January 31, 2011

Disposition Agreement

The State Ethics Commission ("Commission") and Stephen McCarthy ("McCarthy") 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, § 4(j).


On June 18, 2010, 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 McCarthy. The Commission has concluded its inquiry and, on
October 14, 2010, found reasonable cause to believe that McCarthy violated G.L. c. 268A.


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

Findings of Fact

1. Since 2005, McCarthy has been a member of the West Bridgewater Board of Assessors ("BoA"), serving as chairman since 2007.

2. The BoA has three members who are elected to serve four-year terms.

3. Donna Cotter is the West Bridgewater Assessing Department head clerk.

4. Cotter is close friends with McCarthy and his family.

5. Daniel and Marjorie McNally live in West Bridgewater. McCarthy is friends with the McNallys.

6. On a Saturday in January 2010, Daniel McNally telephoned McCarthy with questions about his real estate taxes. McCarthy went over that day to the McNallys' house, bringing with him a real property tax abatement application. McCarthy assisted the McNallys in preparing their abatement application.

7. On January 21, 2010, the McNallys filed for a real property tax abatement. The McNallys sought to reduce their assessment from $280,600 to $240,000. Along with the standard application form, the McNallys submitted a letter to the BoA. The letter states that McCarthy "is familiar with" the McNally's property and "discussed the assessment" with them prior to their submitting the abatement application.

8. At some point in February 2010, [1] the McNallys' abatement application came before the BoA. At this February BoA meeting, McCarthy stated that he had received a call from a friend regarding an abatement. McCarthy referenced the street where his friend resided. McCarthy indicated that the property deserved to have its assessment lowered. Another BoA member told McCarthy that he should recuse himself if the applicants were friends of his. The BoA took no action on the McNallys' abatement application.

9. To grant an abatement, at least two BoA members must approve and sign the disposition section of an abatement application. The standard operating procedure in West Bridgewater is that, once an abatement application has been approved and signed by the BoA, the Assessing Department fills out an abatement certificate, which is sent back to the BoA for the required signatures. Once signed, the certificate is sent by the Assessing Department to the town tax collector, who adjusts the property owners' taxes accordingly.

10. In about March 2010, McCarthy signed both the McNallys' abatement application disposition section and the abatement certificate. McCarthy's signature is the only signature on both of these documents. Neither of the other BoA members approved the abatement. McCarthy provided the values for the abatement on the abatement application disposition section, adjusting the property down from $280,600 to $254,500.

11. McCarthy told Cotter to process the McNallys' abatement, despite it having not been approved by the BoA and it having only one BoA member's signature on both the abatement application and abatement certificate. At the time, McCarthy knew that to grant an abatement, at least two BoA members must approve the applications and sign both the abatement application and the abatement certificate.

12. Cotter processed both the abatement application and abatement certificate and forwarded the certificate to the town tax collector.

13. The abatement resulted in the McNallys receiving a tax reduction of $339.30 for fiscal year 2010 and potentially reducing their tax liability in subsequent years.

Conclusions of Law

14. As the BoA chairman, McCarthy was a municipal employee as defined by G.L. c. 268A, § 1.

15. Section 23(b)(2)(ii) 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.

16. The unilateral approval of an abatement by one BoA member is an unwarranted privilege, as an abatement must be granted by at least two BoA members.

17. McCarthy knowingly used his official position to secure for the McNallys the abatement by, in his capacity as BoA chairman, signing the McNallys' abatement application disposition section and abatement certificate and directing the Assessing Department senior clerk to process the abatement without the requisite BoA approval and number of signatures.

18. This unwarranted privilege was of substantial value because the abatement resulted in the McNallys receiving a tax reduction of $339.30 for fiscal year 2010 and potentially reducing their tax liability in subsequent years.

19. This unwarranted privilege was not properly available to similarly situated individuals (i.e., other property owners seeking an abatement).

20. Therefore, by, in the manner described above, using his official position as BoA chairman to secure for the McNallys a property tax abatement without proper BoA approval, McCarthy knowingly or with reason to know used his official position to obtain an unwarranted privilege of substantial value not properly available to other similarly situated individuals in violation of § 23(b)(2)(ii).

In view of the foregoing violations of G.L. c. 268A by McCarthy, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, based on the following terms and conditions agreed to by McCarthy:

(1) that McCarthy pay to the Commonwealth of Massachusetts, with such payment delivered to the Commission, the sum of $5000 as a civil penalty for violating G.L. c. 268A, § 23(b)(2); and

(2) that McCarthy 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

___ //signed// 1/4/11_ ___ //signed// 1/31/11_

Stephen McCarthy Date Karen L. Nober Date
Executive Director

I, Stephen McCarthy, 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 $5000 to the Commonwealth of Massachusetts, with such payment delivered to the State Ethics Commission.

___ //signed// 1/4/11_
Stephen McCarthy Date



[1] The exact dates are unclear, in part, because BoA meeting minutes do not detail which abatements are discussed.