Docket No. 634

In the Matter of Joseph S. Tevald

July 31, 2001

Disposition Agreement



This Disposition Agreement is entered into between the State
Ethics Commission and Joseph S. Tevald pursuant to Section 5 of the
Commission's Enforcement Procedures. This Agreement constitutes a
consented-to final order enforceable in Superior Court, pursuant to
GL. c. 268B, s.40).

On April 14,2000, the Commission initiated, pursuant to G.L.
c. 268B, s.4(a), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A, by Tevald. The
Commission has concluded its inquiry and, on April 4, 2001, found
reasonable cause to believe that Tevald violated G.L. c. 268A,
s.23(b)(3).

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

Findings of Fact

1. Tevald is a selectman in the Town of Newbury, an office
he has held since 1987. As a member of the Board of Selectmen, Tevald
also serves on the town's Board of Health ("BOH").

2. BOH members are responsible for issuing permits and
certificates of compliance for new septic system installations in
Newbury. First, if tests on the property yield acceptable results,
and if the permit application is in order, a BOH member will issue
a permit for the installation of the septic system. Subsequently,
three inspections are conducted while the system is being
installed, If the installation passes these three inspections, and
an as-built plan is submitted to the BOH, a member of the BOH will
issue a certificate of compliance for the septic system.

3. Between March 1996 and August 1998, Tevald handled most of
the septic system installation inspections for the BOH.

4. In or about 1995, Manter Construction Company, Inc., whose
president is Warren Manter, secured approval to construct
Fatherland Farms, a 120-acre, 42 lot subdivision in Newbury. Manter
Construction began site work in 1995, and began constructing houses
in 1996.

5. Between March 1996 and August 1998, Tevald approved no
fewer than 27 septic system permit applications and 21 certificates
of compliance for Manter Construction in the Fatherland Farms
development. He also conducted the vast majority of the inspections
performed in connection with those permit applications and
certificates of compliance.

6. In or about March of 1996 Tevald learned that he was going
to lose his Newbury home to foreclosure, and that he would need to
secure new housing.

7. Shortly thereafter, in or about April of 1996, Tevald and
Manter discussed the possibility that Tevald would purchase a home
in Fatherland Farms. Because of his then current financial
situation, Tevald was not in a position to secure bank financing
for a purchase, and Manter agreed to rent him a home for a defined
period, after which Tevald would have the option to purchase the
home from Manter.

8. In or about July 1996, Tevald and Manter entered into a
two-year lease/purchase agreement for a home in Fatherland Farms.
The lease obligated Tevald to pay Manter $2,050 per month in rent,
and provided an option for Tevald to purchase the property at the
end of the lease term for $250,000. (The rental payments and the
purchase price appear to have been at fair market value.)

9. Most of Tevald's rent payments to Manter were significantly
late: seven were more than 90 days late, four were between 60 and
90 days late, and another three were between five and 60 days late.
Only the first three payments were made on time.

10. Manter never charged Tevald any interest on late payments,
and never made any effort to evict Tevald for late payment. During
this period of time Tevald was making improvements to the property
which Manter would otherwise have been required to make.

11. According to Manter and Tevald, they orally agreed that
Tevald could forgo making the final seven rental payments, totaling
$14,350, altogether, to offset the value of Tevald's improvements
to the property.

12. Forgoing this $14,350 in rent payments put Tevald in a
better position to qualify for mortgage financing to purchase the
home.

13. In August 1998, Tevald purchased the home in Fatherland
Farms from Manter. The closing documents do not mention the
agreement between the parties to offset rent due with a credit for
improvements made to the property.

14. Tevald never made a public, written disclo-

Page 1019

sure of his lease/purchase relationship with Manter. According to
the Board of Selectmen chair, however, both he and the third
selectmen were aware that Tevald was renting from Manter and
still inspecting septic systems in Fatherland Farms.

Conclusions of Law

15. As a selectman and as a BOH member, Tevald is, as he was
during the relevant time period, a municipal employee as that term
is defined in G.L. c. 268A, s.1.

16. Section 23(b)(3) of G.L. c. 268A prohibits a municipal
employee from knowingly, or with reason to know, acting 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, discloses in a manner which
is public in nature, the facts which would otherwise lead to such
a conclusion.

17. By issuing 27 permits to install septic Systems to Manter
Construction while he was Manter's tenant, by conducting the vast
majority of the inspections of those systems, and by issuing 21
compliance certificates to Manter Construction during the period
that Tevald was either (1) in discussions with Manter about moving
in to a home in Fatherland Farms or (ii) Manter's tenant and the
likely purchaser of the home, Tevald knowingly or with reason to
know, acted in a manner which would cause a reasonable person,
having knowledge of all the relevant circumstances, to conclude
that Manter and/or Manter Construction could unduly enjoy Tevald's
favor in the performance of his official duties.[1] Tevald did not
file any written disclosure regarding these circumstances.
Therefore, in so acting, Tevald violated G.L. c. 268A, s.23(b)(3).

18. The appearance of a conflict of interest created by
Tevald's actions was exacerbated by the fact that, as a BOH
inspector, he was in a position to expedite or delay the processing
of Manter Construction's permit applications, the performance of
inspections, and the issuance of certificates of compliance. The
failure to conduct inspections and issue permits and certificates
in a timely manner can be frustrating and costly to a party seeking
to install a septic system. In this case there was no evidence of
such improper behavior.

19. The appearance of a conflict of interest created by
Tevald's actions was further exacerbated by the following: (i)
while Manter's tenant, Tevald consistently paid his rent late with
no penalty or sanction from Manter, (ii) Manter and Tevald did not
document the offsets that entitled Tevald to forgo paying $14,350
in rent, and (iii) Manter's willingness to forgo the $14,350 in
rent in exchange for Tevald's completion of the construction was
instrumental in enabling Tevald to qualify for a mortgage.

Resolution

In view of the foregoing violations of GL. c. 268A by Tevald,
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 Tevald:

(1) that Tevald pay to the Commission the sum of $1,500.00 as
a civil penalty for violating G.L. c. 268A, s.23(b)(3); and

(2) that Tevald 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.



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[1] Tevald recused himself from any involvement with the
permits, certificates of compliance, or inspections on the lot he
intended to purchase.