Docket No.: 194


IN THE MATTER OF MICHAEL W. C. EMERSON AND
JOHN E.GREELEY


Date: October 18, 1983



THE COMMISSION'S RULING ON THE RESPONDENTS' MOTION FOR SUMMARY DECISION


Page 160

The Respondents' Motion for Summary Decision is granted
because the statute of limitations bars the Petitioner from
bringing this action.

Pursuant to the precedent established in the Decision and
Order of In the Matter of John P. Saccone and Edmund W. DelPrete
[1982 Ethics Commission 87], the Commission finds that the
Petitioner is bound to a three year statute of limitations with
respect to this enforcement proceeding, and that the statute of
limitations begins to run at the time of the receipt of the
gratuity,[1] unless there is evidence that the violation was
"fraudulently concealed" or "inherently unknowable." In the Matter
of Saccone and Delprete, supra, [94]. In the Saccone end Delprete
matter, the Commission found that in causes of action based on an
inherently unknowable wrong, the limitations period starts to run
when the Petitioner reasonably should have learned that he was
harmed by the Respondent's conduct. Id.

The alleged violations in this case took place in November,
1976, and July, 1977. The Petitioner presented evidence that it
first became aware of the alleged violations in March, 1981 through
a newspaper article, approximately four to five years after the
alleged violations occurred. The Petitioner maintains that the
statute of limitations did not begin to run until the Petitioner
became aware of the violations because the violations were
inherently unknowable. The Commission disagrees. This case is
factually indistinguishable from the Saccone and DelPrete
matter.[2] In the instant case, there were other "disinterested
persons," the attorney general and the appropriate district
attorneys, capable of enforcing s.3 and the "petitioner did not
show that [it] [was] unable, despite due diligence, to discover the
violation[s] earlier.. ." Id., at [98]. In invoking the statute of
limitations, the Commission notes that, unlike the substantive
sections of G.L. c. 268A, s.23 is also enforceable by an agency
head, who may take administrative action against an employee for
violations of the section. Thus, in 1976 and 1977, Respondent
Greeley's appointing official was capable of bringing an action
against him for the conduct alleged and failed to act within the
required time. Id., at [99].

In the alternative, the Petitioner argues that the Respondents
fraudulently concealed the violations thereby tolling the statute
of limitations until the Petitioner discovered the alleged
wrongdoing. The Petitioner argues that the act of concealment
involved Respondent Greeley signing Respondent Emerson's name to
the credit card receipts after he used the latter's credit card.
The Commission rejects this position. The act of fraudulent
concealment must be accompanied by positive steps done with the
intention to deceive. Id. at [94]. The Commission is unpersuaded
that Respondent Greeley signed the credit card receipts with the
intent of hiding any wrongdoing. The overwhelming inference in that
he signed the receipts in order to utilize the credit card.

Based on the facts presented before the Commission, the
statute of limitations began to run at the time the violations
occurred. Therefore, the Commission follows the holding of the
Saccone and Delprete matter.

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

[1] In its Order to Show Cause, dated March 16,1983, the Petitioner
alleged that Respondent Emerson violated G.L. c. 268A, s. 3(a) by
giving Respondent Greeley something of substantial. value for or
because of official acts performed or to be performed by Greeley.
municipal employee, Greeley, in turn, was charged with violating
s.3(b) for accepting something of substantial value from Emerson
based on the performance of official acts on his (Greeley's) part
and with violating s. 23(e), by giving the impression that Emerson
could unduly enjoy his [Greeley's] favor in the performance of his
official duties.

[2] In Saccone and Delprete the Commission found that the
Petitioner's failure to discover the alleged violations did not
toll the statute of limitations unless the violations (which
involved the same sections of G.L. c. 268A at issue here) were
inherently unknowable. Id.. at [98].


End Of Decision