Docket No. 637

In the Matter of Edward Fennelly

August 21, 2001

Disposition Agreement





The State Ethics Commission and Edward Fennelly enter into
this Disposition Agreement pursuant to section 5 of the
Commission's Enforcement Procedures. This Agreement constitutes a
consented-to final order enforceable in the Superior Court pursuant
to G.L. c. 268B, s.4(j).

On June 23, 1999, the Commission initiated, pursuant to G.L.
c. 268B, s.4(a), a preliminary inquiry into possible violations of
the conflict of interest law by Fennelly. The Commission concluded
that inquiry, and on March 1, 2001, found reasonable cause to
believe that Fennelly violated G.L. c. 268A.

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

Findings of Fact

At all times relevant, Fennelly served on the Tyringham Board
of Selectmen ("BOS").

As such, he was a municipal employee within the meaning of s.
1 of the conflict of interest law, GL. c. 268A.

1. The selectmen also serve as the Board of Health ("BOH").

2. Peter Curtin and Fennelly are close friends. Curtin is also a
selectman.

3. Curtin was employed as a caretaker for a property in
Tyringham.

4. In summer 1997, a pond located on the property was dredged.

5. At the September 25, 1997 meeting, the BOH decided that the
silt from the pond dredging would be dumped at the Tyringham
Transfer Station ("TTS").

6. On September 27, 1997, Curtin arranged to have the silt
dumped at the TTS.

7. Shortly thereafter a heavy rain caused the silt to
"run-off' and damage nearby wetlands.

8. A local restaurant owner, Donald Hale, complained to the
Division of Environmental Protection about the damage. The DEP
eventually fined Curtin for the illegal dumping.

9. Shortly after Hale complained to the DEP about the silt
run-off. (a) Fennelly confronted Hale about his complaint to the
DEP regarding the silt-run-off, and told Hale that he could shut
down Hale's restaurant if he wanted to;[1] and (b) Fennelly, as a
Board member, requested local and state health and building
inspections of Hale's restaurant. All the inspections were within
the authority of the Board to order.

Conclusions of Law

10. Section 23(b)(3) prohibits a municipal employee from
knowingly, or with reason to know, 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 undue influence of any party Or person.

11. By, as a Board member, requesting inspections of Hale's
restaurant shortly after Hale complained about Curtin's dumping,
while Curtin was Fennelly's close friend and colleague, and, after
stating that he could shut down Hale's restaurant if he wanted,
Fennelly acted in a manner which would cause a reasonable person
knowing all of these facts to conclude that he was improperly
influenced in the performance of his officials duties by his
friendship and association with Curtin. Therefore, Fennelly
violated s.23(b)(3).

Resolution

In view of the foregoing violations of GL. c. 268A, 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 Fennelly:

Page 1026


(1) that Fennelly pay to the Commission the sum of $1,500 as
a civil penalty for violating G.L. c. 268A, s.23(b)(3); and

(2) that Fennelly 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] According to Fennelly, he believed that Hale had not
remedied past health code violations at his restaurant.