In the Matter of Reginald Newcomb
January 21, 2009
The State Ethics Commission and Reginald Newcomb enter into this Disposition Agreement pursuant to section 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, section 4(j).
On September 21, 2007, the Commission initiated, pursuant to G.L. c. 268B,
section 4(a), a preliminary inquiry into possible violations of the conflict of interest law,G.L. c. 268A, by Newcomb. The Commission has concluded its inquiry and, on January 16, 2008, found reasonable cause to believe that Newcomb violated G.L. c. 268A.
The Commission and Newcomb now agree to the following findings of fact and conclusions of law:
Findings of Fact
1. At all times relevant, Newcomb was an elected member of the Town of Rockland Planning Board. Planning Board positions have been designated special municipal employee positions for conflict of interest law purposes.
2. In his private capacity, Newcomb performs real estate construction and rehabilitation work.
3. In May 2006, Newcomb purchased two adjacent residential lots on Hingham Street in Rockland ("the Hingham Street Properties"). He then subdivided one of the lots into two lots and built three duplex condominium units on the three Hingham Street lots.
4. In or about June 2006, Newcomb purchased a lot on Salem Street ("the Salem Street Property") in Rockland. As detailed below, Newcomb then attempted to divide the Salem Street Property into two lots.
5. At all times relevant, the Hingham Street Properties and the Salem Street Property were owned by the Rehab Realty Trust ("the Trust"). Newcomb is the sole trustee of the Trust. He and his wife are the Trust's beneficiaries.
Newcomb Represented the Trust Before Rockland Agencies
6. The Hingham Street Properties came before the Planning Board for site plan review on four occasions between September, 2006 and February, 2007. On each of these occasions, Newcomb stepped down from the Planning Board and presented the site plan for the Hingham Street Properties on behalf of the Trust.
7. On March 5, 2007, a State Ethics Commission investigator contacted Newcomb regarding his presentations before the Planning Board. During this conversation, Newcomb confirmed that he made the presentations on behalf of the Trust, acknowledged that the conflict of interest law prohibited him from doing so, and agreed not to further represent the Trust before the Planning Board.
8. Notwithstanding his March 5, 2007 conversation with the investigator, Newcomb subsequently took the following actions on behalf of the trust:
a. On March 21, 2007, Newcomb presented a Form A application  for the Salem Street Property to the Planning Board on behalf of the Trust.
b. On April 12, 2007, Newcomb met with the Town Clerk on behalf of the trust and requested a certificate of approval for the Salem Street Property Form A application, based on the Planning Board's failure to follow proper procedures. Applicable regulations provide that the Planning Board has 21 days to act on a Form A application. If no action is taken, the application is constructively approved. The Town Clerk issued the certificate; however, the Registry of Deeds declined to file the certificate.
c. Also on April 12, 2007, Newcomb, as trustee of the Trust, sent a letter to the Planning Board stating that the Salem Street Property Form A application had been constructively approved.
d. On May 3, 2007, Newcomb filed a second Form A application for the Salem Street Property with the Town Clerk.
e. On June 13, 2007, Newcomb again presented the Form A application for the Salem Street Property to the Planning Board on behalf of the Trust.
f. On June 19, 2007, Newcomb, as trustee of the Trust, sent a letter to the Zoning Enforcement Officer, again requesting a certificate of approval for the Salem Street Property Form A application, based on the Planning Board's failure to act on the application within the required 21 days.
g. On August 22, 2007, during a Planning Board meeting, Newcomb inquired about the Planning Board signing off on occupancy permits for the Hingham Street Properties.
h. On August 23, 2007, Newcomb represented the Trust during a Planning Board site visit of the Hingham Street Properties. Following the site visit, Planning Board members signed off on two occupancy permits for the Hingham Street Properties.
i. On August 31, 2007, Newcomb represented the Trust during another Planning Board site visit of the Hingham Street Properties.
Newcomb Removed Extension Request from Planning Board File
9. On May 23, 2007, Rockland Town Counsel provided an opinion to the Planning Board recommending denial of the Salem Street Property Form A application.
10. Also on May 23, 2007, the Planning Board informed Newcomb that it would deny the Salem Street Property Form A application unless Newcomb could provide sufficient information to address certain issues raised by Town Counsel.
11. Also on May 23, 2007, Newcomb, through town counsel, provided the Planning Board with a written extension request, allowing the Planning Board until June 18, 2007 to act on the Salem Street Property Form A application. The extension request read, in part, "We will present additional evidence on 6/13/07."
12. On June 13, 2007, the Planning Board denied the Salem Street Property Form A application, based on the issues identified by Town Counsel.
13. On June 14, 2007, Newcomb called Planning Board chair Robert Baker and requested access to the Planning Board office for the purpose of verifying the date that he filed the Salem Street Property Form A application. Baker granted Newcomb's request, but only for the limited purpose of checking the application date.
14. Newcomb then contacted Board of Selectman Secretary Mary Ann Stewart, who had the key to the Planning Board Office, and asked that she accompany him to the Planning Board Office and unlock the door. She did so. Contrary to Baker's instructions, Newcomb removed the file for the Salem Street Property from the Planning Board office and made a copy of the file. He then returned the file to the Planning Board office.
15. After Newcomb returned the file on June 14, 2007, Baker reviewed the file and determined that the written extension request was missing from the file. When Baker told Newcomb the extension request was missing, Newcomb delivered his copy to Baker. Also on June 14, 2007, Newcomb met with the Town Clerk and requested a certificate of approval for the Salem Street Property Form A application based on the Planning Board's failure to act on the application within the required 21 days.
Conclusions of Law
16. As a Rockland Planning Board member, Newcomb was at all times relevant a special municipal employee as defined by G.L. c. 268A section 1(n).
17. Section 17(c) of G.L. c. 268A prohibits a municipal employee, otherwise than in the proper discharge of official duties, from acting as agent for anyone in connection with any particular matter in which the same city or town is a party or has a direct and substantial interest.
18. Section 17 applies less restrictively to special municipal employees. A special municipal employee is subject to section 17(c) only relative to a particular matter (a) in which he has participated, (b) which is or within one year has been a subject of his official responsibility, or (c) which is pending before his own agency.
19. The Form A application for the Salem Street Property was a particular matter in which the town had a direct and substantial interest.
20. The site plan and occupancy permits for the Hingham Street Properties were also particular matters in which the town had direct and substantial interests.
21. Although Newcomb did not participate as a Planning Board member in the above-described particular matters, they were subject to his official responsibility as a Planning Board member. As a result, section 17(c) prevented Newcomb from acting as agent for the Trust in connection with these particular matters.
22. As detailed above, Newcomb repeatedly acted as agent for the Trust in connection with these particular matters.
23. Newcomb's actions as agent for the Trust were not taken in the proper discharge of his official duties as a Planning Board member.
24. Therefore, Newcomb repeatedly violated section 17(c).
25. 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 of substantial value not properly available to similarly situated individuals.
26. Newcomb's removal of his extension request from the Planning Board file for the Salem Street Property was a privilege.
27. But for his Planning Board member position, Newcomb would not have been given unsupervised access to the Planning Board file. By requesting access from the Planning Board chair, Newcomb knowingly or with reason to know used his official position in an attempt to secure this privilege for the Trust.
28. Where Newcomb removed the extension request in an attempt to gain constructive approval of his Form A application, his removal of the document was of substantial value.
29. Newcomb's removal of the extension request was unwarranted because the document was part of the official record and was relied upon by the Planning Board, which had already denied the Salem Street Property Form A application.
30. Therefore, Newcomb violated section 23(b)(2) as described above, by knowingly or with reason to know, using or attempting to use his official position as a Planning Board member to secure for the Trust an unwarranted privilege of substantial value not otherwise properly available to similarly situated individuals.
In view of the foregoing violations of G.L. c. 268A by Newcomb, 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 Newcomb:
(1) that Newcomb pay to the Commission $5,000.00 as a civil penalty for violating G. L. c. 268A sections 17 & 23; and
(2) that Newcomb waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.
STATE ETHICS COMMISSION
Karen L. Nober
Date: January 21, 2009
Date: January 15, 2009
I, Reginald Newcomb, 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 $5,000.00 to the State Ethics Commission.
Date: January 15, 2009
 G.L. c. 41 section 81L excludes certain properties from the definition of "subdivision" based on the existence of certain conditions. Form A applications are made by applicants to a Planning Board to demonstrate the inapplicability of the Subdivision Control Law to their property.