Docket No. 404
In the Matter of Stephen Malcolm


Appearances: Karen Gray, Esq., Counsel for the Petitioner; Commissioners Hennessey, Ch., Doty, Epps, Gleason, Jarvis;

Presiding Officer: Archie M. Epps, III

On January 30, 1991, the Petitioner filed a Motion for Summary Decision, pursuant to the Commission’s Regulations, 930 CMR 1.01(f)(2).[1] The Motion asserted that Respondent Stephen Malcolm had failed to file an answer to a December 18, 1990 Order to Show Cause which alleged that he had violated G.L. c. 268A, §23(b)(3)[2] through misconduct as a member of the Hull Board of Assessors.  For the reasons stated below, we grant the Petitioner’s Motion and order the Respondent to pay a civil penalty of $2000.

Under 930 CMR 1.01(6)(f)(2), the Commission may enter a summary decision in favor of the Petitioner when the record discloses the Respondent’s failure to file required documents, to respond to notices or correspondence, to comply with orders of the Commission or a Presiding Officer, or otherwise indicates a substantial failure to cooperate with the adjudicatory proceeding.  The record in this case amply warrants the entry of a summary decision in favor of the Petitioner.  Despite notice, and, in particular, a diligent effort by the Commission’s Legal Advisor to explain the procedural requirements of G.L. c. 268B, and 930 CMR, the Respondent has failed to file an answer to the December 18, 1990 Order to Show Cause, has failed to respond either orally or in writing to any of the subsequent requests, notices or orders of the Petitioner or Presiding Officer, and has failed to appear at a hearing to show cause why summary judgment should not be entered against him.

The December 18, 1990 Order to Show Cause alleged that the Respondent, a member of the Hull Board of Assessors, had improperly or unduly influenced the assistant assessor to increase the assessed value of the home owned by Colleen Fleming, Malcolm’s former girlfriend, in violation of G.L. c. 268A, 23(b)(3).  Specifically, the Order alleges that the facts which Malcolm conveyed to the assistant assessor were false, resulting in an improper $2,000 tax increase for Fleming, and that Malcolm had failed to disclose the fact that he and Fleming had recently ended a personal relationship on bad terms.  The Respondent’s failure to defend or otherwise respond to these allegations constrains us to conclude that he violated G.L. c. 268A, §23(b)(3). Compare, In the Matter of Richard N. Singleton, 1990 SEC 476 (violation found where Fire Chief had reason to know that his remarks concerning the timing of Fire Department inspections would be perceived as an attempt to use his official position to secure a private contractual arrangement to benefit his son); In the Matter of D. John Zeppieri, 1990 SEC 448 (violation found where Chairman of Licensing Board negotiated a real estate exclusive from an applicant before the Board at a time when the applicant’s license was under consideration for revocation).

In light of the seriousness with which we view this violation, we conclude that a maximum statutory fine of two thousand dollars is appropriate. Accordingly, pursuant to G.L. c. 268B, §4(j)(3), we hereby ORDER Respondent Stephen Malcolm to pay to the Commission a civil penalty of two thousand dollars within thirty days (30) of receipt of this ruling. 

Date Authorized: September 11, 1991

[1] 930 CMR 1.01(6)(f) provides as follows:

(1) Any Party may with or without supporting affidavits move for summary decision in his favor, as to all or part of a matter. If the motion is granted as to part of the matter and further proceedings are necessary to decide the remaining issues, a hearing shall be so held. Such a motion may be granted only by the Commission.

(2) When the record discloses the failure of the Respondent to file documents required by these Rules, to respond to notices or correspondence, or otherwise indicates a substantial failure to cooperate with the Adjudicatory Proceeding, the Presiding Officer may issue an order requiring that the Respondent show cause why a summary decision should not be entered against him. If the Respondent fails to show such cause, a summary decision may be entered in favor of the Petitioner. Any such summary decision shall be granted only by the Commission, shall be final Decision, and shall be made in writing as provided in §9(m) of these Rules.

[2] Under G.L. c. 268A, §23(b)(3), a municipal employee may not:

act 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. It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, disclose in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.