Docket No.: 132
IN THE MATTER OF JOHN P. SACCONE AND EDMUND W. DELPRETE
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.
Date: June 1, 1982
DECISION AND ORDER
Page 87
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,[1]
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 Febrvary 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.
Page 88
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.[2]
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 diriing 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.[3]
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.
Page 89
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 S!ate 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
intertogatory 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
sags account withdrawal of $705 in October, 1976[4]; rather, the
Commission credits the testimony of Robert Tracy, assistant
treasurer and keeper of the records of
Page 90
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) desposited 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 surveys. 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
NorthRiver 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
Page 91
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.
III. Decision
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.
Page 92
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
Page 93
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.[5]
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.[6]
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 plaintiffs
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. [7]
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 trvst, 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).
Page 94
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[8] (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. [9]
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." [10] The fraud cannot be presumed [11] and ordinarily a
defendant's mere silence or failure to inform a plaintiff of the
facts is not fraudulent concealment. [12] 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. [13]
Page 95
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. [14]
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.[15]
9. 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
Page 96
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. [16] In doing so, it rejects what it considers to be an
unworkable evidentiary rule in the context of an administrative
proceeding. [17]
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,[18] 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.[19] 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.
Page 97
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.
6. Jurisdiction
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 Comrnission 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
Page 98
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.[20] 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.[21]
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)."[22] 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.[13]
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. [24]
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
Page 99
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. [25]
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.[26]
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.
Section 23(f)
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.
IV. Order
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.
---------------
[1] 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.
[2] 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).
[3] 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 itr 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.
[4] 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.
[5] 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.
[6] 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.
[7] 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.
[8] Cf. Commonwealth v. Canon, 373 Mass. 494 (1977) (assumes
the six-year limit is applicable to criminal prosecutions under
M.G.L. c. 268A).
[9] 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.
[10] Savoie v. Anezis, 55 Mass. App. Dec 55(1974), citing,
in part, Connelly v. Bartlett, 286 Mass. 311 (1934).
[11] Maloney v. Bracken, 275 Mass. 479 (1931).
[12] O'Brien v. McSherry, 222 Mass. 147 ,150(1915).
[13] 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).
[14] 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.
[15] To the extent that Respondents' Motions to Strike,
Motions to Suppress and Mocions to Dismiss were based on alleged
non-compliance with discovery, they are hereby denied.
[16] To the extent that Respondents' Motions to Strike were
based on the admissibility issue just discussed, they are hereby
denied.
[17] 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.
[18] M.G.L. c. 30A, s.s.10, 11; Western Massachussetts Bus
Lines, Inc. v. Department of Public Utilities, 363 Mass.
61,63(1973); Town of Sudbury v. Department of Public Utilities,
351 Mass. 214 ,219-220 (1966).
[19] The record discloses that the original allegations were
made in an anonymous letter received by the Commisison.
Petitioner maintained throughout these proceedings that the
letter's author was unknown, at least to the Commisison;
Respondents professed to know the author's identity.
[20] 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.
[21] See Findings of Fact, Paragraphs 17-19.
[22] 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.
[23] 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.
[24] 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).
[25] The Commission considers it unnecessarily cumulative to
examine whether the statute was similarly violated by each of Mr.
Saccone's Statements of Deficiencies, Waiver recomendations, and
Post-Certification Revisit Reports.
[26] 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.
End Of Decision