Case No.: 110


Doc. Type: Agreements


Parties: IN THE MATTER OF JAMES J. CRAVEN, JR.


Appearing: Robert J. Cordy, Esquire: Counsel to the Petitioner Lawrence F. O'Donnell, Esquire: Counsel to the Respondent


Commissioners: Vorenberg, Ch.; Kistler; Brickman; Bernstein; McLaughlin


Date: June 18, 1980

DECISION AND ORDER


We find that the Respondent, Representative James J. Craven,
violated Section 6 and 23(d) of Chapter 268A and order that he pay
a civil penalty in the amount of $1,000 within 30 days of the
issuance of this Decision.[1]
I. Procedural History

On November 29, 1979, the Petitioner filed an Order to Show
Cause alleging that the Respondent, James J. Craven, Jr., had
violated Sections 2(b), 6, and 23(d) of Massachusetts General Laws
Chapter 268A, the state's conflict-of-interest law. The Respondent
filed his Answer to that Order on December 20, 1979, denying that
he had violated those provisions.

An evidentiary hearing was held in this matter on March 10 and
11, 1980, before James Vorenberg, Chairman of the Commission. See
Mass. G.L. c. 268B, s.4(c).[2] Post-hearing briefs were filed by
counsel. Each Commissioner received copies of the transcript of the
proceeding and of all exhibits, together with copies of the briefs.
Oral argument before the full Commission occurred on April 30,
1980. Each of the Commissioners participating in this Decision and
Order has heard and/or read the evidence and arguments presented
by the parties.


II. Findings of Fact


1. James J. Craven, Jr. has been an elected member of the
Massachusetts House of Representatives representing parts of
Roxbury, Jamaica Plain and Roslindale from 1957 to the present.


2. James J. Craven, Jr. has been a member of the Ways and
Means Committee of the Massachusetts Mouse of Representatives from
1957 to the present.


3. The Ways and Means Committee of the Massachusetts House of
Representatives evaluates and makes recommendations to the full
House on the budget requests of all state agencies. These
recommendations carry great weight with the full House membership.


4. In 1976 Representative Craven assisted some associates in
the formation of a community development corporation in Jamaica
Plain, known as the Jamaica Plain Community Development Foundation,
Inc. (JPCDF), by recruiting members of the Hispanic community in
Jamaica Plain to serve on its Board of Directors.

Page 18

5. JPCDF was incorporated in April of 1977. The first
Executive Director of JPCDF was Cornelius Joseph Doyle. Mr. Doyle
was, from November, 1976, through June, 1979, employed by the Rules
Committee of the Massachusetts House of Representatives and
assigned to Representative James J. Craven.[3]


6. In the late summer or fall of 1978 Representative Craven
assisted JPCDF in its efforts to obtain government funds by
advising persons associated with that organization of the
availability of grant monies in the budgets of the Massachusetts
Department of Youth Services (DYS) and Department of Community
Affairs (DCA) and by arranging and attending a meeting between DYS
Commissioner Calhoun and representatives of JPCDF.


7. In December of 1978, JPCDF was awarded an $18,000 contract
by DYS. That contract was cancelled in June, 1978, because DYS
officials determined that there was a conflict-of-interest involved
in the award.


8. In the spring of 1979, JPCDF was tentatively awarded one
$40,000 contract and one $24,500 contract from the City of Boston.
Both awards were subsequently cancelled.


9. In August or September of 1978, Representative Craven
arranged and attended a meeting in the offices of the Massachusetts
House Ways and Means Committee. Also attending were Cornelius
Joseph Doyle, then Executive Director of JPCDF, William Flynn, then
Secretary of the Executive Office of Communities and Development
of the Commonwealth of Massachusetts (EOCD), and Paul Collis, then
William Flynn's legislative assistant. At this meeting
Representative Craven recommended that JPCDF be funded by EOCD.
Secretary Flynn advised Representative Craven at this meeting that
there were several EOCD programs, including the Urban Reinvestment
Study (URS) Program, under which JPCDF could apply for funding.


10. In November, 1978, Representative Craven attended another
meeting with Secretary Flynn in the Ways and Means Committee
offices. Several other state legislators representing portions of
the City of Boston were also in attendance at this meeting. The
subject of this meeting was the funding by EOCD of community
development groups in Boston. Secretary Flynn advised the persons
present at this meeting that there were three EOCD programs,
including the URS Program, under which Boston groups could apply
for funding.


11. During the fall of 1978, DCA, a state agency within the
jurisdiction of EOCD, was implementing a $150 million program which
could not proceed to the actual construction phase until the
Massachusetts House Ways and Means Committee approved a schedule
submitted to it by DCA. This schedule was pending before the Ways
and Means Committee of which Representative Craven was a member at
the time that the two meetings described in Paragraphs 9 and 10
above took place, a fact of which Secretary Flynn was aware.


12. On November 21, 1978, James J. Craven, Jr. attended a
meeting at the DCA offices located at 10 Tremont Street in Boston.
Also in attendance were Cornelius Joseph Doyle, then Executive
Director of JPCDF, two professionals who were to conduct the
research for JPCDF in the event that it received a URS grant from
DCA (Dr. Janet Duncan, Associate Professor of Geography at Boston
State College, and Dr. John Shea, also affiliated with Boston State
College), and two DCA staff members who would review any proposal
submitted by JPCDF for a URS grant (Gerald Tuckman, Director of the
DCA office of Resource Development, and Jeanne Myerson, Community
Economic Coordinator in that office). Gerald Tuckman described at
this meeting the Request for Proposals for the Department's URS
grants and explained that the RFP had been circulated to a number
of groups throughout the state.


13. In the course of this November 21, 1978 meeting,
Representative Craven strongly pressed the DCA staff members
present to award a URS grant to JPCDF and indicated that the DCA
budget might be adversely affected if that award were not made.

14. Gerald Tuckman knew of Representative Craven's position
on the House Ways and Means Committee and was very concerned about
Craven's comments at the November 21, 1978 meeting. Tuckman
reported the occurrence to

Page 19

his immediate supervisor. David Entin, that same day. Mr. Entin
knew of Craven's position on the Ways and Means Committee and was
concerned about the reported reference by Representative Craven to
the DCA budget, since he views DCA as primarily a public housing
agency serving many people in need. Entin subsequently advised
Secretary Flynn and Gerald W. Hayes, Assistant Secretary of EOCD,
of Representative Craven's reference to the DCA budget. Mr. Hayes
was aware that DCA had programs that could not get under way
without Ways and Means approval of schedules and took David Entin's
report of Representative Craven's reference to the DCA budget very
seriously.

15. On December 1,1978, JPCDF submitted to DCA a proposal for
a URS grant. DCA received six other proposals for the $30,000. in
URS monies. All seven proposals were reviewed and evaluated by
Gerald Tuckinan, Jeanne Myerson, Jack Kittredge, an expert in
community investment with the Social Economic Council, and Harriet
Tagget, an official in the Banking Commissioner's office. They were
evaluated on the basis of the criteria set forth in the Request for
Proposals prepared by the DCA staff.

16. As a result of these evaluations, the DCA staff submitted
to Secretary Flynn a recommendation that three of the groups
receive grants, in the amount of $10,000 each. Those three groups
were the Community Union Rural Development, Inc., in Greenfield,
Massachusetts, the Jamaica Plain Banking and Mortgage Committee,
Inc., and the Southeastern Massachusetts Advocacy Center in New
Bedford, Massachusetts. In making this recommendation, the staff
noted that a fourth proposal, that from the Brightwood Neighborhood
Council, Inc., in Springfield, was of very high quality, but was
not as good as the other three. The staff did not recommend that
JPCDF receive funding under the URS program because JPCDF did not
propose the creation of strategies to deal with disinvestment, as
required by the RFP.

17. Gerald Hayes subsequently informed David Entin that he
had discussed the URS proposals with Secretary Flynn and that they
had decided to fund two of the groups recommended for funding by
the staff - namely, the Community Union Rural Development, Inc. and
the Jamaica Plain Banking and Mortgage Committee, Inc. - and
tentatively to commit funds to JPCDF subject to their improving
their proposal to meet the program requirements. The contacts made
by Representative Craven with EOCD officials relative to JPCDF and
the concern generated by those contacts over the implications for
the DCA budget of failing to award a grant to JPCDF were major
factors leading to this decision tentatively to commit funds to
JPCDF.

18. Cornelius Joseph Doyle and Representative Craven were
notified by letter dated January 2, 1979, from Secretary Flynn
that an award of $10,000 in URS monies had been approved subject to two
alterations in the program design.

19. When Secretary Flynn was replaced by Secretary Matthews
in January of 1979, the latter agreed to award all grants to which
Flynn had committed EOCD. On April 30, 1979. Secretary Matthews
signed the $10,000 contract between DCA and JPCDF.

20. By the spring of 1979, then, JPCDF had been tentatively
or finally awarded $92,500 in state and city funds.

21. On May 5,1977, Representative Craven and four of his
brothers established the Celtic Realty Trust. Representative Craven
and the four brothers were named as beneficiaries of the Trust.
Albert Buchwald, who was then serving as President of JPCDF. and
John Lawless, a Director of JPCDF. were named as Trustees of the
Trust. Also in May of 1977, the Celtic Realty Trust purchased the
building located at 2-16 Hyde Park Avenue, Jamaica Plain (the
"Minton Building"). In the fall of 1977, Representative Craven
assigned his 20 percent beneficial interest in the Celtic Realty
Trust to his daughter, Theresa Craven. The other four beneficial
interests remained unchanged throughout 1978 and 1979.

22. During the fall of 1978, it was the intention of JPCDF to
use some portion of the URS grant, if received, to pay rent on
office space in the Minton Building. Representative Craven was,
during the period of time that he was arranging and attending
meetings with EOCD officials relative to JPCDF, aware of this
intention.

23. The proposal submitted to DCA by JPCDF for URS funds
called for, and the contract ultimately awarded to JPCDF
authorized, the expenditure of some portion of the grant monies on
overhead expenses.

24. JPCDF paid to the Celtic Realty Trust out of the URS grant
monies $490 in rent on

Page 20

space in the Minton Building for the month of June, 1979. JPCDF
subsequently received from Gerald Tuckman of DCA a notice not to
make further expenditures out of the URS grant monies.

III. Decision


The Respondent has been charged with violating three separate
provisions of Chapter 268A - Sections 6, 2(b), and 23(d). We will
address each of these charges separately.

Before turning to the three charges, however, we will discuss
certain preliminary issues.

A. Constitutional Issues

The Respondent lists, in his Brief, six issues relating to the
constitutionality of Chapter 268A and/or Chapter 268B [Arguments
#1-6].[4] The Respondent provides no discussion or citations
relative to these issues and has not, therefore, properly raised
the issues for our consideration. In any event, the Commission has
no authority to adjudicate the constitutionality of Chapters 268A
or 268B, as distinguished from the constitutionality of
applications of either statute to particular facts. See Weinberger
v. Salfi, 422 U.S. 749, 765(1975); Johnson v. Robison, 415 U.S.
361, 367-68(1974); Public Utilities Commission of California v.
U.S., 355 U.S. 534, 539 (1957); Engineers Public Service Co. v.
U.S., 138 F.2d 936, 952-53 (D.C. Cir. 1943), dismissed as moot,
332, U.S. 788(1947); Panitz v. District of Columbia, 112 F.2d 39,
41-42 (D.C. Cir. 1940); Davis, Administrative Law Treatise, s.20.04
at 74(1st ed. 1958). Respondent's issues numbered one through four
and six constitute pure questions of the constitutionality of
legislation acts and are, therefore, not within the jurisdiction
of this Commission. Respondent's issue number five, while posing
a question of constitutional applicability, is again addressed to
the wrong forum. That issue is not relevant in the context of this
civil enforcement proceeding.

B. Respondent's Motion to Dismiss

The Commission rejects the Respondent's conclusion that there
is a lack of probative evidence on the record of any wrongdoing on
his part and accordingly denies the Respondent's Motion to Dismiss
this matter.

C. Standard of Proof

The question has arisen as to what standard of proof applies
to this proceeding.[5] The Petitioner argues for application of the
"preponderance of the evidence" standard. It is settled law that
the "beyond a reasonable doubt" standard of proof need not be
satisfied before sanctions are unposed by an administrative agency.
even where the conduct for which the administrative sanctions are
imposed may also be prosecuted criminally. See Alsbury v. U.S.
Postal Service, 530 F.2d 852, 855 (9th Cir. 1976); Polcover v.
Secretary of the Treasury, 477 F.2d 1223,1231-32 (D.C. Cir 1973);
Kowal v. U.S., 412 F.2d 867, 870 (Ct. Cl. 1969). Proof by a
preponderance of the evidence is the standard generally applicable
to administrative proceedings. See Fairfax Hospital Association
Inc. v. Califano, 585 F.2d 602, 611-12 (4th Cir. 1978); Kephart v.
Richardson, 505 F.2d 1085, 1089 (3rd Cir. 1974); Kent v. Hardin,
425 F.2d 1346, 1349 (5th Cir. 1970). This standard applies to
administrative proceedings in Massachusetts, even where a Sanction
as serious as disbarment is imposed See Matter of Ruby, 328 Mass.
542,547 (1952).

Administrative agencies are occasionally held to a standard
of clear and convincing proof in cases where the potential
consequences to the

Page 21

subject of the adjudicatory proceeding are extremely serious. See,
e.g., Addington v. Texas, 441 U.S. 418(1979) [civil commitment
proceeding]; Woodby v. INS, 385 U.S. 277(1966) [deportation proceeding]; Schneiderman v. U.S., 320 U.S. 118, 125 (1943)
[denaturalization] Collins Sec. Corp. v. S.E.C., 562 F.2d 820, 824
(D.C. Cir. 1977) [deprivation of livelihood by revocation of
broker's license].

Since the sanctions which the Commission may impose upon the
Respondent as a result of this proceeding - namely, civil penalties
and orders to cease and desist[6] - are not nearly as severe as
those involved in the cases requiring a clear and convincing
standard, we hold that the traditional preponderance standard
applies to this proceeding.

D. Single Presiding Commissioner

As was noted in Section I of this Decision, James Vorenberg,
Chairman of the Commission, served as Presiding Officer at the
evidentiary hearing in this matter. The Respondent has objected,
both at the hearing and in his Brief, to the absence of the full
Commission from that hearing. He claims that the procedure followed
was an unconstitutional denial of his right to due process of law
in that "the single Commission member hearing the matter could
recommend criminal prosecution" and "was the same single member
who signed and served upon the Respondent the Order to Show
Cause."[7] The Commission rejects these arguments on the grounds
that the factual allegations upon which they are based are untrue.
A single Commission member has no authority to refer a matter for
criminal prosecution, Since Chapter 268B, Section 2(j) requires the
affirmative votes of three Commission members for any action or
recommendation of the Commission. The Order to Show Cause was
signed by Robert J. Cordy, Associate General Counsel of the
Commission, and not by Chairman Vorenberg. That Order was issued
following a majority vote of the Commission that there existed
reasonable cause to believe that the Respondent had violated
Chapter 268A.

We would point out that the combination of investigative and
adjudicatory functions in one administrative agency is quite
typical and has been upheld by the United States Supreme Court, See
Withrow v. Larkin, 421 U.S. 35, 46-59 (1974). Thus, the issuance
of the Order to Show Cause in this matter by a majority of the
Commission members who were to participate in the ultimate decision
was entirely appropriate. See School Committee of Stoughton v.
Labor Relations Commission, 4 Mass. App. Ct. 262,272, 346 N.E.2d
129, 137 (1976) [". . . the mere issuance of the complaint by the
Commission does not indicate a prejudgrnent of the merits of the
case."].

The Respondent further contends that the denial of his request
for a hearing before the full Commission violated Chapter 268B,
Section 4(c),[8] which authorizes the Commission to initiate
"appropriate proceedings" to determine whether Chapter 268A has
been violated. Contrary to the Respondent's assertion, Section 4(c)
expressly authorizes "any member" of the Commission to "administer
oaths" and to "hear testimony or receive other evidence" in any
proceeding before the Commission. In view of the facts that there
are only five Commission members, that they serve on a part-time
basis, and that evidentiary hearings can be very time-consuming, a
we believe it is reasonable for the Commission to authorize
single members to preside at hearings.

We hold, therefore, that the denial of the Respondent's
request for a hearing before the full Commission did not violate
Chapter 268B, Section 4(c).

E. Section 6

We believe the prosecution has proved, by a perponderance of
the evidence, a violation of Chapter 268A, Section 6. Indeed, we
would reach the same result even were we to apply the more
stringent standard of clear and convincing evidence.

Section 6 embodies what has been described as "the most
obvious of all conflict-of-interest principles" - namely, "that a
public official does not act in his official capacity with respect
to matters in which he has a private stake." W.G. Buss, "The
Massachusetts Conflict-of-Interest Statute: An Analysis," 45 B.U.L.
Rev. 299,353 (1965). That section prohibits a state employee from
knowingly participating in "particular matters" in which he/she or
members of his/her

Page 22

immediate family have a financial interest. It seeks to ensure
honesty in government by preventing state employees from advancing
their own interests or those of family members at the expense of
the public welfare.

The Respondent, being an elected member of the Massachusetts
House of Representatives, is a "state employee" for purposes of
Chapter 268A. The award of the URS contract to JPCDF is a
"particular matter" for purposes of that Chapter. See Chapter 268A,
Section 1(k).

Chapter 268A, Section 1(j) defines "participate" to mean
"participate in agency action or in a particular matter personally
and substantially as a state, county or municipal employee, through
approval, disapproval, decision, recommendation, the rendering of
advice, investigation or otherwise." (Emphasis Supplied) We find
that Representative Craven "participated" in the award of the URS
contract by EOCD to JPCDF by his "recommendation" of JPCDF for
the contract. We also find that he "participated" by injecting
himself into the EOCD "decision" relative to that contract.

We have found that Representative Craven had, during the fall
of 1978, contacts with EOCD officials relative to funding for
JPCDF. At the time of these contacts DCA, an agency within EOCD,
was implementing a $150 million program which could not proceed to
actual construction until the House Ways and Means Committee of
which Representative Craven was a member approved a schedule
pending before it. The record contains much and conflicting
testimony as to whether Representative Craven "threatened" the DCA
budget at a November 21, 1978 meeting with DCA officials. Indeed,
some of the questions posed by counsel for the Respondent suggest
a concern for whether Gerald Tuckman was personally threatened,
obviously not an issue in this case. While we do not believe that any particular characterization of Representative Craven's
reference to the budget is crucial to this case, we do conclude,
having reviewed all of the testimony and made assessments as to
credibility, that Representative Craven strongly pressed the DCA
officials present at the November 21 meeting to award a grant to
JPCDF and indicated that the DCA budget might be adversely affected
if that award were not made.

The pressure applied by Representative Craven to EOCD
officials at a time when they had a matter of significance pending
before his Committee and his reference to the agency's budget
amounted to substantial participation in the award of the contract
to JPCDF by way of recommendation. Moreover, the record shows that
Representative Craven's contacts with EOCO officials and the
concern generated by those contacts for the DCA budget were major
factors leading to the ultimate decision to award the URS contract
to JPCDF. Thus, Representative Craven actually participated
personally and substantially in the decision to fund JPCDF.

Even if we had not made the finding noted above with respect
to Representative Craven's reference to the DCA budget at the
November 21 meeting, we would still hold that his strong pressing
of agency officials who knew of his position on the Ways and Means
Committee at a time when their agency had a significant matter
pending before that Committee constituted "participation" in the
award of the grant, both by way of "recommendation" and by way of
"decision."

Representative Craven's brothers and daughter had a "financial
interest" in the award of the URS contract to JPCDF. JPCDF had
decided, prior to that award, to rent office space in the Minton
Building, which Representative Craven's brothers and daughter owned
as beneficiaries of the Celtic Realty Trust. JPCDF intended to pay
some portion of the URS grant, once received, over to the Trust as
rent on that space. Since Representative Craven's family members
stood to benefit financially from the award of the contract to
JPCDF, they had a "financial interest" in that contract within the
meaning of Section 6. It is irrelevant that the Celtic Realty Trust
could secure other paying tenants for the space which JPCDF
intended to occupy and meet its mortgage payments without renting
that space and that JPCDF could make the rental payments without
receiving the URS grant.[9]

The evidence further shows that Representative Craven knew,
at the time he had his contacts with EOCD officials relative to
JPCDF, that

Page 23

JPCDF planned to move into the Minton Building and to pay rent to
his family members through the Celtic Realty Trust.

Thus, Representative Craven knowingly participated in a
particular matter in which members of his family had a financial
interest in violation of Chapter 268A, Section 6. In so doing,
Representative Craven exhibited an insensitivity to the fundamental
principle that a public official may not act on matters where the
financial interests of family members may interfere with his or her impartial execution of the public trust.

We hereby order the Respondent to pay within 30 days of the
issuance of this Decision a civil penalty in the amount of $1,000
for his violation of Chapter 268A, Section 6.

F. Section 2(b)

Chapter 268A, Section 2(b) prohibits a state employee from
"corruptly" demanding anything of value for himself or for another
person or entity in return for being influenced in his/her
performance of any act within his/her official responsibility. The
Petitioner contends that Representative Craven violated this
provision by corruptly demanding at the November 21, 1978 meeting
with DCA employees a $10,000 contract for JPCDF in return for being
influenced not to take unfavorable action as a member of the House
Ways and Means Committee on the DCA budget.

While we are clear that Representative Craven's conduct,
including his conduct at the November 21, 1978 meeting, constituted
an abuse of his public position and so find in connection with his
violation of Sections 6 and 23 of Chapter 268A, we do not believe
that the record in this case sufficiently establishes a separate
violation of Section 2(b).

G. Section 23

Section 23 of Chapter 268A sets out a code of conduct to which
public officials and employees must adhere if public confidence in
government is to be maintained. Paragraph (d) of that Section
provides that no state employee may "use or attempt to use his
official position to secure unwarranted privileges" for himself or
others. We find that Representative Craven violated this provision
of the state's conflict-of-interest law when he attempted to and
did use his position as a member of the poweiful House Ways and
Means Committee to secure the $10,000 DCA contract for JPCDF.

It is appropriate for members of the state legislature and
other public officials to recommend constituents for government
benefits.[10] However, no public official may use his or her
official position to apply pressure to other state employees or
officials to abandon normal agency procedures for evaluating
applicants for and awarding those benefits. An award of government
benefits based not on such procedures but rather on pressure by a
public official to act upon an extraneous and inappropriate
consideration such as concern for the agency's budget in an
"unwarranted privilege" within the meaning of Chapter 268A, Section
23(d). Moreover, public officials and employees should not use
their public positions to benefit ventures in which they or members
of their families have a financial interest.

The record shows that Representative Craven, in his contacts
with EOCD officials, went beyond merely recommending a constituent
for government benefits. His intense efforts to secure the grant
from DCA at a time when a schedule of considerable importance to
that agency was awaiting action by his Committee and his indication
that failure to award the grant to JPCDF might have adverse consequences for the DCA budget constituted an attempt to secure
an unwarranted privilege for JPCDF in violation of Section 23(d).

The record reflects that these efforts by Representative
Craven were a major factor leading to the decision by EOCD
officials to award a grant to JPCDF even though the established
process for evaluating competing proposals did not lead to a
recommendation for such an award. Thus, Representative Craven not
only attempted to use his position to secure the grant, but was
actually successful in that attempt. In other words, Representative
Craven did in fact "use" his official position to secure the grant
in violation of Section 23(d).

Page 24

If the Section 29(d) charge stood alone in this case, we would
order the Respondent to pay a civil penalty for its violation.
However, since the conduct involved here is closely related to that
which we have already found violative of Chapter 268A, Section 6,
we will not impose a separate penalty for this violation.[11]

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

[1] The Respondent *as also charged with having violated Section
2(b) of Chapter 268A. he do not find him in violation of that
provision.
[2] Mass. G.L. c. 268B. s.4(c) (paragraph 3) provides "Any member
of the commission may administer oaths and any member of the
Commission may hear testimony or recrive other evidence in any
proceeding before the Commission."
[3] Mr. Doyle was the named Respondent in an Order to Show Cause
issued by the Associate General Counsel of the Ethics Commission
on October 19. 1979. That Order alleged a violation of the
conflict-of-interest statute arising out of Mr. Doyle's dual roles
as employee of the House Rules Committee and Executive Director of
JPCDF. The Decision and Order of the Commission in that matter is
being issued simultaneously with this Decision.
[4] Those issues are characterized in the Respondent's Brief as
follows:
"1. whereas the functions of the State Ethics Commission are
judicial in nature, its membership is unlawfully constituted in
violation of the Constitution of the Commonwealth of Massachusetts,
Part II. c. II, s. I, Article IX.
2. General Laws c. 268B is an unconstitutional delegation of
power which is reserved to grand juries under the Constitution of
the Commonwealth of Massachusetts.
3. General Laws c. 268B is an unconstitutional contravention
of the Separation of Powers Clause of the Constitution of the
Commonwealth of Massachusetts, Part I. Article XXX.
4. General Laws c. 268A and c. 268B violate the Fourteenth
Amendment to the United States Constitution in an unconstitutional
classification of public officers and employees in relation to
offenses which are crimmal in nature.
5. General Laws c. 268B establishes unconstitutional
procedures and requirements which, in the context of the massive publicity that surrounded their application in this case,
constituted a denial of the right of an impartial trial by jury
with respect to any person whose case is referred for prosecution.
6. General Laws c. 268A and c. 268B purports to set forth
standards of conflict of interest which are unconstitutionably
vague and over-broad."
[5] While the Respondent raised this issue at the evidentiary
hearing before Chairman Vorenberg, he did not raise it to the full
Commission. We address the issue here because it was addressed in
the Petitioner's Brief to the full Commission.
[6] See Chapter 268B, Section 4(d).
[7] See Respondent's Brief, Arguments 7 and 9.
[8] See Respondent's Brief, argument 8.
[9] The Respondent places great emphasis in this connection on the
fact that only $490 was ever paid in rent by JPCCDF to the Celtic
Realty Trust. That fact is also irrelevant to the analysis here.
Moreover, it was clearly anticipated, before JPCDF was ordered by
DCA to stop expending the URS contract monies, that more of those
funds would be paid to the Trust.
[10] This is true provided they do not violate the restrictions of
Chapter 268A, seetion 4 on assistance in connection with
"particular matters" to which the state is a party or in which it
has a "direct and substantial interest."
[11] Commissioner McLaughlin dissents from the conclusion that
there was a violation of this seetion. In his opinio, the record
of this case does not indicate evidence adequate to support a
judgment that a violation of 23(d) occurred. Commissioner Kistler
joins in the finding that Representative Craven violated Section
23(d) and firtber believes that Representative Craven's conduct in
violation of that Section warranted a $500 civil penalty in
addition to the $1.000 sanction imposed for violation of section
6.

End Of Decision