Public Enforcement Letter 95-3

Linda Marinelli

January 17, 1995

Dear Ms. Marinelli:

As you know, the Commission has been investigating
allegations that you, as an Oak Bluffs selectman, violated the
conflict of interest law, G.L. c. 268A, by your involvement in
the 1993 award of a taxi license to your daughter. The results
of our investigation (discussed below) indicate that the

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conflict of interest law may have been violated in this case. In
view of certain mitigating circumstances (also discussed below),
the Commission, however, does not believe that further
proceedings are warranted. Rather, the Commission has determined
that the public interest would be better served by bringing to
your attention the facts revealed by our investigation and by
explaining the application of the law to such facts, trusting
that this advice will ensure your future understanding of the
law. By agreeing to this public letter as a final resolution of
this matter, the Commission and you are agreeing that there will
be no formal action against you and that you have chosen not to
exercise your right to a hearing before the Commission.

I. Facts

1. Briefly stated, the relevant chronology is as follows:

You were elected to the Oak Bluffs Board of Selectmen
("Board") in April 1984 and served until April 1993. While so
serving, you were the chairman of the Board. You have a
daughter, Diane Habekost ("Habekost").

As of January 1993, there were only four taxi cab company
licenses in Oak Bluffs. The Board had turned down the previous
several requests for additional licenses.

In January 1993, your daughter filed an application with the
Board for a taxi license.

On March 9, 1993, the Board considered your daughter's
license application. You chaired the meeting. You read a letter
from Habekost into the record. You stated you would abstain from
comments because Habekost was your daughter, but you remained in
the room. Various cab owners opposed the license. You chaired
the discussion, and responded to certain comments made from the
audience. Consideration of the license was tabled until the
board could investigate further.

On March 16, 1993, the Board conducted another public
meeting to consider your daughter's application. You abstained
and left the room. Again, various owners opposed the license.
The application apparently failed on a one to one vote with
Selectman Jane Votta voting in favor and Selectman Steven Kenney
("Kenney") voting against.[1]

On March 23, 1993, the Board held another public meeting on
the application; you abstained and left the room. No opposing
owners were present. (Apparently, they were not notified that
the issue would be reconsidered.) The Board voted two to nothing
in favor of the application.

Your term as a Board member ended on April 14, 1993. You
were unsuccessful in your reelection bid.

2. Kenney provided the following information:

From October 1991 to April 15, 1994, Kenney was a selectman.

The first hearing on Habekost's license was on March 9,
1993. Habekost argued that the community was not being serviced
properly by taxi companies and that the town could use another
company. Several taxi owners argued that there was not enough
business and to grant another taxi license would create unfair
competition. The taxi owners argued that in the recent past all
new additional taxi license applications had been denied. After
hearing the concerns of taxi owners, Kenney was confused and did
not want to issue another license, nor deny one, without further
study. Kenney wanted to study the taxi regulations in Oak Bluffs
and to look at why other taxi licenses had been denied in the
past. Kenney moved that the matter be tabled until the following
meeting and that was the action taken.

At the March 16, 1993 meeting, taxi owners again reiterated
that an additional taxi license would create undue competition.
Habekost argued that the people in the town needed better taxi
service. Kenney felt that there were not enough regulations in
place to regulate the taxi business in the town, and there seemed
to be no established procedures to direct the selectmen on
whether or not to approve taxi licenses. A vote was taken and
Kenney voted to deny the issuance of the license, with Votta
voting to issue the license. Since the vote was split 1-1, and
you had abstained, the license was denied.

One or two days after the March 16, 1993 meeting, Kenney
happened to meet you at the Board of Selectmen's office. This
was not a planned meeting and it was simply a coincidence that
you and he met. There was no one else present in the office.
You asked Kenney as to why he had voted not to issue the taxi
license to Habekost. Kenney again expressed his concerns over
taxi regulations. You became very upset. You stated that
Habekost had every right to apply for a taxi license. Kenney
emphasized to you that there was nothing political in the denial
of Habekost's license, and again stated his concerns over taxi
regulations. As the discussion went on, and you

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continued to be agitated, Kenney mentioned to you that the
discussion was not appropriate and you should be concerned about
the appearance of conflict of interest in having such
discussions. You felt that your daughter was being picked on by
the town. Not wanting to discuss the matter further, Kenney
abruptly left the room. Kenney became upset because it seemed as
if you were insinuating that Habekost had been wronged in some
way. The discussion was a short one, three or four minutes.
Although you were visibly upset during the discussion, you did
not make any threats to Kenney. You did not ask Kenney to make
any special accommodations for Habekost, nor did you ask Kenney
to change his mind in voting for the license.

After the March 16, 1993 hearing, the press reported about
the license and the opposition by taxi owners. Kenney began to
receive a number of calls on both sides of the issue. Due to the
number of phone calls he received, Kenney continued to look at
taxi regulations and other taxi issues in Oak Bluffs. Kenney
felt pressured by the community to reconsider whether or not a
license should be issued to Habekost. At the March 23, 1993
meeting, Kenney reconsidered the license issue because (1) he
felt that Habekost was certainly deserving of the right to have a
license, as long as some regulatory issues could be worked out,
and (2) because of the number of phone calls that he received
complaining about other taxi companies.

Kenney cannot recall whether the Habekost license issue was
on the agenda for the March 23, 1993 meeting. If the matter was
on the agenda, the clerk may have put it there because there was
some confusion as to whether or not a formal vote had taken place
at the March 16, 1993 hearing. He believes, but could not
specifically recall, that he probably brought the issue up at the
third meeting because he had been doing his research and had
changed his mind.[2]

3. You provided the following information:

You had no part in assisting Habekost prepare her taxi
license application. Habekost did all the paperwork and all the
representation for her taxi license herself.

You did not help Habekost in preparing for the March 9, 1993
hearing. After the meeting on March 9, 1993, you may have had
discussions with Habekost regarding your conflict of interest
issues and the fact that you would refrain from any participation
in Habekost's license request. Aside from this possible conflict
of interest related discussion, you had no discussions with
Habekost regarding the taxi license. You never gave Habekost any
advice on how to proceed in requesting her license, or how she
should go about persuading the selectmen to approve the license.

You had no recollection of meeting privately with Kenney
prior to the March 23, 1993 meeting. It is possible that you did
meet with Kenney and asked him as to his reasons for having
denied the license, and Kenney informed you that he wanted to
look into past license denials and taxi regulations. You did not
do anything to persuade Kenney to change his vote and grant the
license to Habekost, or in any way ask Kenney to change his vote.

II. Conflict Law

As a member of the Oak Bluffs Board of Selectmen, you were a
"municipal employee" as that term is defined in G.L. c. 268A,
s.1. As such, you were subject to the conflict of interest law,
G.L. c. 268A, generally, and in particular to s.23, the so-called
"code of conduct" section of the conflict of interest law. The
sub-parts of that section which apply to your situation are
s.23(b)(2) and s.23(b)(3). Section 23(b)(2) prohibits any
municipal employee from using or attempting to use his position
to secure an unwarranted privilege of substantial value for
anyone. Its purpose is self-explanatory. Section 23(b)(3)
prohibits a municipal employee from causing a reasonable person,
knowing all of the facts, to conclude that anyone can improperly
influence or unduly enjoy that person's favor in the performance
of his official duties. This latter subsection's purpose is to
deal with appearances of impropriety, and in particular,
appearances that public officials have given people preferential
treatment. This subsection goes on to provide that the
appearance of impropriety can be avoided if the public employee
discloses in writing to his appointing authority (or if he does
not have an appointing authority, files a written disclosure with
the town clerk) all of the relevant circumstances which would
otherwise create the appearance of conflict. The appointing
authority must maintain that written disclosure as a public
record. (If the public employee is elected, his public
disclosure to the town clerk must also be maintained as a public
record.)

There is reasonable cause to believe that you violated
s.23(b)(2). Thus, in the Commission's view, your status of being
a selectman gave you entree to your fellow selectmen, especially
Kenney, who had the deciding vote. You made use of this entree
by having a three to four minute discussion with Kenney as
described above. The discussion took place at a critical point
in time, i.e., between the apparent one to

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one vote not to approve and the reconsideration vote which
resulted in the approval. The entree was of substantial value
because it could influence the ultimate decision. See, Burke,
1985 SEC 246, 251 (access to CEOs for the purpose of having an
opportunity to make an insurance pitch was of "substantial
value"). Using your position in this manner was unwarranted
because the matter in question involved your daughter.[3] Such
entree would not be available to other similarly situated license
applicants or their advocates. Therefore, it appears that you
violated s.23(b)(2) by this conduct.

There is also reasonable cause to believe that your conduct
violated s.23(b)(3). Thus, your discussing the license matter
with Selectman Kenney between the second and third hearings
created an appearance of impropriety. It would seem that your
conduct as a selectman could be unduly influenced by kinship.
The appearance of impropriety is underscored by the fact that the
license in question was very valuable, the meeting took place
shortly before Selectman Kenney voted to reconsider, the
opponents were apparently not given notice that the matter would
be reconsidered, and for a number of years all applications for
new taxi licenses had been denied.

The Commission could have directed the staff to commence
adjudicatory proceedings in which, if you were found to have
violated G.L. c. 268A, s.23, fines of up to $2,000 for each
violation could have been imposed. The Commission chose to
resolve this matter with this letter, however, because the
violations appear to have involved a spontaneous and abbreviated
outburst on your part which, according to Selectman Kenney, did
not influence his decision. We also note that you fully
cooperated with the Commission in its investigation.

III. Disposition

Based on its review of this matter, the Commission has
determined that the sending of this letter should be sufficient
to ensure your understanding of, and future compliance with, the
conflict of interest law. This matter is now closed.



-------------------------
[1] It is not entirely clear whether Kenney voted against
the application or simply indicated he was not prepared to vote
in favor of it. In any event, the application failed to obtain
the necessary two affirmative votes.

[2] Board of Selectmen Clerk Janice Wright had no
recollection as to how the license matter was brought up again at
the third hearing.

[3] Your involvement in a matter in which your daughter had
a financial interest raises an issue under s.19 of the conflict
of interest law, which prohibits a municipal employee from
participating as such in a particular matter in which to her
knowledge an immediate family member (among others) has a
financial interest. It is not clear whether in meeting with
Selectman Kenney you were "participating" in the license matter
within the meaning of s.19; in any event, the conduct seems more
appropriately analyzed under s.23.

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