Decision and Order
June 1, 1982
Appearing: John H. Cunha, Jr., Esq.: Counsel for Petitioner, State Ethics Commission
Donald L. Conn, Esq.: Counsel for Respondent, Edmund W. DelPrete
Robert H. Quinn, Esq.: Counsel for Respondent, John P. Saccone
Commissioners: Vorenberg, Ch.; Bernstein, Brickman, McLaughlin, Mulligan.
I. Procedural History
The petitioner filed an Order to Show Cause on October 1,1980, alleging that the Respondent John P. Saccone had violated Sections 2(b), 3(b), 23(d). 23(e) and 23(f) of M.G.L. Chapter 268A, the conflict of interest law, and that the Respondent Edmund W. DelPrete had violated Sections 2(a) and 3(a) of the same statute. The Respondents filed Answers which denied any violation of the aforementioned provisions, and Respondent Saccone raised defenses
based on state and federal constitutional grounds and other legal grounds.
Pursuant to notice, evidentiary hearings were conducted on 27 days starting February 9, 1981 and ending on November 23, 1981, before Rev. Bernard P. McLaughlin, a member of the Commission duly designated as presiding officer. See M.G.L. c. 268B, s.4(c). The parties thereafter filed post-hearing briefs on February 3, 4 and 8, 1982, and orally argued the case on February 16, 1982 before the full Commission. In rendering this Decision and Order, each member of the Commission has heard and/or read the evidence and arguments presented by the parties.
II. Findings of Fact
1. John P. Saccone ("Mr. Saccone") was at all times relevant herein employed by the Massachusetts Department of Public Safety as a Senior Civil Engineer assigned to the Life Safety Code Inspection Unit, and as such was a state employee within the meaning of Section 1(q) of M.G.L. chapter 268A.
2. Edmund W. DelPrete ("Mr. DelPrete") was at all times relevant herein the President of North River Nursing Home, Inc., a Massachusetts business corporation, which owns and operates the North River Nursing Home located at 35 Washington Street, Pembroke, Massachusetts.
3. The North River Nursing Home at all times relevant herein has been licensed by the Massachusetts Department of Public Health as an Intermediate Care Facility and has had to comply with the Federal Life Safety Code and State Physical Environment Standards (hereinafter collectively referred to as the "State and Federal Standards").
4. Mr. Saccone's official duties as an employee of the Life Safety Code Inspection Unit include conducting periodic surveys of nursing homes to ensure compliance with the State and Federal Standards, and filing reports that detail whether each nursing home surveyed is in compliance with those Standards.
5. The Life Safety Code Inspection Unit has existed since September, 1973.
6. State Building Inspector Thomas J. Carr conducted the First survey of North River Nursing Home on March 11 and 12, 1975. This initial survey cited the home for numerous violations of the State and Federal Standards.
7. Sometime between March 12, 1975 and May 12,1975, Mr. Saccone was assigned responsibility for surveying the North River Nursing Home.
8. On or about May 12, 1975, the Life Safety Code Inspection Unit received a form entitled "Statement of Deficiencies and Plan of Correction," signed by Mr. DelPrete, in which he requested that the Massachusetts Department of Public Health waive violations of a State Standard that were cited by Inspector Carr in his survey report on March 11 and 12,1975.
9. On May 12, 1975, Mr. Saccone, in an official document, recommended that the Massachusetts Department of Public Health grant the waiver requested by Mr. DelPrete.
10. On July 7 and 8, 1975, Mr. Saccone surveyed the North River Nursing Home.
11. Subsequent to his survey of July 7 and 8, 1975, Mr. Saccone filed reports with the Life Safety Code Inspection Unit, which reports purportedly detailed the compliance or non-compliance of North River Nursing Home with the State and Federal Standards.
12. In the reports he filed subsequent to his survey of July 7 and 8, 1975, Mr. Saccone reported that the North River Nursing Home had complied with several of the State and Federal Standards when in fact material violations of those Standards existed. Specifically, he reported that corridor widths and smoke barriers were in compliance with Federal Standards of Fire Safety, and that the facility provided adequate dining facilities in accordance with State Standards for Physical Environment, when such was not the case.
The Commission bases this finding primarily upon the January, 1975 survey reports of Mr. Carr, the July, 1975 survey reports of Mr. Saccone, the December, 1979 survey reports of Stanley Grass, and the testimony of Stanley Grass and John Chleapas.
Mr. Cart's 1975 fire safety survey report noted in a general way that corridors were not the required 48" wide, and Mr. Grass' 1979 survey noted 5 specific areas in which this deficiency existed. Mr. Chleapas, an expert witness, testified that in his opinion there were improper corridor widths in 1980 and that in his opinion some of them had existed from 1975 to 1980 (when he saw the facility). While the Commission acknowledges that some of the deficiencies seen by Mr. Chleapas in 1980 may have occurred subsequent to Mr. Saccone's inspection of July, 1975, namely when the nursing home was renovated and a new corridor created, there is sufficient evidence in the record to support a finding that at least one of these deficiencies existed when Mr. Saccone inspected the nursing home in July, 1975. Further, the Commission notes that this requirement was material in that it related in a crucial way
to fire safety, specifically to whether a corridor's width would accommodate the convenient removal of non-ambulatory persons carried on stretchers or on mattresses serving as stretchers in the event of a fire.
Similarly, the absence of an adequate smoke barrier was noted by Mr. Carr in early 1975, by Mr. Grass in 1979 and by Mr. Chleapas in 1980. The Commission finds support in the record to infer that some type of smoke barrier was erected after Mr. Carr's survey; however, Mr. Chleapas testified that there was no evidence of such a barrier ever having existed in interstitial spaces or in the attic area and thus the barrier, if one existed, still did not satisfy federal fire safety requirements. Again, the existence of this feature was not simply a physical amenity but a necessary component to prevent fire spread, and thus it was material.
With respect to the lack of a dining area, both Mr. Carr's earlier physical environment report and Mr. Grass' 1979 report state there was no dining room provided, and even Mr. Saccone's January, 1976 report stated that this requirement was not met. The Commission, considering the entire record, finds that the nursing home claimed to use an enclosed, unheated, approximately 6-foot wide porch as a dining facility at times, and that it fell short of the State Standards; and that although the "multipurpose" room may also have been used as a dining facility, it nevertheless also fell short of State Standards, based on the testimony of Messrs. Grass and Chleapas and related exhibits.
13. From October 3, 1975, to October 12, 1975, Mr. Saccone and Mr. DelPrete traveled to Rome, Italy, with other members and guests of the Ancient and Honorable Artillery Company (the "Company"), of which Mr. DelPrete was a member, on a Company-sponsored trip.
14. On January 13 and 14, 1976, Mr. Saccone again surveyed the North River Nursing Home.
15. Subsequent to his survey of January 13 and 14, 1976, Mr. Saccone filed reports with the Life Safety Code Inspection Unit, which reports purportedly detailed the compliance or non-compliance of North River Nursing Home with the State and Federal Standards.
16. In the reports he filed subsequent to his survey of January 13 and 14, 1976, Mr. Saccone reported that the North River Nursing Home had complied with several of the State and Federal Standards when in fact material violations of those Standards existed. Specifically, he reported that corridor widths and smoke barriers were in compliance with Federal Standards of Fire Safety when such was not the case.
The Commission bases this finding primarily upon the January, 1975 fire safety report of Mr. Carr, the January, 1976 fire safety report of Mr. Saccone, the 1979 fire safety report of Mr., Grass, and the testimony of Messrs. Grass and Chleapas. As in Finding No. 12, the Commission deems there is sufficient evidence to support a finding that these deficiencies existed when Mr. Saccone inspected the nursing home in January, 1976, and that these deficiencies were material.
17. On or about July 15, 1976, Mr. DelPrete paid $400 by check to the Company as a down payment for himself and Mr. Saccone for a Company-sponsored trip to Rio de Janeiro, Brazil.
The Commission bases this finding primarily on a cancelled check written by Mr. DelPrete, dated 7/9/76, in the amount of $400, payable to the Company; on the ledger page of the Company's account book which contains entries documenting payments received on 7/15/76, and includes consecutive entries showing $200 each received on behalf of Messrs. DelPrete and Saccone on that date as first payment for the trip; on the testimony of Lewis Whittemore,
the Company's Executive Secretary, who made the aforementioned entries and testified that Mr. DelPrete gave him the deposit and would have given him Mr. Saccone's name in connection therewith in order for it to be entered; and on the testimony of Donald Dunbar, vice president and keeper of the records of Plymouth Home National Bank, on which the cancelled check was drawn, which testimony authenticated the check and verified its payment.
Neither Mr., Saccone nor Mr. DelPrete testified; their most direct statements in the record on this point are their interrogatory answers, which were admitted as exhibits. The Commission is not persuaded by Mr. DelPrete's statement that the payment in question was made for himself and a Fr. Repole, since it is clearly controverted by the Company's ledger, and was also rebutted by Fr. Repole on the stand. Although it is unnecessary in view of the evidence just described, the Commission would also be warranted in drawing an inference, unfavorable to Respondents, based on their failure to testify.
18. On or about September 7, 1976, Mr., DelPrete paid $1,348 by check to the Company, of which $599 was for his own and $749 was for Mr. Saccone's final payment for the trip to Rio de Janeiro, Brazil.
The Commission bases this finding primarily on copies of a cancelled check written by Mr. DelPrete, dated 9/8/76, in the amount of $1,348, to the Company; on the ledger page of the Company's account book which contains entries documenting payments received on 9/7/76, and includes consecutive entries showing $599 received on behalf of Mr. DelPrete and $749 received on behalf of Mr. Saccone on that date, by way of one check, as second payment for the trip; on the testimony of Joseph Kreas, Paymaster of the Company, who made the aforementioned entries and testified that one check covered both of them; and on the testimony of Donald Dunbar, who authenticated the cancelled check and verified its payment.
In his interrogatory answer 5(e), Mr. DelPrete admitted that this payment was made on behalf of himself and Mr. Saccone.
19. Mr. Saccone did not fully repay Mr. DelPrete for the trip to Rio de Janeiro, Brazil.
The Commission is not persuaded by Mr. Saccone's statement to investigator Karen Schwartzman, to which she testified, that he repaid Mr. DelPrete $550 in cash out of a Plymouth Savings Bank savings account withdrawal of $705 in October, 1976; rather, the Commission credits the testimony of Robert Tracy, assistant treasurer and keeper of the records of
that bank, who testified that $505 of that withdrawal was used to purchase traveler's checks and only $200 was taken by Mr. Saccone in the form of cash. A withdrawal order and receipts from the purchase of traveler's checks, produced and authenticated by Mr. Tracy, document the transactions to which he testified and refute Mr. Saccone's statement. In part because of this refutation, the Commission also does not credit Mr. Saccone's interrogatory answer to the effect that he paid Mr. DelPrete for the trip in cash from time to time in August and September, 1976, on bingo nights and [at] social functions, with cash he had on hand or cash from his savings account. A copy of the relevant pages of the savings account passbook, produced by Mr. Saccone and admitted into evidence, shows no other withdrawals during the relevant period besides that testified to by Mr. Tracy. The Commission also draws an inference unfavorable to Mr. Saccone because of his failure to testify, and the inconsistencies in his statements.
The Commission is likewise un-persuaded by statements of Mr. DelPrete on this issue. Investigator James F. Sullivan testified that Mr. DelPrete told him that he (DelPrete) paid for Mr. Saccone's trip and his own in cash and that Mr. Saccone repaid him in cash. The first part of that statement was contradicted by the evidence outlined in Findings No. 17 and 18, and also by Mr. DelPrete's own interrogatory answer to the effect that he paid for the trip by check. The Commission also rejects Mr. DelPrete's interrogatory answer with respect to the form of Mr. Saccone's repayment to him, namely that Mr. Saccone gave him $410 cash on 8/12/76 and $321 cash on 8/27/76, both of which Mr. DelPrete said he (DelPrete) deposited in account no. 207541-5 at the Plymouth Home National Bank. The Commission instead credits the testimony of Mr. Dunbar of that bank. He testified that the deposits made to
that account on those two dates consisted of checks, not cash, and he produced copies of the deposit tickets and some of the deposited checks, none of which bore Mr. Saccone's name. In addition to the internal contradictions in Mr. DelPrete's statement and their refutation by Mr. Dunbar, the Commission's finding is justified by an unfavorable inference to be drawn as a result of Mr. DelPrete's failure to testify.
20. Mr. DelPrete paid, in whole or in part, for Mr. Saccone's 1976 trip to Rio de Janeiro, Brazil, for or because of official acts performed or to be performed by Mr. Saccone, namely Mr. Saccone's survey, survey reports and recommendations for the certification of the North River Nursing Home.
The Commission bases this finding upon compelling inference. In doing so, it rejects the argument of Respondents' counsel that the motivation for the joint trip was a longstanding friendship between Messrs. Saccone and DelPrete. Not only was no direct testimony of such friendship introduced, but the Respondents' descriptions of their social relationship, contained in their interrogatory answers, were inconsistent with each other. They did agree however that they had never before exchanged gifts, nor traveled together until 1975.
The Commission's inference here derives from (a) the lack of evidence of friendship; (b) the inconsistent statements of Respondents on that issue; (c) their failure to testify; (d) the unquestionable fact that, as of May, 1975, when the exchange of official documents between Messrs. Saccone and DelPrete relating to North River Nursing Home began, they were each aware that Mr. Saccone had regulatory authority over North River Nursing Home, and that this authority continued until at least 1978, when Mr. Saccone made his last survey visit to the home; and (e) the fact that their trips together started the same year that Mr. Saccone assumed this regulatory authority.
21. From September 28, 1976, until October 9, 1976, Messrs. Saccone and DelPrete traveled to Rio de Janeiro, Brazil with other members and guests of the Company, on a Company-sponsored trip.
22. Mr. Saccone performed additional surveys, of the North River Nursing Home on December 15 and 16, 1976, December 21 and 22,1977, and December 27 and 28,1978.
23. Subsequent to his surveys of December 15 and 16, 1976, December 21 and 22, 1977, and December 27 and 28, 1978, Mr. Saccone filed reports with the Life Safety Code Inspection Unit, which reports purportedly detailed the compliance or non-compliance of North River Nursing Home with the State and Federal Standards.
24. In the reports noted above in paragraph 23, Mr. Saccone reported that the North River Nursing Home had complied with several of the
State and Federal Standards when in fact material violations of those Standards existed.
Specifically, in his report on the December 15 and 16, 1976 survey, he reported that corridor widths and smoke barriers were in compliance with Federal Standards for Fire Safety, when such was not the case. The Commission bases this finding on Mr. Saccone's fire safety survey report and on the same evidence recited in Findings No. 12 and 16. Similarly, in his reports on the December 21 and 22, 1977 and December 27 and 28, 1978 surveys, Mr. Saccone reported that corridor widths and smoke barriers were in compliance with Federal Standards for Fire Safety, when such was not the case; he also reported that there were adequate dining facilities to meet
State Standards when in fact there were not.
Respondent DelPrete has been charged with violating M.G.L. c. 268A, s.s.2(a) and 3(a). Respondent Saccone has been charged with violating M.G.L. c. 268A, s.s.2(b), 3(b) and 23(d), (e) and (f). These charges will be addressed separately. First, however, the Commission will address certain constitutional and other legal issues raised by the Respondents.
A. Constitutional Issues
1. Combination of Investigatory, Prosecutorial and Adjudicatory Functions
In the course of these proceedings, Respondents have alleged that their due process rights under the federal and Massachusetts constitutions are violated by virtue of the organization and procedures of the State Ethics Commission, in which investigatory, prosecutorial and adjudicatory functions are combined in one agency. The Commission rejects this argument as one which is well settled in both federal and Massachusetts case law. As the Commission has previously stated, in its opinion In the Matter of George A. Michael, Commission Adjudicatory Docket No. 137 (issued September 28, 1981), the constitutional validity of such a combination has been upheld by both the United States Supreme Court, in Withrow v. Larkin, 421 U.S. 35 (1975), and by the Massachusetts Appeals Court in School Committee of Stoughton v. Labor Relations Commission, 4 Mass. App. Ct. 262 (1976); in addition, Withrow has been cited and applied by the Massachusetts Supreme Judicial Court in the case of Dwyer v. Commissioner of Insurance, 375 Mass. 227 (1978). In George A. Michael v. State Ethics Commission, Superior Ct. No. 47401 (Ronan, J.), affirmed, Mass. App. Ct. No. 81-0077-CV (April 3, 1981, Armstrong, J.), the Superior Court cited with approval the Withrow decision, in refusing to grant injunctive relief to a Respondent then before the Commission; both upper and lower courts also cited the Opinion of the Justices, 375 Mass. 795 (1978), an opinion which was rendered to the Massachusetts Senate prior to the passage of M.G.L. c. 268B (the statute which created the Commission), and which noted no constitutional defect in the statutory scheme under the Massachusetts constitution.
2. The Characterization of these Proceedings as Civil, Quasi-Criminal or Criminal, and the Constitutional Protections Afforded Thereby.
Respondents have argued that the proceedings in this matter are quasi-criminal or criminal, and thus that they warrant a higher standard of proof than "preponderance of the evidence," and other safeguards such as Miranda warnings and the exclusionary rule.
The Commission affirms the characterization of these proceedings as civil in nature. In doing so, it notes that it has the power to assess only civil or regulatory sanctions under M.G.L. c. 268B s.4(d). The form of Commission proceedings is clearly administrative and civil, as well, In the Opinion of the Justices, supra at 819, the Supreme Judicial Court ruled that the imposition of the contemplated penalties by the State Ethics Commission would not violate Article 12 of the Massachusetts Constitution, because it did not appear that a purpose of the proposed law was to punish the commission of a crime through the imposition of a penalty. Rather, with the enactment of M.G.L. c. 268B, the legislature created a civil remedy to enforce the regulatory aims of M.G.L. c. 268A, and entrusted the Commission with such enforcement: the Attorney General remains responsible for enforcing the punitive sanctions.
The Commission finds that the Respondents' reliance upon Addington v. Texas, 441 U.S. 418 (1979), as support for engrafting a higher burden of proof onto these proceedings, is misplaced.
In that case, the proceeding involved the involuntary commitment of a person to a state mental institution for an indefinite period of time; the degree to which such person's liberty could be curtailed as a result of that proceeding is clearly distinguishable from the sanctions which may be invoked in these proceedings. The Commission therefore maintains that the standard of proof appropriate to these proceedings is that used in other civil cases, namely, a preponderance of the evidence.
Where, as here, the proceedings and possible sanctions are clearly civil, the Commission is not required to follow the procedures outlined in Miranda v. Arizona, 384 U.S. 436 (1966) and give warnings to those under investigation. Further, even if these proceedings were quasi-criminal or criminal, it is well settled that the Miranda decision only applies where interrogation occurs during custody or while an individual's freedom of action is curtailed. See, e.g., Beckwith v. United States, 425 U.S. 341(1976); United States v. Mueller, 510 E2d 1116 (CA5 1975) (statements made by defendant to investigator during "informal conversation"); United States v. Carolio, 507 E2d 50 (CA5 1975), reh den (CA5) 510 F.2d 1407 and cert den 423 U.S. 874 (statements made by defendant at his place of business); Taglianetti v. United States, 398 F.2d 558, 566 (CA1 1968) affirmed on another ground, 394 U.S. 316(1969). In this case, neither Respondent was ever in custody nor under any constraint when giving information which was later used at the hearing. Mr. Saccone voluntarily came to the Petitioner's offices to be interviewed informally, and also produced documents voluntarily; Mr. DelPrete was at his own place of business when he spoke with a Commission investigator who had come there to serve a summons for records, and voluntarily produced documents and gave other information forthwith rather than waiting until the return date on the summons. Neither federal nor Massachusetts courts have extended the Miranda requirements to such situations. See Commonwealth v. Rawlins, 352 Mass. 293 (1967).
Because these proceedings are civil, not criminal, in nature, the exclusionary rule is likewise inapplicable. Simply because the Commission is authorized to refer to the Attorney General evidence which may be used in a criminal proceeding, suppression of evidence is not warranted in this proceeding. Rather, a motion to suppress might be appropriate in the context of a criminal proceeding which resulted, were the allegedly tainted evidence to be introduced in that forum. The case at issue here is further distinguishable in that it has been testified that the material turned over to the Attorney General during the investigation of this case related not to the charges here, but to a separate matter.
Although the Miranda decision is inapplicable to these proceedings, the Commission acknowledges that a standard of fairness should guide its investigations and proceedings. Such a standard must necessarily be analyzed in light of the particular circumstances of each case. In this case, given that the allegedly "tainted" evidence was obtained through a voluntary interview of Mr. Saccone, and from information voluntarily disclosed by Mr. DelPrete at his own place of business during the service of a summons, the Commission finds that the introduction of such evidence was not unfair.
3. Other Constitutional Issues
Respondent Saccone raised several other constitutional defenses in his Answer which he did not pursue further in his brief, namely that M.G.L. c. 268A is unconstitutionally vague and that the proceedings are fundamentally unfair. The Commission rejects these contentions.
With respect to the alleged vagueness, the Commission considers the substantive provisions of M.G.L. c. 268A (s.s.2-22) to be adequately specific to put Respondents on notice as to what behavior is proscribed. In particular, Sections 2 and 3, under which Respondents have here been charged, are closely patterned after federal conflict of interest laws, 18 U.S.C.A. s.s.201(b), (c) (1), (f) and (g), which have been upheld against allegations of vagueness. See e.g., United States v. Irwin, (CA2 1965) 354 F.2d 192, 196-197, cert den 383 U.S. 980(1978 interpreting s.201 (f)). M.G.L. c. 268A, s.23(a-f) states in the abstract the standards of conduct which the rest of the statute attempts to accomplish by laying down concrete prohibitions; yet the section ranges beyond what is specifically prohibited elsewhere in the act. Buss, The Massachusetts Conflict of Interest Statue: An Analysis, 45 B.U.L. Rev. 299, 307 (1965). The fact that the prohibitions are stated generally is not fatal; the vagueness
doctrine should not be used to convert into a constitutional dilemma the practical difficulty of drawing a statute both general enough to take into account a variety of human conduct and sufficiently specific to issue fair warning that certain kinds of conduct are prohibited. Colten v. Kentucky, 407 U.S., 104 at 110 (1972). A Respondent cannot seek to prove vagueness by suggesting hypothetical cases taken from the peripheral areas of a statute's scope, but must show that, as applied to his own case, the statute was so vague and uncertain that he was not presented with an ascertainable standard of guilt. United States v. Irwin, supra, at 196. Here, Mr. Saccone has failed to do so.
With respect to the alleged fundamental unfairness of the proceedings, the Commission refers to the rulings made elsewhere in this Decision section and by the presiding officer at the hearing as dispositive of those specific issues raised by Mr. Saccone relating to the issue of fairness. To the extent that his claim may relate to other unspecified instances not pursued by his brief, the Commission declines to rule on them further.
B. Other Legal Issues
1. Statute of Limitations
In his Answer, Respondent Saccone raised the statute of limitations as a defense to this action, without further specifying what he considered to be the applicable limitation period, nor in what respect he considered it to have expired. The Petitioner did not affirmatively respond to this defense in any supplemental pleading, nor introduce any evidence specifically directed toward it, and none of the parties addressed the issue in briefs or during oral argument before the full Commission. Because of the potential importance of the issue, during its deliberations the Commission requested that the parties submit memoranda of law on the question of which statute of limitation should be applied to this proceeding.
Since the adoption of M.G.L. c. 268B in 1978, the Massachusetts courts have not had occasion to rule on the question of which statute of limitations applies to adjudicatory proceedings before the Commission. However, in 1979 the Supreme Judicial Court issued an opinion in Nantucket v. Beinecke, 1979 Mass. Adv. Sh. 2623, which gives some guidance on the issue. That case involved a civil action brought under M.G.L. c. 268A, s.21, by the Town of Nantucket, to recover real property which had been conveyed by several town officials, allegedly in violation of c. 268A, s.s.19 and 20. The defendant, to whom one of the officials had conveyed the property approximately eleven years before the suit was brought, moved dismissal of the case on the ground that the statute of limitations had run. The court rejected the plaintiff’s contention that the absence of a limitation provision in c. 268A indicated that no limitation applied. Instead, the court looked to "the gist of the action or the essential nature of the plaintiffs claim" and concluded that the particular action at bar, which concerned a violation of official duty. sounded in tort. Id. at 2626.
Looking at the "gist of the action" here, the Commission considers the conduct at issue in this case, i.e., the misuse of official position, to be a breach of duty, sounding in tort, as well. While the relationship of a public employee to his employer is at its foundation a contractual one, the obligations assumed by the employee go beyond those in an ordinary express or implied contract and encompass a broader assumption of public trust, more analogous to a fiduciary relationship. Many judicial decisions involving misconduct by public employees similar to that alleged here have used a fiduciary analysis:
If he takes any gift, gratuity, or benefit in violation of his duty, ... it is a betrayal of his trust and a breach of confidence, and he must account to his principal for all he has received.
The doctrine is well-established. The disability results not from the subject-matter but from the fiduciary character of the one against whom it is applied. United States v. Carter, 217 U.S. 286, 906 (1909).
See, also, United States v. Podell, 572 F.2d 31 (CA2 1978); United States v. Bowen, 290 F.2d 40 (CA5 1961); United States v. Eilherg, 507 F. Supp. 267 (E.D. Pa. 1980). Indeed, the conflict of interest law can be viewed as a codification of fiduciary principles applicable to public employees. For these reasons, the Commission will apply a tort statute of limitations to this action, namely three years (M.G.L. c. 260 s. 2A).
There are additional reasons for this conclusion. Because it views its enforcement role as civil, and not criminal or penal, the Commission declines to adopt the limitation period applicable to criminal actions (sic years, M.G.L. c. 277 s. 63) or to forfeitures or penalties (two years, M.G.L. c. 260 s.5) as a standard for its causes of action. While it is possible that another set of facts not now before the Commission might sound more properly in contract than tort, given the particular facts of this case, the Commission declines to use a contract theory, leaving open the possibility that a contractual analysis might be appropriate in other cases.
In applying a three-year statute of limitations, one must look to see when that period starts to run, and whether any circumstances warrant the tolling of the Statute. The limitations period commences to run when the cause of action accrues, usually the completion of the last act which gives rise to the cause of action. New Bedford v. Lloyd Investment Associates, Inc., 363 Mass. 112, 119 (1973). However, in causes of action which are based upon an "inherently unknowable" wrong, a discovery rule has been applied, under which the cause of action has not been held to accrue until the plaintiff learned, or reasonably should have learned, that he was harmed by the defendant's conduct. See, e.g., Franklin v. Albert, 1980 Mass. Adv. Sh. 2187; Friedman v. Jablonski, 371 Mass. 482(1976); Hendrickson v. Sears, 365 Mass. 83 (1974). In the context of a civil action brought under M.G.L. c. 268A, the Supreme Judicial Court in Beinecke applied a discovery rule, stating:
[W]e suggest, as a general proposition, that only when those disinterested persons who are capable of acting on behalf of the town knew or should have known of the wrong, should the town be charged with such knowledge. Besides the common law discovery rule applicable to inherently unknowable wrongs, there is also a statutory discovery rule applicable in certain situations. M.G.L. c. 260, s.12 delays the start of the period in cases where a person liable to a personal actions fraudulently conceals the cause of such action from the knowledge of the person entitled to bring it in which case the period starts to run when the latter person discovers the cause of action. Nevertheless, this rule has been interpreted strictly by Massachusetts courts to cover only those situations where there is evidence that the concealment was accomplished "by positive acts done with the intention to deceive. . . [by] active steps taken . . . not merely constructive concealment [but] active fraud of a kind calculated to conceal the truth." The fraud cannot be presumed and ordinarily a defendant's mere silence or failure to inform a plaintiff of the facts is not fraudulent concealment. An exception, in which the courts construe silence about one's wrongdoing to be active fraud and thus grounds for tolling the statute of limitations, has been made where the wrongdoer's relationship to the wronged is one of a trust or fiduciary nature and there is a great disparity in expertise or knowledge which would render plaintiffs discovery of the wrong nearly impossible, or where there is some other specific duty to disclose the matter.
The Commission will apply the foregoing principles to the facts found to ascertain whether Respondents in this case have violated M.G.L. c. 268A as alleged by Petitioner.
2. Alleged Failure to Comply with Discovery Motions
Respondents have moved these proceedings be dismissed based upon Petitioner's alleged failure to produce documents called for during discovery. Such alleged failures fall into several categories which will be discussed separately.
a. At the commencement of hearings on this matter, it was discovered that Petitioner intended to introduce into evidence certain documents which had not previously been provided to Respondents and which were arguably within the latters' discovery requests. The parties agreed that such non-production was inadvertent, and Petitioner supplied the documents in question to Respondents forthwith; after the production. there was a six-week recess in the hearing, in part to allow Respondents adequate time to analyze what was produced, and adjust their presentation accordingly. In view of this accommodation, the Commission does not consider Respondents to have been prejudiced by the non-production, and rules that dismissal is not warranted thereby. Even if these proceedings were governed strictly by the Massachusetts Rules of Civil Procedures (which they are not), M.R.C.P. Rule 37, which addresses failure to comply with a discovery order, does not require dismissal but states that a court may make such orders as are just, including a stay of proceedings until a discovery order is obeyed. The Commission notes that its actions in the case at hand are consonant with the purposes of such a rule.
b. In the course of discovery, certain investigative materials were not produced in their entirety, but rather with certain portions deleted. These documents were primarily interview reports and a letter of complaint. Petitioner represented to the presiding officer that the omitted material related to other investigative matters not at issue in these proceedings. The presiding officer, in turn, offered to inspect the documents in camera to confirm that such was the case, but such offer was refused by Respondents.
The Commission notes that under M.G.L. c. 268B, s. 4(a), "all commission proceedings and records relating to a preliminary inquiry shall be confidential," and that s.7 provides criminal penalties for violation of such confidentiality. While Respondents would arguably be entitled to records concerning inquiry into their own actions, the Commission finds that they are not so entitled to documentation relating to alleged improprieties of others, which under the statute is privileged. In addition, even M.R.C.P. Rule 26(b)(1) limits discoverable material to that which is relevant and not privileged. In view of Petitioner's representation that the material here in question related to other investigations and was therefore irrelevant and privileged (and Respondents' refusal to allow the presiding officer the means to determine the truth of that representation), the Commission sees no reason to allow discovery of such material, and affirms the prior rulings of the presiding officer in this regard.
c. The Respondents also objected to the non-production of certain reports from interviews of individuals whom Petitioner did not call to testily. The Commission notes such non-production would be justifiable under the "work-product" exemption in M.R.C.P. 26(b)(3), and considers their non-disclosure appropriate in this administrative context as well.
3. Admissibility of Statements or Documents of One Respondent Against a Co-Respondent
These proceedings are governed by the Rules of Practice and Procedure, 930 CMR 1.01 et seq., which state that evidence is admissible if relevant, not privileged, and "the kinds of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs." (930 CMR 1.01(9)(f)(2)).
In the course of the hearings, Respondents objected to the introduction of written or oral statements of one Respondent for use against both Respondents because, they maintained, no conspiratorial allegations had been made. In an effort to accord Respondents as much protection as possible, the presiding officer initially allowed such objections and limited the admissibility of
the material, However, when in the protracted course of the proceedings the exclusions became exceedingly complicated and a barrier to the admission of clearly relevant evidence, the presiding officer declined to continue such limitation of evidence, and admitted it if relevant with the proviso that the full Commission would decide the admissibility and weight to be accorded it.
In view of the Rules which govern these proceedings, the Commission considers the evidence in question to be relevant and thus fully admissible. With respect to those written and oral statements whose admissibility was initially limited, the Commission also rules them admissible for their full probative value. In doing so, it rejects what it considers to be an unworkable evidentiary rule in the context of an administrative proceeding.
4. Admissibility of Expert Testimony
Respondents have moved to strike the expert testimony of John Chleapas because of alleged lack of foundation, irrelevance, and its reliance upon documents not admitted against both Respondents.
The Commission rejects these arguments. With respect to the alleged lack of foundation, the Commission agrees with the presiding officer's ruling that Mr. Chleapas was qualified as an expert. In doing so, the Commission points to Mr. Chleapas's membership on professional committees of the National Fire Protection Association and the American Society for Testing and Materials which deal with building construction types as they relate to fire safety and resistance, his experience at the U.S. Department of Public Health where he monitored construction of health facilities in accordance with the Life Safety Code and state and federal physical environment requirements, oversaw the accuracy and completeness of survey reports by state inspectors, performed such surveys himself, and trained the inspectors in the very unit in which Mr. Saccone served (including Mr. Saccone). The Commission recognizes that his knowledge of the internal operations and administration of this state unit was limited, and the Commission thus accords lesser weight to that portion of his testimony, as reflected in the violations discussed below (in section III(C)(3)). However, this does not nullify his expertise and testimony on the Code, its requirements, and the construction of the North River Nursing Home, and the Commission upholds the validity and admissibility of that testimony.
On the question of the basis of Mr. Chleapas's testimony, the Commission points to its ruling C above (section 111(B) (3)), to the effect that the documents upon which he based his testimony were fully admissible against both Respondents. Further, to the extent that Mr. Chleapas's expert testimony was based on his personal observation of the North River Nursing Home, the Commission does not agree that the passage of time between the observations of Messrs. Saccone and Chleapas rendered the latter's findings irrelevant. Rather, the Commission notes that a trier of fact has broad discretion to decide the admissibility of such evidence, and it affirms the prior ruling of the presiding officer which allowed the testimony and related exhibits.
Relevance of Original Complainant and His/Her Motivation
In the course of these proceedings, both Respondents addressed themselves at length to the asserted necessity for disclosing the identity of the individual who originally brought to the Commission's attention the allegations which led to this inquiry and the subsequent proceedings. Briefly stated, they argued that the identity was relevant to show that (a) the individual was someone within Mr. Saccone's unit who had been accused (and censured) for dishonesty in the submission of expense vouchers, and therefore the person was not credible; and (b) the person's complaint was motivated by racial animosity, hatred and bigotry. Respondents introduced several witnesses who testified to the base motivation of the purported complainant. Respondents also objected to the Petitioner's failure to call the individual as a witness.
At the outset, the Commission fails to see any grounds for objecting to the non-production of an allegedly incredible witness. The Commission also notes that if Respondents indeed considered it crucial to expose the individual's identity and motivation, they were entirely free to call the person as a hostile witness, which they did not.
Moreover, these arguments and objections belie a fundamental misunderstanding of the basis for Commission actions. An adjudicatory proceeding such as this is predicated upon a Commission finding that "reasonable cause" exists to believe that M.G.L. c. 268A or 268B has been violated (c. 268B, s.4(C)). In finding such reasonable cause, the Commission does not rely upon the complaint alone, but rather upon independently verified information gathered by the Commission's investigative staff pursuant to the receipt of the complaint. As a matter of Commission practice, a complaint alone does not serve as the basis for such a finding, but must be independently verified. Once reasonable cause is found and proceedings commenced, it is the independently verified information and corroboration which from the crux of Petitioner's presentation; the original complaint may well be wholly superfluous.
In the case at hand, Respondents failed to show any improper reliance by Petitioner upon the original complaint; the complainant was not produced, and investigators who testified disclosed no substantial credence given to the original complaint once the case advanced beyond the preliminary stages. Therefore, the Commission rejects Respondents' arguments on this issue as irrelevant, and to the extent they form the basis for any outstanding motions to dismiss by Respondents, the motions are hereby denied.
All parties agreed that Respondent Saccone was, at all times relevant, a state employee within the meaning of M.G.L. c. 268A, s.1(q) and thus subject to the proscriptions of that chapter.
C. Chapter 268A Allegations
1. Section 2
The Petitioner contends that, by taking Mr. Saccone on two trips abroad in 1975 and 1976, Mr. DelPrete corruptly gave him something of value with intent to influence Mr. Saccone's official acts and to induce him to do acts in violation of his lawful duty, namely to misrepresent the condition of the North River Nursing Home in his survey reports and recommendations, in violation of Section 2(a); conversely. it is alleged that Mr. Saccone corruptly received something of value in return for being so influenced and induced, in violation of Section 2(b).
The distinguishing element of s.2 is the existence of a specific corrupt intent, of an understood "quid pro quo," and the Petitioner must show such corrupt intent to sustain a violation. Commonwealth v. Dutney, 4 Mass. App. 363(1976). In the case at hand, Petitioner has presented no direct evidence of intent, but has argued that it is inferable from the record, particularly from the coincidence of time between Mr. Saccone's assumption of duties regarding the North River Nursing Home, and the first payment made for his trip to Rome by Mr. DelPrete.
The Commission does not find the record sufficiently complete or persuasive to give rise to such an inference. The lack of direct evidence is difficult to overcome, and here neither action alleged to have occurred on or about May 12, 1975, giving rise to a corrupt agreement, was persuasive. In particular, the waiver recommendation made on that date by Mr. Saccone concerned violations of only one Physical Environment Standard, one which had only been promulgated the month before, and under which the Life Safety Code Inspection Unit arguably had wide discretion. As for the payment made on that date by Mr. DelPrete, the documentation of that payment and its attribution to Mr. Saccone's trip was scant, and was not elaborated upon in testimony. In view of the record, the Commission declines to infer corrupt intent, and therefore finds no violation of s.2 in either 1975 or 1976.
2. Section 3
Petitioner has alleged that Mr. DelPrete gave something of substantial value, to wit, a trip to Rome in 1975 and a trip to Rio in 1976, to Mr. Saccone, in violation of s.3(a). Likewise, it is alleged that Mr. Saccone twice violated s.3(b) by accepting these trips.
The Commission considers the evidence relating to the 1975 trip to be insufficient to give
rise to the conclusion that Mr. DelPrete paid for Mr. Saccone's expenses for that trip. and thus the Commission finds no Section 3 violation arising from that trip. The record of payment for the 1976 trip. however, is much more complete and thus the Commission finds that Mr. DelPrete did pay for part or all of Mr. Saccone's expenses for that trip.
Nevertheless, the findings relating to the 1976 trip do not give rise to a Section 3 violation, because of the statute of limitations. Although the Commission finds that Mr. DelPrete gave, and Mr. Saccone received, part or all of the latter's expenses for the 1976 trip, there is a lapse of four years between the date of that trip and the issuance of an Order to Show Cause in this matter (October 1, 1980)." The limitation period starts to run with the receipt of the gratuity (the trip on September 27 - October 9, 1976) and not the completion of the official acts which motivated it; under Section 3, the official acts are not viewed as part of a "quid pro quo," nor need there be a showing that there were any official acts which were affected by receipt of the gratuity.
The statutory period is not tolled by the Commission's failure to discover the violation (the Commission did not exist until November, 1978), because the violation was not "inherently unknowable." Also, at the time of the offense there were in existence other "disinterested persons" capable of enforcing s.3, namely the attorney general and the appropriate district attorneys. Petitioner did not show that they were unable, despite due diligence, to discover the violation earlier, nor does the record contain any showing of fraudulent concealment of the trip by Respondents.
3. Section 23(d)
The Commission finds that Mr. Saccone violated s.23(d), which states, [no state employee shall] use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others by virtue of his having submitted survey reports on the North River Nursing Home in 1975-78, in which he omitted citing material deficiencies.
The evidence Petitioner presented on the alleged deficiencies of the North River Nursing Home was voluminous; much of it was directed toward showing that the home violated the State and Federal Standards on Physical Environment. Respondent Saccone, in turn, presented evidence to show that his actions were justifiable and warranted under the often-changing and easily-waived standards as they were actually implemented by the Life Safety Code
Inspection Unit during the years in question.
The Commission, in making its findings with respect to the accuracy of Mr. Saccone's reports, wishes to avoid to the extent possible substituting its judgment, regarding acceptability under the State and Federal standards, for that of the inspectors and supervisors in the Inspection Unit. The findings reflect, therefore, an acknowledgement that some of those standards were less than constant and inflexible, and that the standards accorded considerable deference to the judgment of the inspector. For these reasons, the Commission has limited its findings to several representative deficiencies under the fire safety standards, which did not fluctuate as often as the physical environment standards.
Nevertheless, the Commission finds that Mr. Saccone's repeated failure to cite those deficiencies did in fact constitute "use [off his official position to secure unwarranted . . . exemptions" for the North River Nursing Home. Although Messrs. Hall and Boudreau of the Life Safety Inspection Code Unit testified that inspectors commonly, and with their tacit approval, omitted citation of certain deficiencies, they did not clearly acknowledge that this was true with respect to basic fire safety features. In his testimony, Mr. Hall described an alternative method of determining fire safety. However, he admitted that this method has only officially been in use since 1979, and
that to the extent it was used in Massachusetts prior to that time, it still assumed that a facility's deficiencies would be accurately recorded for evaluation. Thus, the Commission considers Mr. Saccone's failure to report such deficiencies was unwarranted, and finds that he violated s.23(d) on each of the five occasions on which he submitted inaccurate survey reports.
The facts found to constitute these violations fall within the statutory period for commencing these proceedings. Both Respondents admitted in their answers that Mr. Saccone's duties as a Life Safety Code Inspector include conducting periodic surveys of nursing homes to ensure compliance with the State and Federal Standards, and filing reports that detail whether each nursing home surveyed is in compliance with those Standards (see Finding of Fact no. 4, above). As mentioned in the preceding paragraph, Mr. Saccone's supervisor did expect that a facility's deficiencies would be accurately recorded. Here, then, the record clearly indicates that Mr. Saccone had an affirmative obligation to disclose the true condition of the North River Nursing Home and that he repeatedly failed to do so. Moreover, he made active misrepresentations of that condition each time he submitted a report on that facility, and related documentation. Thus, at least until Mr. Saccone signed his last survey report for the North River Nursing Home on February 12, 1979, stating that the facility met state and federal standards, he took active steps to fraudulently conceal the true condition of the home, and the statute of limitations did not start to run until then.
4. Section 23(e)
Petitioner alleges that, by submitting inaccurate inspection reports and by traveling as Respondent DelPrete's guest on two occasions, Mr. Saccone by his conduct gave reasonable basis for the impression that Mr. DelPrete could improperly influence or unduly enjoy his favor in the performance of his official duties, in violation of s.23(e).
For reasons similar to those discussed in connection with s.3, above, the Commission finds no violation of s.23(e) by virtue of the trips taken.
The Commission declines to address the allegation that the submission of false reports by Mr. Saccone violated section 23(e), since the facts which would give rise to such a violation are the same as those which have already given rise to a violation under s.23(d) above.
Petitioner charged that Mr. Saccone "pursued a course of conduct which would raise suspicion among the public that he was likely to be engaged in acts that were in violation of his trust," in violation of s.23(f), when he traveled as Mr. DelPrete's guest on two occasions. Because the facts which would give rise to such a violation are again beyond the statute of limitations adopted for the purpose of this decision, the Commission finds no such violation.
On the basis of the foregoing, the Commission concludes that John P. Saccone violated M.G.L. c. 268A, s.23(d). Pursuant to the authority granted it by M.G.L. c. 268B, s.4(d), the Commission hereby orders Mr. Saccone to pay a civil penalty of $300 for each of the five occasions upon which he submitted inaccurate inspections reports, i.e., July, 1975, January, 1976, December, 1976, December, 1977, and December, 1978, for a total of $1,500 (fifteen hundred dollars), within thirty (30) days of the receipt of this Decision and Order.
End Of Decision
 Hearing dates were February 9 and 10, March 23, 25 and 31, April 13 and 21, May 1, 11, 21 and 26, June 2, 3, 18 and 19, July 30 and 31, August 13, 14 and 24, September 18 and 24, October 14 and 15, and November 19, 23 and 25.
 However, the rooms included in the waiver recommended by Mr. Saccone did not completely correspond to those cited by Mr. Carr. The waiver recommendation will be further discussed in the Decision Section, infra, IIl(C)(l).
 In making these findings, and similar ones regarding later survey reports, the Commission acknowledges that evidence was presented on many more alleged unreported deficiencies. However, the findings are confined to those here enumerated for several reasons: (a) they are those which the Commission considers among the most material; (b) they are generally not the subject of arguably shifting standards or, if so, they did not meet any of the standards applied; (c) there is substantial evidence in support of them, while evidence on other alleged deficiencies is less persuasive; and (d) the Commission considers it unnecessarily cumulative to include in its findings every possible instance of misreporting.
Because of the substantial evidence supporting these findings and a desire to avoid further cumulative evidence of questionable relevance, the Commission denies Petitioner's motion to admit the 1981 surveys of the North River Nursing Home into evidence.
 He also told Ms. Schwartzman that he had paid Mr. DelPrete $250 in cash several weeks before this transaction, according to Ms. Schwartzman's testimony. The Commission finds it unnecessary to determine the truth of Mr., Saccone's statement on this point. See 111(C)(2).infra.
 To the extent that Respondents' Motions to Dismiss, Motion to Strike, and Motions to Suppress were based on alleged constitutional deficiencies, they are hereby denied, in accordance with the conclusions reached in the foregoing section.
 With his memorandum, Mr. DelPrete submitted a motion to amend his Answer to include the defense. The Commission's ruling in effect treats the issue as if raised by both Respondents.
 The court acknowledged that some violations of the conflict of interest law, c. 268A, might also sound in contract, but it declined to pursue the argument. For reasons specified below, the Commission also declines such a ruling here.
 1979 Mass. Adv. Sh. at 2628. That case applied a discovery rule because Town Counsel, who would ordinarily bring suit on the town's behalf, was one of the wrongdoers involved. In some cases, the running of the statutory period is affected by the existence of a "continuing violation," see, e.g. United States v. Hare, 618 F.2d 1085 (CA4 1980), but the Commission considers that theory inapplicable here.
 Maloney v. Bracken, 275 Mass. 479 (1931).
 O'Brien v. McSherry, 222 Mass. 147 ,150 (1915).
 Hendrickson v. Sean, supra (lawyer hired to perform title search owes client a full and fair disclosure of facts, i.e., clouds on title, material to the client's interests); Stetson v. French, 321 Mass. 195 (1947) (businessman who employed two illiterate younger brothers had duty to account to them for withheld wages). Compare Friedman v. Jablonski, supra (sale of land is arm's length transaction; seller is not a fiduciary and his silence cannot constitute fraudulent concealment); Savoie v. Anezis, supra (plumber not required to disclose faulty work to customer).
 Given the facts of this case, the Commission finds it unnecessary at this time to decide whether issuance of a Preliminary Inquiry notice or issuance of an Order to Show Cause constitutes the initiation of proceedings.
 To the extent that Respondents' Motions to Strike, Motions to Suppress and Motions to Dismiss were based on alleged non-compliance with discovery, they are hereby denied.
 To the extent that Respondents' Motions to Strike were based on the admissibility issue just discussed, they are hereby denied.
 The Commission also notes that the evidence in question would also be admissible under exceptions to the hearsay rule, since it consisted of official records, business records and admissions.
 The record discloses that the original allegations were made in an anonymous letter received by the Commission. Petitioner maintained throughout these proceedings that the letter's author was unknown, at least to the Commission; Respondents professed to know the author's identity.
 Although the Commission finds that Respondents did make this trip together, as mentioned in the previous section, documentation and testimony regarding payment for this trip was scant.
 See Findings of Fact, Paragraphs 17-19.
 It is arguable that the cause of action is commenced when the Commission sends notice to the subject of a preliminary inquiry that he is such a subject; however the Commission leaves this issue open, since in this case the notice was sent on June 19, 1980, still more than three years after the later trip.
 See United States v. Niederberger, 580 F.2d 63,69 (CA3 1978), cert den 439 U.S. 980 (1978) (interpreting 18 U.S.C. s.201g); United States v. Irwin, supra.
 Once the statute of limitations was raised as a defense, the burden rested upon Petitioner to show that it had not expired. Teller v. Schepens, 1980 Mass. Adv. Sh. 2199,2200-2201; Breen v. Burns, 280 Mass. 222, 228(1932).
 The Commission considers it unnecessarily cumulative to examine whether the statute was similarly violated by each of Mr. Saccone's Statements of Deficiencies, Waiver recommendations, and Post-Certification Revisit Reports.
 In invoking the statute of limitations, the Commission notes that unlike the substantive sections of M.G.L. c. 268A, s.23 has also been enforceable by an agency head, who may take administrative action against an employee for violations of the section. Thus, there was in 1975 and 1976 another entity capable of bringing an action against Mr. Saccone for the conduct alleged and found here, and which failed to act within the required time.