23(paragraph 2)(2). See St. 1982, c. 612.

[2] Section 19 states, in relevant part, that "a municipal employee
who participates as such an employee in a particular matter in
which to his knowledge he or a business organization in which he
is serving as officer, director or employee has a financial
interest violates this section.

[3] As of March 29, 1983, petitions of cities, towns, counties and
districts for special laws related to their governmental
organizational powers, duties, finances and property have also been
excluded from this definition. See, St. 1982, c. 612, s.1.

[4] The effect on "future use" in this case is significant only as
it relates to an effect on the sale of the Polo Field because the
financial interest of Mr. Chase and Chase Real Estate is solely in
connection with that sale. Any effect on future use of the land
not relative to the sale between these parties is irrelevant to the
s.19 allegations.

[5] Section 23(d) states that "no municipal employee shall... use
or attempt to use his official position to secure unwarranted
privileges or exemptions for himself or others."


End Of Decision