Docket No. 610

In the Matter of David Carignan

Date: December 27, 2000

Disposition Agreement


This Disposition Agreement is entered into between the State
Ethics Commission and David Carignan pursuant to Section 5 of the
Commission's Enforcement Procedures. This Agreement constitutes a
consented-to order enforceable in the Superior Court, pursuant to
G.L. c. 268B, s.40).

On September 23, 1998, the Commission initiated, pursuant to
G.L. c. 268A, s.4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by
Carignan. The Commission has concluded its inquiry and, on August
23, 2000, found reasonable cause to believe that Carignan violated
G.L. c. 268A, s.23.

The Commission and Carignan now agree to the following
findings of fact and conclusions of law:

1. Carignan is, and was at all times here relevant, the
Falmouth health agent. Carignan was appointed to this full-time,
salaried position by the Falmouth Board of Health ("Board of
Health") in 1982.

2. In June 1997, Duco Associates, Inc. ("Duco"), foreclosed on
a property (including land and an unfinished house) located at 10
Brantwood Road, Falmouth, as to which Duco was the first mortgagee.
Duco hired a contractor, Margaret Fitzgibbon, who completed the
house. A buyer for the house was found and a closing was scheduled
for September 26, 1997.

3. Because 10 Brantwood Road was a newly constructed house, a
certificate of occupancy and compliance ("occupancy certificate")
issued by the Falmouth Building Department ("Building Department")
was required to proceed with the closing. An occupancy certificate
for a new house is normally issued by the Building Department after
several municipal departments, including the Board of Health, sign
their approval on the building permit card.

4. One of Carignan's duties as health agent is to sign, or to
authorize an assistant to sign, building permit cards on behalf of
the Board of Health. Carignan's practice is not to sign, or
authorize the signing of, the building permit card until he has
received an "as-built card" showing the location of the septic
system as installed.[1] According to Carignan, his practice is to
require that the as-built card be prepared by the installer of the
septic system based upon Carignan's understanding of Title 5, the
state code of regulations dealing with septic systems[2] Carignan
has, however, discretion as health agent to deviate from this
practice in appropriate circumstances. For example, Carignan can
(and indeed must under Title 5) accept an as-built card from the
septic system designer in place of one from the installer.

5. The septic system at 10 Brantwood Road, designed by the
Falmouth engineering firm Ferreira Associates, was installed by
Falmouth excavation contractor and town-licensed septic system
installer Carl F. Cavossa, Jr., pursuant to a March 30,1995 Board
of Health permit. The system was inspected and approved in
compliance with Title 5 by the Board of Health on July 1, 1996,
nearly one year prior to Duco's taking the property by foreclosure.

6. At the time of the foreclosure, Cavossa had not been paid
for his installation of the septic system at 10 Brantwood Road. The
builder upon whom Duco foreclosed owed Cavossa. several thousand
dollars for the work. Duco, in taking the property by foreclosure,
did not legally owe Cavossa anything for his work at 10 Brantwood
Road.

7. As of September 1997, no as-built card had been filed with
the Board of Health for the 10 Brantwood Road septic system. Duco's
contractor, Fitzgibbon, attempted to obtain the as-built card from
Cavossa. Fitzgibbon offered Cavossa $500 for the card. Cavossa
refused Fitzgibbon's offer and told Fitzgibbon that he wanted to be
paid what he had lost on the 10 Brantwood Road septic system
installation before he would provide the as-built card.

8. Because of Cavossa's refusal to provide the as-built card,
Fitzgibbon paid another licensed septic system installer $150 to go
to 10 Brantwood Road, locate the septic system components with the
aid of the original design plans, and prepare a substitute as-built
card.

9. On September 23, 1997, Fitzgibbon took the substitute
as-built card for the 10 Brantwood Road septic system to the Board
of Health's office. Carignan, however, refused to accept the
substitute as-built card. Fitzgibbon then told Carignan that she
previously had submitted a substitute as-built card for another new
house in Falmouth to the Board of Health under similar
circumstances and the card was accepted. Carignan responded that
the earlier substitute as-built card had been accepted in error and
that he would only accept an as-built card for the 10 Brantwood
Road septic system prepared by the system installer, Cavossa.
Fitzgibbon then told Carignan that she had offered Cavossa $500 for
the card and Cavossa had refused to provide it. Carignan responded
by telling Fitzgibbon that the Board of Health would not sign the
building permit card unless he was provided with an as-built card
from Cavossa.

10. According to Carignan, after talking with Fitzgibbon he
telephoned Cavossa and asked for the as-built card for 10 Brantwood
Road. Cavossa told Carignan that he would not provide the card
because he had not been paid for his work at 10 Brantwood Road.
Carignan took no further action to obtain the as-built card from
Cavossa.

11. Fitzgibbon reported her conversation with Carignan to
Duco's attorney, Stuart N. Cole. On September 24, 1997, Cole
telephoned Carignan and asked him why the Board of Health had not
signed the building permit card for 10 Brantwood Road so that the
occupancy certificate could be issued by the Building Department.
Carignan responded by stating his position that an as-built card
from the original installer, Cavossa, must be provided to the Board
of Health before the Board would sign off on the issuance of the
occupancy permit. Carignan and Cole then discussed the fact that
Cavossa had not been paid for his work at 10 Brantwood Road and was
refusing to provide the as-built card unless he were paid. Carignan
stated words to the effect that it was unfair and immoral that
Cavossa had not been paid for his work. Cole attempted to explain
to Carignan that Cavossa was not owed payment for his work by Duco,
but by the builder upon whom Duco had foreclosed. The conversation
then ended and Cole informed Fitzgibbon of the conversation's
substance.

12. Based upon their respective conversations with Carignan,
Fitzgibbon and Cole reasonably understood (a) that Carignan
believed that Duco should compensate Cavossa for his work at 10
Brantwood Road, and (b) that the Board of Health would not sign off
on the issuance of the occupancy permit unless Duco paid Cavossa to
provide the as-built card to the Board[3]

13. As a result of the above-described conversations between
Carignan and Fitzgibbon and Cole, Cole contacted Cavossa and
subsequently negotiated with Cavossa and Cavossa's attorney to have
Cavossa provide the as-built card in return for Duco's payment of
$2,500, plus Duco's general release of Cavossa from all liability.

14. On September 26, 1997, Duco paid Cavossa $2,500 and provided
him with the general release. Cavossa then delivered the as-built
card for 10 Brantwood Road to the Board of Health. Carignan
thereupon signed or authorized an assistant to sign the 10
Brantwood Road building permit card on behalf of the Board of
Health. The Building Department then issued the occupancy
certificate for 10 Brantwood Road.

15. Apart from telephoning Cavossa, Carignan did not take any
action as health agent to assist Duco and its representatives,
Fitzgibbon and Cole, in satisfying Carignan's requirement that a
septic system as-built card for 10 Brantwood Road be submitted to
the Board of Health before the Board would sign the building permit
card. First, Carignan did not offer Fitzgibbon or Cole any way of
obtaining the Board of Health's building permit card sign-off other
than obtaining and submitting an as built card from Cavossa.
Carignan did not, for example, inform Fitzgibbon that he could, in
his discretion as health agent, accept an as-built card from the
engineering firm that had designed the 10 Brantwood Road septic
system.[4] Second, Carignan did not inform Fitzgibbon or Cole that
Duco could appeal Carignan's actions to the Board of Health.[5]
Finally, Carignan did not bring to bear any official pressure on
Cavossa, as a town-licensed septic system installer, to submit the
as-built card to the Board of Health.[6]

16. As Falmouth health agent, Carignan is a municipal employee
as defined in G.L. c. 268A, s.1. As such, Carignan is subject to
the provisions of the conflict of interest law, G.L. c. 268A.

17. Section 23(b)(2) of G.L. c. 268A prohibits a municipal
employee from, knowingly or with reason to know, using or
attempting to use his official position to secure for himself or
anyone else unwarranted privileges or exemptions of substantial
value which are not properly available to similarly situated
individuals.

18. Carignan's above-described actions and failures to act as
health agent, under the then-existing circumstances, caused and
compelled Duco to pay Cavossa money for the 10 Brantwood Road
as-built card that it did not owe. Under the circumstances, and
regardless of his motive in acting and failing to act as he did,
Carignan had reason to know that his conduct as health agent would
force Duco to pay Cavossa money that it did not owe in order to
obtain the as-built card from Cavossa that Carignan insisted the
Board of Health receive before it would sign off on the building
permit for the issuance of the occupancy permit for 10 Brantwood
Road.

19. Carignan's above-described conduct as health agent in
effect secured for Cavossa a special advantage in Cavossa's
dealings with Duco concerning the amount that Duco would have to
pay Cavossa for the as-built card. This advantage was a privilege
within the meaning of G.L. c. 268A, s.23(b)(2) and was of
substantial value in that it was the leverage that helped Cavossa
obtain from Duco $2,000 more for the as-built card than originally
offered by Fitzgibbon. The advantage was further unwarranted and
not properly available to similarly situated persons because a
private citizen, like Cavossa, does not have any right or other
lawful claim to Carignan's help as health agent in obtaining
payment from any other private citizen, particularly under
circumstances where no payment is legally owed.

Page 988

20. Therefore, Carignan, as health agent, by his
above-described conduct, effectively and with reason to know, used
his official position to secure for Cavossa an unwarranted
privilege of substantial value which was not properly available to
similarly situated individuals. In so doing, Carignan violated G.L.
c. 268A, s.23(b)(2).[2]

21. Section 23(b)(3) of G.L. c. 268A prohibits a municipal
employee from, knowingly or with reason to know, acting in a manner
which would cause a reasonable person, with knowledge of the
relevant circumstances, to conclude that any person can improperly
influence or unduly enjoy the employee's favor in the performance
of the employee's official duties, or that the employee is likely
to act or fail to act as a result of kinship, rank, position or
undue influence of any person or party. Section 23(b)(3) further
provides that the section is not violated if the employee "has
disclosed in writing to his appointing authority ... the facts
which would otherwise lead to such a conclusion."

22. Carignan, by his above-described actions and omissions as
health agent, which caused and compelled Duco to pay Cavossa $2,500
that it did not owe, acted, with reason to know, in a manner which
would cause a reasonable person, with knowledge of the relevant
circumstances, to conclude that Cavossa could unduly enjoy
Carignan's favor in the performance of his official duties. In so
doing, Carignan violated G.L. c. 268A, s.23(b)(3).[8]

In view of the foregoing violations of G.L. c. 268A by
Carignan, the Commission has determined that the public interest
would be served by the disposition of this matter without further
enforcement proceedings, on the basis of the following terms and
conditions agreed to by Carignan:

(1) that Carignan pay to the Commission the sum of $1,000 as
a civil penalty for violating G.L. c. 268A; and

(2) that Carignan waive all rights to contest the findings of
fact, conclusions of law and terms and conditions contained in
this Agreement in this or any other related administrative or
judicial proceeding to which the Commission is or may be a
party.

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[1] The as-built cards required and accepted by Carignan are
typically three by five inch index cards with, on one side, a
diagram of the septic system with distances shown to the house
foundation and, on the other side, the property address, the names
of the installer and the town inspector, the permit number, the lot
number, the septic tank and leaching sizes, the ground water level,
the number of bedrooms, whether there is a disposal, whether there
is town water or a private well, and the date the system was
installed. The as-built cards are not signed.

[2] Title 5 in fact contains no requirement for the
installer's submission of an as-built card. Title 5 instead
requires that the installer and designer each "certify in writing
on a form approved by the Department that the system has been
constructed in compliance with [Title 5], the approved design plans
and all local requirements, and that any changes to the design
plans have been reflected on as-built plans which have been
submitted to the approving authority by the Designer prior to the
issuance of a Certificate of Compliance" (emphasis added). 310 CMR
15.021(3). According to Carignan, he requires the as-built card
from the installer based upon Title 5's requirement that the septic
system installer make the certification set forth above. The
as-built cards required and accepted by Carignan do not, however,
contain any certification language and, as stated above, are not
signed.

[3] According to Carignan, he did not intend his statements to
be so understood. The Commission makes no finding as to Carignan's
actual motives, as no such finding is required for the resolution
of his matter.

[4] As set forth in footnote 1 above, Title 5, to the degree
it requires a septic system "as-built," requires "as-built plans"
submitted by the system designer.

[5] According to Carignan, although he would normally have
informed Cole and Carignan of Duco's right to appeal his action to
the Board of Health, he did not do so because his conversations
with them were heated and adversarial.

[6] As the local licensing and permitting authority for septic
system installers (including Cavossa) and septic system
installations, respectively, the Board of Health has the power to
require installers to comply with Title 5 and local regulations,
including the certification equipment of 310 CMR s. 15.021(3)
(which under Carignan's practice was met by the installer's
submission of the as-built card) under threat of possible sanctions
including the loss of license or the denial of further permits to
install septic systems. Thus, Carignan, as health agent, was in a
position to compel Cavossa to provide the board of Health with the
as-built card for 10 Brantwood Road. According to Carignan,
however, he did not see it as part of his role as health agent to
in any way pressure Cavossa to provide the as-built card.

[7] This is true even if Carignan did not intend to help
Cavossa because Carignan had reason to know that under the
circumstances, his actions and omissions as health agent would have
the effect of helping Cavossa.

[8] Carignan did not make the disclosure to his appointing
authority required to avoid a violation of G.L. c. 268A,
s.23(b)(3).

Page 989

End of Decision