Docket No.: 153


IN THE MATTER OF MICHAEL W. C. EMERSON


Appearing: Stephen P. Fauteux, Esq.: Counsel for Petitioner State Ethics Commission Paul G. Holian, Esq.: Counsel for Respondent Michael W. C. Emerson


Commissioners: Vorenberg, Ch.; Brickman, Mulligan


Date: February 14, 1983



DECISION AND ORDER

I. Procedural History


The Petitioner initiated these adjudicatory proceedings on
April 27,1982 by filing an Order to Show Cause pursuant to the
Commission's Rules of Practice and Procedure, 930 CMR 1.01 (5)(a).
The Order alleged that the Respondent, Michael W. C. Emerson, while
employed as a consultant by the City of Leominster (city) in
connection with a wastewater treatment plant construction project
(Project), had violated M.G.L. c. 268A, s.19, by participating as
a municipal employee in particular matters in which his business
partner, Thomas Crabtree, a sole officer, director and stockholder
of UTS of Massachusetts, Inc. (UTS of Mass.), had a financial
interest.

Specifically, Mr. Emerson was alleged to have participated in
1) the hiring of UTS of Mass. as a contractor to do testing on the
Project; 2) the review and/or approval of reports submitted to the
City by UTS of Mass.; and 3) the review and/or approval of invoices
for payment submitted by UTS of Mass. to the City. The Petitioner
also alleged that Mr. Emerson used his official position to secure
an unwarranted privilege for UTS of Mass. and Mr. Crabtree by
recommending that the City contract with UTS of Mass., and that the
Respondent pursued a course of conduct giving reasonable basis for
the impression that Mr. Crabtree, his business partner and
associate in other firms, could improperly influence or unduly
enjoy his favor in the performance of his official duties in
violation of M.G.L. c. 268A, s.s.23(d) and (e) respectively.

The Respondent's Answer denied these allegations and asserted
three affirmative defenses. Only one of these, that the Respondent
was not a municipal employee within the meaning of the definition
of that term in M.G.L. c. 268A, s.1(g), was subsequently pursued
by the Respondent.

Following approximately two months of discovery, the
adjudicatory hearing commenced on August 5, 1982 before
Commissioner Joseph I. Mulligan, Jr., the Presiding Officer
designated pursuant to M.G.L. c. 268B, s.4(c), and was completed
on September 3, 1982 after six days of testimony. The parties
thereafter filed briefs with the Commission and presented oral
arguments before the three Commissioners participating in the case
on December 20, 1982.[1] In Rendering this Decision and Order, each
of the participating Commissioners has read and/or heard the
evidence and arguments presented by the parties.


II. Findings of Fact


1. The Respondent is a consulting engineer with a doctorate
in civil engineering and is currently in his third year of law
school.

Page 138

The Partnership

2. On August 13, 1974, the Respondent, Mr. Crabtree and Donald
Jones formed a partnership named Richardson Properties
(Partnership) for the purpose of buying and managing property. The
Partnership Agreement (Agreement) provided that any partner could
withdraw six months after notifying the other parties of his intent
to do so. The Agreement did not provide that the Partnership was
established for a specific period of time or to accomplish a
particular objective.

3. The Partnership purchased two buildings; one located at
One Richardson Lane in Stoneham, Massachusetts, and the other at
20 Lomasney Way in Boston. Both properties, at least in part, were
leased as office space by various tenants, including UTS of Mass.,
during the time the Partnership was in existence.

4. By letter of January 16,1980, Mr. Jones offered to sell his
interest in the Partnership to Mr. Crabtree and the Respondent.
This offer was rejected.

5. On. February 1, 1980, Mr. Jones gave notice that he was
withdrawing from the Partnership six months from that date, in
accordance with the terms of the Agreement.

6. On August 1, 1980, Mr. Jones's withdrawal from the
Partnership became effective. Mr. Crabtree and the Respondent
continued to let and manage the properties owned by the Partnership
until their disposition in early 1982. During 1981, the Partnership
grossed $23,399.00 in rental income from the two properties.

7. In addition to the Partnership, Respondent and Mr. Crabtree
were associated with two other business entities, Yale Survey, Inc.
and Universal Testing Services, Inc., the latter being the
corporate predecessor of UTS of Mass. Respondent owned stock in
each of these corporations and also served as a director. These
firms conducted no significant business activity after 1979.

The Project

8. During all times relevant, the City was proceeding with
the design and/or construction of the Project, Wastewater Treatment
Plant Project No. C250336-03. Actual construction began in the fall
of 1980. The City was to be reimbursed with federal and state funds
for up to 90 percent of the costs associated with the Project,
provided that construction was conducted in compliance with certain
regulations and guidelines. The Environmental Protection Agency
(EPA) and the Division of Water Pollution Control (DWPC)
were the federal and state agencies, respectively, overseeing the
Project.

9. During all times relevant, Metcalf & Eddy (M & E) was the
firm acting as Resident Engineer on the Project, assigned to
oversee all phases of the construction.

10. Raymond D. Harper was elected Mayor of the City in 1979
and commenced a two-year term in January of 1980. As the City's
chief executive officer, Mayor Harper was responsible for the
Project, and his approval was required before any invoices were
paid by the City.

11. During all relevant times, Mr. Crabtree was the sole
officer, director and stockholder of UTS of Mass. and that firm
leased office space from the Partnership.

12. On November 4, 1980, Mr. Crabtree met with Mayor Harper
at the Leominster City Hall to discuss the hiring of UTS of Mass.
to perform testing and inspection work on the Project. After this
meeting, Mr. Crabtree believed that UTS of Mass. would be hired by
the City. [2]

13. Within weeks of the commencement of construction of the
Project, invoices submitted by contractors were not being processed
and approved by Mayor Harper in accordance with EPA procedures
because of Mayor Harper's distrust of M & E and his lack of
technical knowledge upon which to base his approvals of these
invoices. The City's Director of Public Works had refused to aid
Mayor Harper in connection with the Project, claiming that his
other duties precluded such assistance.

14. On December 31,1980, Mayor Harper and the Respondent
executed an "Engineering Agreement" stating, in material part, that
the "City. . . retains the services of Dr. Michael W.
Emerson P.E. as agent and liaison engineer to coordinate efforts,
make recommendations, approve or disapprove work, oversee and
advise on all work in connection with the [Project], sewer
improvements, solid waste disposal program

Page 139

and any other administrative engineering services required. . ."The
Engineering Agreement further provided that the Respondent was to
be paid $30.00 per hour plus expenses.

15. Mayor Harper did not have City funds in his budget to pay
the Respondent, nor had he complied with EPA regulations requiring
prior approval before hiring an administrator/engineer who would
be compensated from Project funds.

16. The Respondent began performing services for the City on
January 2, 1981 and last performed work pursuant to the Engineering
Agreement on March 26,1981. The Respondent submitted for payment
detailed descriptions of his services rendered to the City. On
February 2, 1981, the Respondent billed the City for $3,240.00 for
services rendered during January, 1981 and received that
compensation. On April 9, 1981, Respondent submitted a bill for
$4,365.00 for the months of February and March. The latter bill has
never been paid and is the subject of litigation between the
Respondent and the City.

17. On January 6, 1981, the Respondent established a procedure
for reviewing and approving pay estimates submitted to the City by
M & E. These pay estimates related to work performed by M & E and
the general contractor on the Project. The five steps in this
procedure were: 1) Monthly pay estimates prepared by M & E; 2) Pay
estimate checked and approved or disapproved by the Respondent; 3)
City Department of Public Works approval based on Respondent's
approval; 4) Approval of Mayor's Office; and 5) Payment by City
accounting office.

18. On January 8, 1981, Mayor Harper, the Respondent, James
F. Connors, who was the City Solicitor, and others met regarding
the Project. Among the topics discussed was the hiring of testing
firms. The Respondent stated at this meeting that the firms being
discussed, including UTS of Mass., were technically qualified to
perform the work for which they applied. The Respondent used as a
point of reference the fact that he and Mr. Crabtree had been
associated in the past with two corporations and certain real
estate dealings. The Respondent did not disclose any ongoing
business relationship in existence between himself and Mr.
Crabtree.

19. On January 14, 1981, Mr. Crabtree was interviewed at City
Hall in connection with the UTS of Mass. proposal to perform
testing services on the Project. Mayor Harper and the Respondent
were present at this interview.

20. On or about January 27, 1981, UTS of Mass. was hired by
Mayor Harper and began to perform testing services on the Project.
UTS of Mass. invoices for payment were submitted directly to the
Mayor's office. During the three months that the Respondent
performed services for the City, Mayor Harper approved UTS of Mass.
invoices upon the advice and recommendation of the Respondent
following Respondent's review and approval.[3]

21. On February 17,1981, the Respondent drafted a letter to
the EPA, signed by Mayor Harper, detailing the scope of the
Respondent's responsibilities as a consultant to the City. Among
these responsibilities was included the management of the City's
cash flow to meet all pay requirements connected with the Project.

22. On March 1,1981, UTS of Mass. submitted an invoice for $1
,297 00 for services rendered from January 30,1981 to February
29,1981. Mayor Harper approved that invoice authorizing payment by
the City on March 6,1981.

23. In late March or early April of 1981, following the
Respondent's resignation from his position with the City, a meeting
was held by the Leominster City Council in connection with the
payment of invoices submitted by contractors working on the
Project. Mr. Crabtree, other contractors on the Project and
representatives of M & E were among those present. At this meeting,
it was agreed that from then on Mr. Crabtree would send UTS of
Mass. invoices to M & E, which would approve and submit them to the
City's Director of Public Works, rather than continuing to send UTS
of Mass. Invoices directly to the City.

24. From January, 1981 through March, 1981, UTS of Mass. had
a contract for services with the Chelsea Jewish Nursing Home. The
Respondent was employed by UTS of Mass. as a consultant in
connection with this contract and received at least $2,759.30 as
payment for his services.


III. Decision


The Respondent has been charged with violations of M.G.L. c.
268A, s.s.19,23(d) and 23(e).

Page 140

Before considering these substantive allegations, the Commission
will address a procedural matter raised by the Respondent.

A. Alleged Failure of Petitioner to Comply With Discovery
Requests

The Respondent alleges that the Petitioner has failed to
produce discoverable documents and, as a result, that Respondent
has been denied a full and fair hearing in this case. For the
reasons set out below, the Commission concludes otherwise.

On July 16, 1982, Respondent served upon the Petitioner an
Amended Request for Production and Inspection of Documents. Among
the list of documents specifically requested were:

"Copies of all sworn and unsworn statements made by
potential Hearing witnesses taken as a result of the
Commission's investigation of the Respondent."
Following conclusion of the hearing in the case, Respondent,

on October 26,1982, made a motion to compel production of documents
pursuant to the above-quoted request, citing certain hearing
testimony as indicating that such a statement by Mayor Harper was
in the possession of the Petitioner and had not been produced.
Petitioner responded that the statement referred to by Mayor Harper
in his testimony was a compilation of notes taken by an
investigator which Mayor Harper had subsequently refused to sign
and adopt as his statement, Petitioner urged that the Commission
utilize the definition of "statements" found in Rule 26 of the
Massachusetts Rules of Civil Procedure:

(A) [A] written statement signed or otherwise adopted or
approved by the person making it, or (B) a stenographic,
mechanical, electrical or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral
statement by the person making it and contemporaneously
recorded.

The Presiding Officer on November 1, 1982 allowed the motion
to compel production to the extent that Petitioner possessed
"statements" as defined in MRCP Rule 26.[4] Petitioner responded
that no such "statements" were in his possession, all having been
provided to the Respondent on or before August 16,1982.

On November 24, 1982, Respondent moved for an independent
examination of Petitioner's documents by the legal advisor to the
Presiding Officer, in order to ascertain whether Petitioner had
complied with the orders of the Presiding Officer, That motion was
denied on that date. In a supplementary document filed on December
31, 1982, Respondent requested that the Commission set forth its
reasons for denying this independent investigation.

The Commission denial of the motion for such an independent
examination is based on two factors: 1) the Commission does not
believe that Petitioner has in his possession any "statement" as
contemplated by MRCP Rule 26; and 2) Respondent was not prejudiced
by this denial.

The definition of "statement" in Rule 26 (see p. 10) narrowly
limits the scope of that term for discovery purposes. That
definition was explicitly adopted by the Presiding Officer in this
case.

Respondent at no time alleges that the document sought is one
signed or otherwise adopted by the Mayor. Mayor Harper specifically
states that he did not comply with the Commission's request that
he sign and adopt it as his statement, bringing the evidentiary
value of the document into question regardless of its origin.
Further, Mayor Harper's characterization of the document in his
testimony as a "recorded statement" not only was in response to
Respondent counsel's suggestion that it was a "recorded statement,"
but, also, does not require the conclusion that the interview was
mechanically or electronically recorded, Absent additional evidence
that Petitioner possessed a "statement" as defined in MRCP Rule 26,
the Commission accepts Petitioner's declarations that the interview
transcript described by Mayor Harper was a compilation of notes of
an investigator and not a transcription of a stenographic,
mechanical, electrical or other recording. Such a compilation does
not satisfy the definition in MRCP Rule 26.7 Mass. Practice 211
(Smith and Zobel 1975). The fact that the Petitioner sought Mayor
Harper's verification of the contents of the document supports this
conclusion.

Page 141

Moreover, Respondent was not prejudiced by his inability to
obtain a copy of this document. Respondent was made aware of its
existence during the hearing on August 6,1982 while cross-examining
Mayor Harper. On the next hearing day, Respondent attempted to
impeach Mayor Harper's direct testimony with the contents of the
document which the Mayor had refused to sign. At this time,
Respondent's counsel refused the Presiding Officer's offer to have
the document marked for identification. Respondent, therefore, was
aware of the existence of the document, its source and, at least
in part, its contents, yet made no demand for its production at
that time, nor during the three days of hearing which followed.

The only testimony of Mayor Harper which is part of the
evidence in this case is that elicited under oath at the hearing.
The proper way for Respondent to attempt to impeach that testimony
is on cross-examination or through rebuttal testimony during the
hearing. The record reflects no effort by Respondent to obtain this
document at a time when it could have been used for these purposes.
Respondent was not prejudiced by being unable to obtain, after the
closing of the hearing, an unsworn document which is not a part of
the record in the case. Therefore, the refusal to grant
Respondent's request for an independent examination of Petitioner's
documents did not deny Respondent a full and fair hearing. See NLRB
v. Interhoro Contractors, Inc., 432 F.2d 854, 860 (2nd Cir. 1970),
cert. denied 402 U.S. 915(1971); also Vermont Board of Health
v. Town of Waterbury, 129 Vt. 168,274 A.2d 495, 499 (1970); also
4 Mezines, Stein, Gruff, Administrative Law, s.23.01 [1] (1982).

B. M.G.L. c. 268A Allegations

1. Section 19

The Commission concludes that the Respondent participated as
a municipal employee of the City of Leominster in a particular
matter in which his business partner, Mr. Crabtree, had a financial
interest, in violation of M.G.L. c. 268A, s.19. Specifically, the
Commission finds by a preponderance of the evidence in the record
that Mr. Emerson, in his role as administrator/engineer for the
City, made or recommended approval of payment of an invoice for
$1,297.00 submitted to the City by UTS of Mass. and that Mr.
Crabtree, Respondent's partner in the Partnership, had a financial
interest in those approvals as sole officer, director and
stockholder of UTS of Mass.

Section 19 states, in relevant part,

that a municipal employee who participates as such an employee
in a particular matter in which to his knowledge [his]
partner. .,has a financial interest [violates this section]...
It shall not be a violation of this section (1) if the
municipal employee first advises the official responsible for
appointment to his position of the nature and circumstances
of the particular matter and makes full disclosure of such
financial interest, and receives a written determination made
by that official that the interest is not so substantial as
to be deemed likely to affect the integrity of the services
which the municipality may expect from the employee...

a. Municipal Employee

The Commission finds that the Respondent was a municipal
employee for the purposes of s.19 during the time that he was
providing services to the City from January to March of 1981.

"Municipal employee" is defined, in relevant part, as a person
performing services for a municipal agency,[5] whether by election,
appointment, contract of hire or engagement, whether serving with
or without compensation, on a full, regular, part-time,
intermittent or consultant basis. M.G.L. c. 268A, s.1(g). Because
the term is specifically defined in the conflict of interest law,
that definition supersedes any other definition which might he used
for other purposes. Compare M.G.L. c. 32, s.1 (definition of
"employee" for state retirement law); also M.G.L. c. 150E, s.1
(definition of "employee" for state labor relations law).

Respondent does not deny performing services for the Mayor and
the City. The definition

Page 142

above does not require a contract, does not require payment for
services and imposes no requirement that a municipal employee's
hiring be in accord with federal EPA procedures, municipal budget
requirements or municipal law, as asserted by Respondent in his
affirmative defense. The performance of services for a municipal
agency makes one a municipal employee and, as a result, subject to
M.G.L. c. 268A, s.19. Admittedly broad in scope, this definition
assures protection of citizens from malfeasance by persons
performing services in municipal government who might cloud their
employment relationship in order to escape liability for unlawful
acts.

b. Participate as such an Employee in a Particular Matter

Participation for purposes of M.G.L. c. 268A, s.19 is defined
as participation in agency action or in a particular matter
personally and substantially as a municipal employee, through
approval, disapproval, decision, recommendation, the rendering of
advice, investigation or otherwise. M.G.L. c. 268A, s.1(j) emphasis
added). A particular matter is any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court. M.G.L. c. 268A,
s.1(k).

The Commission finds that the approval for payment of a UTS
of Mass. invoice constitutes a decision and, therefore, a
particular matter. The Commission also finds that the Respondent
participated in this particular matter personally and substantially
by recommending or advising that Mayor Harper give his required
approval.

The Respondent contends that he had no power to approve
payment of invoices for the Project and, as a result, did not
participate as contemplated in s.19. That Respondent did not
"approve" the invoices may, in one sense, be technically true,
since the legally significant approval on each invoice was that of
Mayor Harper. The evidence, however, supports the finding that any
approval made by Mayor Harper during the tenure of Respondent's
City employment was predicated on the assurance by the Respondent
that such approval was proper,

Mayor Harper and Mr. Connors, the City Solicitor, agree in
their testimony that pay vouchers related to the Project were
accumulating prior to Respondent's hiring because Mayor Harper did
not feel qualified to assess their validity. The Mayor testified
that resolving this back-up problem was the first task for the
Respondent to undertake, and Mr. Emerson testified that this was,
in fact, his first project. Prior to the hiring of UTS of Mass.,
the Respondent set up the procedure for reviewing and approving M
& E pay estimates which clearly establishes his role in reviewing
and approving or disapproving those submissions. The letter of
February 17, 1982, describing Respondent's responsibilities in
connection with the Project, includes the management of the City's
cash flow to meet all pay requirements connected with the Project.
And, while the Respondent was performing services for the City, UTS
of Mass, invoices were sent directly to the Mayor's office for
approval. One such invoice, submitted by UTS of Mass. on March 1,
1981, was approved by Mayor Harper on March 6,1981. These facts
combine to create the inference that, pursuant to his duty to
approve invoices submitted to the City by contractors on the
Project, Mr. Emerson acted on the UTS of Mass. invoice submitted
March 1, 1981. The evidence also supports a finding that the
Mayor's approval of this invoice was based on the recommendation
and advice of the Respondent that such approval should be made.

Petitioner alleged additional violations of M.G.L. c. 268A,
s.19, based on Respondent's participation in 1) the hiring of UTS
of Mass. by the City, and 2) the review and approval of testing
reports made by UTS of Mass. The Commission finds that there is
insufficient evidence to support these allegations.

Page 143

c. In Which to His Knowledge His Partner has a Financial
Interest

The Commission finds that Mr. Emerson knew that Mr. Crabtree
was his partner and that, as sole officer, director and stockholder
of UTS of Mass. Mr. Crabtree had a financial interest in the
approval of the invoices submitted to the City,

The Respondent has maintained throughout these proceedings
that upon Mr. Jones's withdrawal in August, 1980 the Partnership
was dissolved. Therefore, he asserts, he and Mr. Crabtree were no
longer partners after that time, even though the Partnership
business continued for over a year.

In Massachusetts, partnerships are governed by M.G.L. c. 108A.
Partnerships not created for a definite term or for a particular
undertaking are partnerships at will and may be dissolved simply
by the withdrawal of any one of the partners. M.G.L. c. 108A,
s.31(1)(b). Dissolution of a partnership is the change in the
relation of the partners caused by a partner's withdrawal. M.G.L.
c. 108A, s.29. Dissolution is followed by winding-up of partnership
affairs in which the business or property interests of the
partnership are transferred or otherwise disposed of. However, the
partnership does not terminate its existence during the winding-up
period. The partnership itself continues to exist until its affairs
are completely wound-up -- then it is terminated. M.G.L. c. 108A,
s.30.

The Partnership created by the Respondent, Mr. Crabtree and
Mr. Jones was dissolved in accordance with M.G.L. c. 108A, s.29 on
August 1, 1980, the effective date of the withdrawal of Mr. Jones.
The Partnership did not terminate at that time. The Respondent and
Mr. Crabtree remained partners throughout the period that the
Partnership's business continued, including the period in which the
Respondent was employed by the City.

The evidence amply supports a finding that the Respondent knew
he was a partner in the Partnership with Mr. Crabtree during the
relevant period. The Partnership business was continuing, even
renting office space to UTS of Mass. in its Stoneham property. The
Partnership grossed over $23,000.00 in income during 1981. The
Respondent admits receipt of a Federal income tax statement
reflecting his share of the Partnership's income earned in 1981.
Each of these unambiguous facts indicates that, after the
withdrawal of Mr. Jones, the Partnership continued. It is
unreasonable to believe that Respondent ignored all these factors
and relied on an incorrect reading of a single section of state law
to conclude that the Partnership no longer existed.[7]

Mr. Crabtree's financial interest in the approval of UTS of
Mass. is not contested. As sole officer, director and stockholder
of UTS of Mass., he had a financial interest in invoices submitted
for payment by the firm.

d. Disclosure and Exemption

The Commission finds that Respondent's reference to past
business associations with Mr. Crabtree at the January 8, 1981
meeting with Mayor Harper and Mr. Connors was not a "full
disclosure" as called for by the second paragraph of M.G.L. c.
268A, s.19.

Mr. Connors's testimony under oath established that the
Respondent did not disclose any ongoing business relationships with
Mr. Crabtree.[8] Not only was the existence of the Partnership not
disclosed, but, neither was the Respondent's consulting arrangement
with UTS of Mass. or that firm's tenancy in the Partnership's
Stoneham property. Absent full disclosure of relationships, like
the Partnership, which implicate the provisions of M.G.L. c. 268A,
s.19, no valid exemption can be granted by an appointing official.
Assuming arguendo that the Respondent related his past
relationships with Mr. Crabtree in order to ascertain whether a
conflict of interest existed and Mayor Harper, on the advice of Mr.
Connors, determined that a conflict was not present, any exemption
granted would be invalid because of the incomplete disclosure.
Moreover, Respondent at no time claims that he received the written
determination called for in s.19.

The provisions of s.19 are logical and clear. A public
employee should not take official action in matters wherein those
associated with him in the ways listed in s.19 have a financial
interest.

Page 144

See In the Matter of James J. Craven, Jr., Commission Adjudicatory
Docket No, 110, Decision and Order, pp. 13-14, (June 18, 1980),
aff'd. sub nom. Craven v. Vorenberg et al, Suffolk Superior
Civil Action No. 49269 (1981), appeal pending (re: M.G.L. c. 268A, s.6).
The objective is plain: Decisions and actions of a public employee
should be made exclusive of the private financial interests of
those to whom he is related by blood or in business. Exemption is
available, but should be judiciously granted, and only in strict
compliance with the procedure described, in order to protect the
public interest. See, In the Matter of William G. McLean,
Commission Adjudicatory Docket No. 143, Decision and Order, p. 11,
(January 8,1982). No such exemption was granted in this case.

2. Section 23

In the Order to Show Cause initiating these proceedings,
Petitioner alleged that the Respondent violated s.s.29(d) and 29(e)
of M.G.L. c. 268A. in addition to s.19. Following the close of the
adjudicatory hearing, Petitioner chose not to pursue the alleged
violation of s.29(d).

Subsection 29(e) provides that no officer or employee of a
municipal agency shall:

by his conduct give reasonable basis for the impression
that any person can improperly influence or unduly enjoy his
favor in the performance of his official duties, or that he
is unduly affected by the kinship, rank, position or influence
of any party or person.

The Commission concludes that the facts on which a finding of
a violation of 29(e) would be based primarily are those which
comprise the s.19 violation. Those additional facts which
Petitioner would contend justify a separate violation of s.29(e),
i.e. Respondent's failure to disclose his consulting arrangement
with UTS of Mass. and that firm's rental of Partnership office
space, are neither distinct enough nor sufficient in and of
themselves to support a separate and non-cumulative violation of
s.29(e).


IV. Order


On the basis of the foregoing, the Commission concludes that
Mr. Michael W. C. Emerson violated M.G.L. c. 268A, s.19. Pursuant
to its authority under M.G.L. c. 268B, s.4(d), the Commission
hereby orders Mr., Emerson to:

Pay $500 (five hundred dollars) to the Commission as a
civil penalty for participating as a municipal employee of the
City of Leominster in a particular matter in which to his
knowledge his partner, Mr. Thomas Crabtree, had a financial
interest.

The Commission orders Mr. Emerson to pay this penalty of $500
(five hundred dollars) to the Commission within thirty days of the
receipt of this Decision and Order.

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

[1] Commissioner Bernard P. McLaughlin abstained from all matters
in connection with this case ab initio. Commissioner Marver
Bernstien's term expired on or about October 20, 1982. His
successor, Francis M. Burns, was sworn into office on January
10,1983 and has not participated in this Decision and Order.

[2] Although Mayor Harper testified that he did not recall this
meeting, the Commission credits the testimony of Mr. Crabtree, as
corroborated by Mr. John Gorham, in regard to the occurrence and
substance of this meeting.

[3] The Commission makes this finding contrary to the contentions
of the Respondent for reasons set out in the Decision See p. [143].
infra.

[4] As a result of a typographical error, the Ruling on Pending
Motions on November 1, 1982 referred to MRCP Rule 26(b)(2).
Examination of that Rule discloses its application to discovery of
insurance agreements rather than statements. Rule 26(b)(3)
addresses discovery of statements. Neither party raised this
discrepancy nor alleged any prejudice resulting from it.

[5] Municipal agency is defined as "any department or office of a
city or town government and any council, division, board, bureau,
commission, institution, tribunal or other instrumentality thereof
or thereunder." M.G. L. c. 268A, s.1(f).

[6] Respondent submits that his role in connection with invoices
submitted to the City was solely organizational: i.e. he set up a
filing system and organized the approval process. The weight of
the evidence does not support this claim. Respondent was hired
specifically for the expertise he could impart on a phase of the
Project in which the Mayor felt most inadequate: approval of
invoices related to highly technical services rendered in
connection with the Project. These invoices remained unpaid and
were accumulating before Respondent's hiring. In a matter of a few
days, Respondent had made progress in relieving this backlog. If
the solution to this problem was the establishment of a bookkeeping
system, as Respondent alleges, such services could most likely have
been obtained in a way other than by hiring a professional engineer
at $30.00 per hour.

[7] The Commission is not persuaded by Respondent's testimony on
the last day of the hearing that his wife, an attorney, had given
an opinion to the effect that the Partnership no longer existed.

[8] Respondent's testimony that he fully disclosed all his
relationships with Mr. Crabtree, including the "winding-down" of
a real estate partnership, is not supported by the evidence.

End Of Decision