Docket No. 442

In the Matter of David Crossman

May 22, 1992

Disposition Agreement




This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and David Crossman (Mr.
Crossman) pursuant to s. 5 of the Commission's Enforcement
Procedures. This Agreement constitutes a final Commission order
enforceable in the Superior Court pursuant to G.L. c. 268B, s.
4(j).

On November 14, 1990, the Commission initiated, pursuant to
G.L. c. 268B, s. 4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by Mr.
Crossman. The Commission concluded its inquiry and, on July 11,
1991, voted to find reasonable cause to believe that Mr. Crossman
violated G.L. c. 268A, s. s. 17, 18, 19 and 23.

The Commission and Mr. Crossman now agree to the following
findings of fact and conclusions of law:

1. Mr. Crossman served on the Hudson Conservation Commission
(ConCom) from May 1984 until June 1989. This was an unpaid,
part-time position. Mr. Crossman was the chairman of the ConCom
from 1986 until he resigned from the ConCom on June 12, 1989. As a
member of the ConCom, Mr. Crossman was a special municipal employee
as that term is defined in G.L. c. 268A, s. 1(n).

2. During the times here relevant, Mr. Crossman was
self-employed as an engineer and was the president and owner of the
engineering firm B&C Associates (B&C). During the period here
relevant, Mr. Crossman and B&C had one employee, Jim Fougere
(Fougere), who was hired by Mr. Crossman in June 1988. Ninety
percent of B&C's clients hire B&C to do environmental consulting
work relating to the state Wetlands Protection Act.

3. In early spring 1989, the Hudson Portuguese Club (the Club)
began widening a soccer field on its property on Port Street in
Hudson, resulting in the destruction of wetlands. As ConCom
chairman, Mr. Crossman, on April 10, 1989, signed and issued a
ConCom Enforcement Order to the Club ordering the Club to
immediately cease and desist from all work in wetlands on its
property.[1]

4. On April 13, 1989, B&C was hired by Robert Veo (Veo) of
Veo Associates (an engineering firm) to delineate the wetlands on
the Club site.[2] Mr. Crossman made the decision for B&C to accept
the contract for the Club work, however, Fougere actually did the
engineering work on the Club project for B&C. Fougere began the
Club work on April 13, 1989, which consisted primarily of the
determination of the extent of the wetlands which had existed on
the Club property prior to the illegal construction work. Fougere
did additional work at the Club site on April 28, 1989. On May 3,
1989, Fougere went to a ConCom public hearing regarding the Club
matter, and on May 6, 1989, Fougere attended a ConCom

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site walk at the Club site. On May 17, 1989, a second public
hearing was held on the Club matter at which Fougere and Veo made
a presentation to the ConCom on behalf of the Club. On that same
date, the ConCom issued an Order of Conditions to the Club. Mr.
Crossman did not participate in the ConCom public hearings or in
the issuance of the Order of Conditions to the Club. B&C did a
substantial amount of additional work on the Club project after May
1989. During August, September and October 1989, B&C did a total of
over 25 hours of work on the Club project.

5. Although B&C was hired by Veo for the Club work, B&C billed
and was paid by the Club directly. On May 26, 1989, B&C billed the
Club $360 for the work it did in April and May 1989. B&C received
payment in full on June 14, 1989. In September 1989, B&C billed the
Club $912.50 for the additional work done after May 1989, which
amount was paid on October 20, 1989. On November 3, 1989 B&C billed
the Club a further $187.50, which was paid on November 16, 1989.
Mr. Crossman personally received a substantial portion of the fees
billed and received by B&C for the work on the Club matter in 1989.
All B&C billing was done and payments received by Mr. Crossman.

6. General Laws c. 268A, s. 17(a), impertinent part, prohibits
a municipal employee from, otherwise than as provided by law for
the proper discharge of official duties, directly or indirectly,
requesting or receiving compensation from anyone other than the
municipality in connection with a particular matter of direct and
substantial interest to that municipality.[3] For a special
municipal employee, such as Mr. Crossman, s. 17's prohibitions
apply only in relation to particular matters (a) in which the
employee has participated, as such, or (b) which are or within one
year have been the subject of his official responsibility, or (c)
which are pending in his municipal agency.[4]

7. The ConCom's proceedings relating to the Club's destruction
of wetlands were a particular matter in which the Town of Hudson
had a direct and substantial interest. As set forth above, Mr.
Crossman participated in those proceedings as a ConCom member.

8. By B&C's May 26, 1989 billing of $360 for the April and May
1989 work on the Club matter, which was either done by Mr. Crossman
or under his direction and control, Mr. Crossman, while a municipal
employee, indirectly requested compensation from someone other than
the Town of Hudson in relation to a particular matter of direct and
substantial interest to that municipality in which Mr. Crossman had
participated as a municipal employee. In so doing, Mr. Crossman
violated G.L. c. 268A, s. 17(a).

9. General Laws c. 268A, s. 18(a) prohibits a former municipal
employee from receiving compensation, directly or indirectly, from
anyone other than the municipality in connection with any
particular matter in which the municipality is a party or has a
direct and substantial interest and in which the former municipal
employee participated while so employed.

10. By, in June, October and November 1989, after Mr. Crossman
had ceased to serve as a ConCom member, receiving compensation from
the Club, indirectly through B&C, for work done by B&C for the
Club, Mr. Crossman, as a former municipal employee, received
compensation from someone other than the Town of Hudson in
connection with a particular matter in which that municipality had
a direct and substantial interest and in which Mr. Crossman had
participated as a municipal employee. In so doing, Mr. Crossman
violated G.L. c. 268A, s. 18(a).

11. General Laws c. 268A, s. 19, in relevant part, prohibits
a municipal employee from participating, as such, in a particular
matter in which he or a business organization in which he is
serving as an officer, director or employee has a financial
interest.

12. In that B&C's work for the Club was occasioned by the
ConCom Enforcement Order issued by Mr. Crossman on April 10, 1989,
B&C (and Mr. Crossman) clearly had a financial interest in the
ConCom's ratification of that order on April 19, 1989. Thus, Mr.
Crossman's participation as a ConCom member in the ConCom's vote to
confirm the Enforcement Order to the Portuguese Club violated s.
19.

13. Section 23(b)(3) prohibits a municipal employee from
acting in a manner which would cause a reasonable person, having
knowledge of the relevant circumstances, to conclude that any
person can improperly influence or unduly enjoy his favor in the
performance of his official duties, or that he is likely to act or
fail to act as a result of kinship, rank, position, or the undue
influence of any party or person.[5]

14. By undertaking to have B&C provide engineering services to
the Club after he had acted officially concerning the Club as a
ConCom member and while the

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Club matter was pending before the ConCom, Mr. Crossman acted in a
manner which would cause a reasonable person, with knowledge of the
relevant circumstances, to conclude that Mr. Crossman could be
improperly influenced in the performance of his official duties. In
so doing, Mr. Crossman violated s. 23(b)(3).

15. During the time that Mr. Crossman was a ConCom member
after he formed B&C in 1985, Mr. Crossman repeatedly contracted
with private parties to have B&C perform Wetlands Act consulting
work in Hudson in connection with matters which were subject to his
official responsibility as a ConCom member.[6] For example: (a)
between March 1988 and October 1989, B&C delineated wetlands and
did other engineering consulting work on the Indian Rock
project on Manning Street, Hudson, which was the subject of a
ConCom Order of Conditions issued in 1985. B&C billed
its private client a total of over $3,800 for this work prior
to June 1989 and received a substantial partial
payment of the billed amount during that period;
(b) in December 1988, B&C billed and received payment in
the amount of $75 for wetlands delineation work done for Hugo
Guidotti on his property off Brigham Street in Hudson. At that
time, Guidotti was seeking an Order of Conditions from the ConCom
for the construction of a single family home on the property; and
(c) on June 9, 1989, B&C received payment of approximately $100 for
engineering services done in May 1989 at the Casaceli Trucking site
in Hudson in connection with a May 1989 ConCom Enforcement Order in
whose issuance Mr. Crossman had participated. Mr. Crossman did
these billings and received these payments for B&C. In requesting
and receiving compensation for these and other projects, Mr.
Crossman, while a special municipal employee, requested and
received compensation from someone other than the Town of Hudson in
connection with particular matters in which that municipality was
a party and had a direct and substantial interest and which were
the subject of his official responsibility. In so doing, Mr.
Crossman violated s. 17(a).

In view of the foregoing violations of G.L. c. 268A by Mr.
Crossman, 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 Mr. Crossman:

1. that Mr. Crossman will pay to the Commission the sum of two
thousand dollars ($2,000.00) as a civil penalty for violating G.L.
c. 268A; and

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

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[1] On April 19, 1989, the ConCom, with Mr. Crossman present
and presiding as chairman, unanimously voted to confirm the
Enforcement Order issued to the Club by Mr. Crossman.

[2] The purpose of such a wetlands delineation is to ascertain
whether there are wetlands present subject to ConCom jurisdiction
and to determine the parameters of those wetlands.

[3] The statute defines "particular matter" as "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 and petitions
of cities, towns, counties and districts for special laws related
to their governmental organizations, powers, duties, finances and
property." G.L. c. 268A, s. 1(k).

[4] Clause (c) does not apply in the case of a special
municipal employee who serves on no more than 60 days during any
period of 365 consecutive days.

[5] Section 23(b)(3) provides further that, "It shall be
unreasonable to so conclude if such officer or employee has
disclosed in writing to his appointing authority or, if no
appointing authority exists, discloses in a manner which is public
in nature, the facts which would otherwise lead to such a
conclusion." No such disclosure was made by Mr. Crossman in
connection with his actions affecting the Club and B&C.

[6] From 1987 through 1990, B&C did approximately 36 private
jobs in Hudson.

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