Docket No. 667

In the Matter of Kendell Longo

Date: February 5, 2003

Disposition Agreement

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

On October 16, 2001, 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 Longo. The Commission has concluded its inquiry and, on May 30, 2002 and September 5, 2002, found reasonable cause to believe that Longo violated G.L. c. 268A, §§ 19 and 23(b)(2).

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


Findings of Fact


1. Between 1996 and 1999, Longo was employed as the Town of Rowley Health Department secretary. As such, Longo was a municipal employee as that term is defined in G.L. c. 268A.

2. Longo's brother, Brett Longo ("Brett"), purchased the property at 31 Red Pine Way in Rowley in April 1997. Brett is the president, treasurer and clerk of the B.J. Longo Corporation and has a financial interest in the corporation.

3. In June 1997, Brett and/or B.J. Longo Corporation and an engineer submitted a sanitary disposal system repair plan fo4 31 Red Pine Way to the Rowley Board of Health. According to the plan, Brett and/or B.J. Longo Corporation intended to build a duplex on the property and install a new septic system. The old septic system that serviced an existing carriage house was to be collapsed and backfilled, the leaching area that serviced the carriage house abandoned, and the carriage house razed. The existing well was to be tested and inspected. The then-health agent signed off on the plan on September 17, 1997, and Brett and/or B.J. Longo Corporation was issued a disposal system construction permit by the Board of Health.

4. A disposal system was constructed at 31 Red Pine Way.

5. On December 30, 1998, Longo issued a certificate of compliance for 31 Red Pine Way by signing the inspector line on the certificate.

6. A certificate of compliance certifies that a septic system has been designed and installed in accordance with the Title V and all applicable local requirements. Title V is the portion of the state environmental code governing the siting, construction, inspection and maintenance of septic systems. Until a certificate of compliance has been issued, sewerage cannot be discharged into a septic system.


Certificate of Compliance


7. A municipality cannot issue a certificate of compliance until several steps have occurred:

a. an as-built plan must be submitted to the Board of Health;

b. the disposal system installer and designer must certify in writing on the certificate of compliance that the system has been constructed in accordance with Title V, the approved design plan, and any local requirements, and that any changes to the design plan have been reflected on as-built plans, which have been submitted to the Board of Health by the designer; and

c. a sanctioned representative of the Board of Health must inspect the system to determine if the work has been completed in accordance with Title V, the disposal system construction permit, and any local requirements.

8. When Longo issued the certificate of compliance for 31 Red Pine Way on December 30, 1998, she knew that (a) no site inspection by a sanctioned Board of Health representative had been conducted on the property; (b) no "as-built" plan was on file; (c) the installer and designer had not signed the certificate of compliance; (d) Brett and/or B.J. Longo Corporation owned the property; (e) Brett and/or B.J. Longo Corporation was involved in developing the property; and (f) the property would be more marketable and therefore more valuable with a certificate of compliance.

9. Because Brett and/or B.J. Longo Corporation owned 31 Red Pine Way and applied for the certificate of compliance either on Brett's behalf or on behalf of B.J. Longo Corporation, Brett directly and/or through B.J. Longo Corporation had a financial interest in having the certificate issued (as the company was working on the project) and the property was more marketable with a septic system certificate of compliance.


Occupancy Permit


10. On January 2, 1999, Longo also signed on behalf of the Board of Health an occupancy permit for 31 Red Pine Way.

11. A municipality cannot issue an occupancy permit for a dwelling if a certificate of compliance has not been issued. An occupancy permit is required in order for a structure to be considered habitable. An occupancy permit may not issue until, among other required approvals, a certificate of compliance for the septic system is obtained. Brett directly and/or through B.J. Longo Corporation had a financial interest in having the occupancy permit ussued because it, like the certificate of compliance, makes the property more marketable.

12. When Longo signed the certificate of occupancy for 31 Red Pine Way on January 2, 1999, she knew or had reason to know that the required approvals for such a certificate of compliance had not been obtained.


Conclusions of Law


13. Section 19 of G.L. c. 268A prohibits a municipal employee from participating as such an employee in a particular matter in which to his knowledge an immediate family member has a financial interest.

14. The decisions to issue the septic system certificate of compliance and sign the occupancy permit on behalf of the Board of Health for 31 Red Pine Way were particular matters. [1]

15. Longo participated [2] in the particular matters by deciding to issue the septic system certificate of compliance and by signing the occupancy permit as an employee of the health department.

16. Brett is Longo's brother and therefore an immediate family member. [3]

17. As owner of the property and through his interest in B.J. Longo which was developing the property, Brett had a financial interest in having the septic system certificate of compliance and the occupancy permit issued because the property would be habitable, more marketable and therefore more valuable.

18. Longo knew of her brother's financial interests at the time she signed the septic system certificate of compliance and occupancy permit.

19. Accordingly, by signing the septic system certificate of compliance and the occupancy permit for 31 Red Pine Way, as set forth above, Longo participated in her official capacity in particular matters in which she knew an immediate family member had a financial interest, thereby violating G.L. c. 268A, § 19 on each occasion.


Section 23(b)(2)


20. 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 her position to obtain for herself or others an unwarranted privilege of substantial value, which is not properly available to similarly situated individuals.

21. Longo used her official position as health department secretary to access, sign and issue the septic system certificate of compliance and sign the occupancy permit for 31 Red Pine Way.

22. As indicated above, Brett and/or B.J. Longo Corporation were not entitled to a certificate of compliance for 31 Red Pine Way at the time of its issuance. In turn, because a valid certificate of compliance had not issued, Brett and/or B.J. Longo Corporation were not entitled to an occupancy permit. Thus, Longo knew or had reason to know that her issuance of the certificate of compliance and signing of the occupancy permit under those circumstances were uses of her official position to secure for Brett and/or B.J. Longo Corporation unwarranted privileges of substantial value that were not properly available to similarly situated persons. Thus by so doing, Longo violated G.L. c. 268A, § 23(b)(2) on each occasion.


Resolution


In view of the foregoing violation of G.L. c. 268A by Kendell Longo, 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 Kendell Longo:

(1) that Kendell Longo pay to the Commission the sum of $4,000 as a civil penalty for violating G.L. c. 268A, §§ 19 and 23(b)(2); and

(2) that Kendell Longo 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.

STATE ETHICS COMMISSION

By:

//ss//
Peter Sturges, Executive Director

Dated: February 5, 2003

//ss//
Kendell Longo

Dated: January 7, 2003

I, Kendell Longo, have personally read the above Disposition Agreement. I understand that it is a public document and that by signing it, I will have agreed to all of the terms and conditions therein including payment of $4,000 to the State Ethics Commission.

//ss//
Kendell Longo

Dated: January 7, 2003






[1] "Particular matter" means 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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, § 1(k).

[2] "Participate," participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, § 1(j).

[3] "Immediate family" means the employee and his spouse, and their parents, children, brothers and sisters.