Docket No. 393
In the Matter of Lynwood Hartford, Jr.
Date: February 22, 1991
This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Lynwood Hartford, Jr. (Mr. Hartford) pursuant to section 5 of the Commission's Enforcement Procedures. This Agreement constitutes a consented to final Commission order enforceable in the Superior Court, pursuant to G.L. c. 268B, §4(j).
On January 11, 1989, the Commission initiated, pursuant to G.L. c. 268B, §4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Mr. Hartford in his former capacity as the building inspector and health agent for the Town of Freetown. The Commission has concluded its inquiry and, on June 27, 1990, by a majority vote, found reasonable cause to believe that Mr. Hartford violated §23(b)(2) and §23(b)(3) of G.L. c. 268A.
The Commission and Mr. Hartford now agree to the following findings of fact and conclusions of law:
1. Mr. Hartford was employed, from approximately April, 1986 to July, 1988, as the building inspector and health agent for the Town of Freetown.
2. As the Freetown building inspector and health agent, Mr. Hartford was a municipal employee as that term is defined in G.L. c. 268A, §1(g).
3. As the Freetown building inspector, Mr. Hartford's responsibilities included locally enforcing the state building code and granting building permits. As the Freetown health agent, Mr. Hartford's responsibilities included inspecting local buildings and locally enforcing the state sanitary code.
4. Both as the Freetown building inspector and as the Freetown health agent, Mr. Hartford conducted numerous inspections of property in Freetown owned by a Freetown real estate broker and developer named Paul Bernard (Bernard) and took other official actions concerning Bernard during Mr. Hartford's tenure in those positions. In the fall of 1986, Mr. Hartford participated in bringing Bernard before the state Department of Public Safety in an attempt to have Bernard's contractor's license revoked. In 1986 and 1987, Mr. Hartford conducted many inspections of a building owned by Bernard on South Main Street in Freetown and sought to have the building evacuated for safety reasons in the spring of 1987 when a possible fuel leak in the basement of the building was reported to him.
5. In January, 1987, Bernard sought and Mr. Hartford denied a building permit for a house Bernard was building at 7 Jeffrey Lane in Freetown on the stated ground that Mr. Hartford believed the house to be located in a flood zone and that, before the issuance of a building permit for the property, a registered professional engineer was required to establish the elevation of the house's basement floor. When Bernard subsequently submitted to Mr. Hartford a plan showing the house's elevation, Mr. Hartford, by letter dated February 24, 1987, informed Bernard that he must reject the plan and deny the building permit. On March 26, 1987, however, Mr. Hartford issued a building permit to Bernard for 7 Jeffrey Lane. Then, on April 28, 1987, Mr. Hartford issued a stop work order as to 7 Jeffrey Lane. On June 9, 1987, the Freetown Board of Appeals suspended the building permit issued to Bernard by Mr. Hartford on the grounds that the Jeffrey Lane house was in the flood plain. Subsequently, in a June 25, 1987 letter to the Board of Appeals, Mr. Hartford stated that he did not believe Bernard's Jeffrey Lane house to be in the flood plain. The Board of Appeals, nevertheless, continued in its position that Bernard's house was in the flood plain and that the building permit had been improperly issued by Mr. Hartford, and the matter of the 7 Jeffrey Lane house became a subject of litigation between Bernard and the town. In March, 1988, the litigation was settled and the 7 Jeffrey Lane matter was resolved through the placing of additional fill on the property, a slight modification of the dwelling and a payment to the town by Bernard of $1,000 for litigation costs. Mr. Hartford did not participate in the settlement of the litigation.
6. In 1987, Bernard owned a one-half interest in a lot of undeveloped land on Richmond Road in Freetown that he wished to sell. Bernard had purchased the property in 1974 with Attorney William White (Attorney White) as his partner. On April 16, 1987, Bernard sought to have a percolation test performed on the Richmond Road lot. Mr. Hartford, as health agent, was present to witness the test. No percolation test was attempted, however, because of a high water level in the test pit when it was excavated. Mr. Hartford wrote a report on the abortive test in which he noted "no perc attempted because of big H20 and excellent gravel." Mr. Hartford's report listed Bernard as the owner of the Richmond Road lot.
7. Sometime after the abortive percolation test, Mr. Hartford informed Bernard that he had a buyer for Bernard's Richmond Road property. Mr. Hartford further informed Bernard that he expected to be paid a 5% "referral fee" for supplying the buyer. Bernard and Attorney White agreed to the 5% fee and eventually agreed to pay Mr. Hartford a fee of $2,000.
8. The buyer Mr. Hartford "supplied" was Andre J. Fournier (Fournier), who owned a large landlocked tract of land abutting Bernard's Richmond Road lot to the rear. Fournier had come to Mr. Hartford's office at town hall to examine certain records, and, in the course of seeking information from Mr. Hartford in his official capacity, was told by Mr. Hartford that Bernard's Richmond Road lot was for sale. With Mr. Hartford acting as intermediary. Fournier first agreed to purchase the lot for $35,000. Subsequently, however, the agreed purchase price was raised to $40,000. The closing of the sale of the Richmond Road lot to Fournier took place on September 30, 1987.
9. On September 30, 1987, Bernard directed White to write a check payable to Mr. Hartford in the amount of $1,900 as payment of the referral fee, rather than the agreed $2,000, and a check to himself (Bernard) in the amount of $100. Bernard then took the $1,900 check to Mr. Hartford at Mr. Hartford's town ball office and gave the check to Mr. Hartford telling him that he had deducted the $100 from the agreed $2,000 finder's fee as compensation for a fine in the same amount that Mr. Hartford, in his official capacity, had previously caused Bernard to pay. Mr. Hartford thereupon demanded that Bernard pay him the additional $100. As a result of Mr. Hartford's insistence, Bernard, fearing that Mr. Hartford would retaliate against him using his powers as town health agent and building inspector, paid Mr. Hartford the additional $100.
10. Section 23(b)(2) of G.L. c. 268A prohibits a municipal employee from knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.
11. By participating, in 1987, in a private real estate transaction involving Fournier after Fournier had come to his town office and sought information from him in his official capacity, by seeking a commission from Bernard and Attorney White at a time when Bernard was subject to his official authority, and by demanding the final $100 of the commission from Bernard, Mr. Hartford used his official position to obtain for himself an unwarranted privilege which was of substantial value and which was not properly available to similarly situated persons. In so doing, Mr. Hartford violated G.L. c. 268A, §23(b)(2).
12. 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 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.
13. By seeking and receiving the $2,000 finder's fee from Bernard and Attorney White, and by demanding from Bernard the final $100 of the fee, while Mr. Hartford had official regulatory authority over Bernard, particularly where Mr. Hartford had recently changed his official position concerning Bernard's entitlement to a building permit for 7 Jeffrey Lane, Mr. Hartford, in 1987, acted knowingly, or with reason to know, in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that a person paying Mr. Hartford a finder's fee could unduly enjoy his favor in the performance of his official duties. In so doing, Mr. Hartford violated G.L. c. 268A, §23(b)(3).
In view of the foregoing violations of G.L. c. 268A, 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 Mr. Hartford:
1. that Mr. Hartford pay to the Commission the sum of two thousand dollars ($2,000.00) as a forfeiture of the unlawful economic benefit he received by violating G.L. c. 268A, §23;
2. that Mr. Hartford pay to the Commission the sum of one thousand dollars ($1,000.00) as a civil penalty for violating G.L. c. 268A, §23; and
3. that Mr. Hartford waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this Agreement in any related administrative or judicial proceeding to which the Commission is or may be a party.