Docket No. 510

In the Matter of Frank Green

November 22, 1994

Disposition Agreement





This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Frank Green
("Green") pursuant to s.5 of the Commission's Enforcement
Procedures. This Agreement constitutes a consented to final order
enforceable in the Superior Court, pursuant to G.L. c. 268B,
s.4(j).

On August 9, 1993, the Commission initiated, pursuant to G.L.
c. 268B, s.4(a), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A, by Green. The
Commission has concluded its inquiry and, on October 19, 1994,
found reasonable cause to believe that Green violated G.L. c. 268A.

The Commission and Green now agree to the following findings
of fact and conclusions of law:

1. At all relevant times, Green was employed as the building
inspector for the Town of Richmond. This was a part-time position
to which Green was appointed by the Richmond Board of Selectmen and
for which he was paid $100 per month. As the Richmond building
inspector, Green was a municipal employee as that term is defined
in G.L. c. 268A, s.1(g).[1]

2. Green's official duties as the Richmond building
inspector included issuing building permits for construction done
in the town and performing inspections to ensure that all work
performed pursuant to such permits complied with the state building
code.

3. At all relevant times, Green was also self-employed as a
carpenter and building contractor.

4. In 1992, Harold Dupee ("Dupee") owned a lakefront cottage
at Richmond Shores which had been heavily damaged by fire and which
Dupee wished to replace with a new house. Because of the cottage's
lakefront location, Dupee was required to build his new house on
the cottage's existing floor dimensions or "footprint". In
November 1992, Green was present in his capacity as building
inspector when Dupee measured the floor dimensions of the burned
cottage. These measurements were used to determine the dimensions
of Dupee's new house and were apparently somewhat greater than the
dimensions of the existing cottage shown on the Richmond Town
Assessor's card for the property.

Soon after the measurements of the burned Dupee cottage were
made, Green was hired by Dupee to build a house to replace the
burned cottage. After he was hired by Dupee, Green filled out an
application for a building permit to build Dupee's new house and
signed the permit as the applicant. On December 23, 1992, Green
again signed the permit application, this time in his capacity as
the Richmond building inspector, and obtained the required
signatures of the Richmond zoning enforcement officer and the
Richmond Board of Health. Green then issued the permit, allowing
Green to proceed with the construction of Dupee's new house.

In the course of Green's construction of Dupee's new house, an
issue was raised as to whether the new house was larger than the
cottage it replaced.[2] While the evidence on this point is
contradictory, Green concedes that the floor area of the new house
is approximately 80 square feet larger than the footprint of the
old cottage. Green attributes this difference to a lack of care on
his part in checking Dupee's measurements of the footprint of the
burned cottage, rather than deliberate action on Green's part. In
April 1993, the Richmond Zoning Board of Appeals approved a
special permit and variance for the new house without deciding the size
issue.

Green was paid almost $20,000 for his labor in building
Dupee's house; Dupee provided the materials.[3]

5. Green, in his capacity as the Richmond building
inspector, issued the following additional building permits where
Green had personally applied for the permit and where Green was the
contractor hired by the owner to perform the permitted work:

a. on January 10, 1990, a permit to raise a house and
install a new foundation at a Richmond Shores property;

b. on August 22, 1990, a permit to construct dormers at a
Whitewood Cottages property;

c. on August 29, 1990, a permit to rebuild a bathroom,
replace windows and other work at a Branch Farm property;

d. on September 26, 1990, a permit to expand the kitchen and
construct a screened porch at a Whitewood Cottages
property;

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e. on May 11, 1991, a permit to add a bedroom to a Richmond
Shores property;[4]

f. on July 10, 1991, a permit to add sunshades at a Richmond
Shores property;

g. on September 9, 1992, a permit to construct a shed at an
East Street property;[5] and

h. on November 18, 1992, a permit to construct an addition
and a garage at a Richmond Shores property.

6. Section 19 of G.L. c. 268A, except as permitted by
paragraph (b) of that section, prohibits a municipal employee from
participating as such an employee in a particular matter in which
to his knowledge he or an immediate family member has a financial
interest. None of the exceptions of s.19(b) apply in this case.

7. The decisions to issue the building permits listed in
paragraphs 4 and 5 above were particular matters.

8. As set forth in paragraphs 4 and 5 above, Green
participated as the Richmond building inspector in those particular
matters by issuing the building permits.[6]

9. Green, as the contractor performing the permitted work,
had a financial interest in the issuance of each of the above-
listed building permits. Green knew of his financial interest at
the time he issued each of the building permits.

10. Accordingly, by issuing the building permits listed above
in paragraphs 4 and 5, Green participated in his official capacity
as the Richmond building inspector in particular matters in which
he knew he had a financial interest. In so doing, Green violated
G.L. c. 268A, s.19.

11. Section 23(b)(3) of G.L. c. 268A prohibits a municipal
employee from knowingly, or with reason to know, acting in a manner
which would cause a reasonable person, having knowledge of the
relevant circumstances, to conclude that any person can improperly
influence or unduly enjoy his favor in the performance of his
official duties, or that he is likely to act or fail to act as a
result of kinship, rank, position or undue influence of any party
or person.

12. By issuing building permits for work he would perform and
by accepting construction contracts from property owners requiring
building permits which he would issue, Green knowingly, or with
reason to know, acted in a manner which would cause a reasonable
person, with knowledge of the relevant circumstances, to conclude
that persons hiring Green as their contractor could unduly enjoy
his favor in the performance of his official duties as building
inspector. This was particularly the case with respect to Green's
official and private dealings with Dupee. Under the above-
described circumstances, a reasonable person would conclude that
Green was, as building inspector, less strict with Dupee concerning
conforming the dimensions of Dupee's new house with the footprint
of the burned cottage than Green would otherwise have been, had
Dupee not hired Green to build the new house. Accordingly, Green
violated s.23(b)(3).

In view of the foregoing violations of G.L. c. 268A by Green,
the Commission has determined that the public interest would be
served by the disposition of this matter without further
enforcement proceedings, on the basis of the following terms and
conditions agreed to by Green:

(1) that Green pay to the Commission the sum of five
hundred dollars ($500.00)[7] as a civil penalty for
violating G.L. c. 268A as stated above; and

(2) that Green waive all rights to contest the findings
of fact, conclusions of law and terms and conditions
contained in this Agreement in this or any other related
administrative or judicial proceedings to which the
Commission is or may be a party.

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

[1] Green resigned as the Richmond building inspector in 1993.

[2] In the course of this controversy, Green was advised that he
might have a conflict of interest and Green self-reported his
activities to the Commission. As soon as Green became aware of the
conflict of interest, Green ceased issuing building permits for his
own work.

[3] Green was not the only contractor who worked on the
construction of Dupee's house. Other contractors did the site
work, installed the foundation, painted the house and did the
landscaping.

[4] In this case the building permit application was signed by the
property owner rather than by Green.

[5] In this case the building permit application was signed by both
Green and the property owner.

[6] Green did not, however, inspect the work he performed pursuant
to the building permits he issued. All inspections of Green's work
ere performed by Richmond's alternate

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building inspector. In applying for and issuing these building
permits for work he performed, Green was apparently following an
established practice in Richmond which was apparently known to
Green's appointing authority, the Board of Selectmen. Following an
established practice which violates the conflict of interest law
does not, however, obviate or excuse the violation. Nevertheless,
it may be a mitigating circumstance to be considered in assessing
the civil penalty imposed for the violation, as set forth above.

[7] That Green's penalty is not higher reflects the fact that Green
self-reported this matter to the Commission and ceased issuing
building permits for his own work as soon as he was made aware of
the conflict of interest. In addition, Green's violations are
mitigated by the fact that Green was following an established,
albeit unlawful, practice in issuing the building permits for his
own work which was known to his appointing authority, the Board of
Selectmen, and by the fact that Green did not inspect his own work
(which was inspected by the alternate building inspector).

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