May 10, 2011

Decision and Order

This matter was commenced on September 8, 2010, with the issuance of an Order to Show Cause ("OTSC") alleging that Respondent Joseph Turner violated G. L. c. 268A, §§ 19, [1] 23(b)(2) and 23(b)(3) [2] in 2008 by, while serving as a Town of Billerica ("Town" or "Billerica") Department of Public Works ("DPW") Cemetery, Parks and Trees Division ("Division") Foreman, using his Division position to sell four cemetery plots to his parents before they had a need for the plots and prior to an increase in the price of cemetery plots. Turner answered the OTSC on September 27, 2010, denying most of the allegations. Turner's subsequent Motion for Summary Decision was denied and an adjudicatory hearing was held on December 14, 2010, at which the parties put into evidence exhibits and testimony. The parties made their closing arguments at the December 14 th hearing before Commissioner Veator and thereafter submitted final briefs.

In rendering this Decision and Order, each undersigned member of the Commission has considered only the testimony, the evidence in the public record, including the hearing transcript, and the arguments of the parties.

The OTSC alleges that Turner violated G. L. c. 268A, §§ 19, 23(b)(2) and (3), in May 2008, when, acting in his capacity as Division Foreman, he sold four cemetery plots to his parents for $1,560, and directed the Division Clerk to complete the deed paperwork for the plots, before his parents needed the plots and shortly before prices for the plots were increased, saving his parents $440 on their purchase. According to the OTSC, Turner thus participated as a municipal employee in a particular matter in which he knew his parents had a financial interest in violation of § 19, and knowingly or with reason to know, used his official position to obtain for them privileges of substantial value in violation of § 23(b)(2) and acted in a manner which would cause a reasonable person to conclude that his parents could improperly influence or unduly enjoy his favor in the performance of his official duties in violation of § 23(b)(3).

In his Answer, Turner denies all of the allegations of the OTSC except for the Commission's jurisdiction, his municipal employment, that his parents are members of his immediate family and three statements of law. In his affirmative defenses, Turner denies, inter alia, that he sold the cemetery plots or that his parents gained financially, and asserts that his superiors were fully aware of and permitted the transaction.

1. Turner has been employed by the Town for thirty-eight years and was, at all relevant times, the senior working foreman in the Division. As such, Turner reports to the Cemetery Superintendent, who in turn reports to the DPW Director. Turner's appointing official is the Town Manager.

2. During the relevant period, Turner's duties as Division Foreman in practice included selling or assisting in the sale of cemetery plots. [3] Turner's duties also included being the person in charge of the Division when the Cemetery Superintendent was on vacation.

3. At all relevant times, Town policy restricted the purchase of Town cemetery plots to Town residents. In addition, there was a Town policy or practice that generally restricted the purchase of cemetery plots to situations where the plot was immediately needed for a burial. Generally, plots were not sold "pre-need." During the relevant period, this no "pre-need" sales policy or practice was stated in the Town's Annual Reports and on the DPW and Division websites, but was not stated on the Town Cemetery Commission's website.

4. The Town's no "pre-need" sale of cemetery plots policy or practice was subject to two exceptions at the discretion of the Cemetery Superintendent. Thus, where a plot or plots had been previously purchased by a family for a burial and the family had not at that time purchased the maximum number of plots allowable, the family could subsequently purchase additional plots up to the allowable maximum even if there had not been an additional death requiring a burial. In addition, in some cases plots had been committed to buyers, but not actually sold, where a death was imminent, but had not yet occurred.

5. The Town's Cemetery Commission establishes rules and regulations regarding the Town's cemeteries and sets the fees charged for cemetery plots. The Cemetery Commission Rules and Regulations set forth the terms and conditions under which plot owners may use and care for burial plots and transfer "rights of burial" in cemetery plots, but do not regulate or restrict the original purchase of such plots. In early 2008, the Cemetery Commission at its regular meetings discussed in open public session increasing the fees for cemetery plots and, by May 2008, decided to do so effective July 1, 2008. Due to an error in the posting of the notice of the fee increase, however, it did not take effect until mid-August 2008.

6. By May 2008, at least some Division staff members had become aware of the impending fee increase, including Cemetery Superintendent Neville Rivet, who attended Cemetery Commission meetings, and Division Clerk Fiona McKenna, who testified that she learned in March or April 2008 that the Cemetery Commissioners were considering an increase.

7. In May 2008, Turner's parents, residents of Billerica, were elderly and his father was in ill health. Neither of Turner's parents was, however, at the time, facing imminent death; and both were still living as of the date of the adjudicatory hearing in December 2010.

8. In May 2008, Turner was aware of the Town practice or policy of not selling cemetery plots "pre-need." Given Rivet's and McKenna's knowledge of the pending increase of cemetery plot fees, that Turner talked to McKenna regularly to get his work assignments (which Rivet communicated to Turner through McKenna) and that Turner's duties involved selling plots, it is more likely than not that by May 2008, Turner was also aware that the fees for cemetery plots were soon to increase. In any case, Turner had reason to know of the price increase at that time.

9. On or about May 22, 2008, Turner accepted from his parents his father's personal check for $1,560, dated May 22, 2008, for the purchase of four cemetery plots. [4] Turner decided to arrange the sale of the plots to his parents on May 22, 2008, although he knew that his parents were not then in need of a cemetery plot for a burial. In addition, despite knowing that, under Division practice and policy, "pre-need" sales were only made at the discretion of the Cemetery Superintendent, Turner chose not to wait to discuss the sale with Superintendent Rivet, who was then on vacation. To effect the sale, Turner wrote the identifying numbers and letters of four plots, which he obtained from the cemetery plan, on his father's check, gave the check to Division Clerk McKenna, and directed her to process the paperwork for the sale of the plots.

10. Turner's father's name was clearly and prominently printed on the $1,560 check, which was dated May 22, 2008. McKenna, who was aware that the check was from Turner's father, deposited the check with the Town Treasurer in the normal course and prepared a "deed" for the sale of the plots to Turner's father for signature by then Superintendent Rivet. [5] McKenna was aware of the Town policy or practice of not selling plots "pre-need." McKenna did as Turner directed because, as the senior Division foreman, he was in charge in Superintendent Rivet's absence.

11. Superintendent Rivet's signature on the plot deed was the final step required to complete the sale of cemetery plots. Turner's father's name was clearly hand-printed on the top of the deed. Either shortly before or shortly after he signed the deed on or about June 5, 2008, but in any case before the deed was mailed to Turner's parents, McKenna and Rivet discussed the fact that the deed was for plots being sold to Turner's parents. Superintendent Rivet was aware of the policy or practice on not selling plots "pre-need." Rivet did not take any action to stop or rescind the sale of the plots to Turner's parents. In addition, although he testified that he believed and thought that he reported the transaction to his superior, DPW Director Abdul Alkhatib, Rivet's uncertainty on the point makes it more likely than not that he did not do so.

12. Turner did not have approval in advance of Superintendent Rivet or of his predecessor Superintendent Charles Faria, for his parents to purchase and for him to sell to them cemetery plots "pre-need."

13. Turner did not seek or obtain a written determination from his appointing official, the Town Manager, under §19(b)(1) permitting him to participate in the sale of the cemetery plots to his parents, nor did he make a disclosure to the Town Manager as provided in §23(b)(3).

14. Turner's parents had a monument placed on one of the purchased plots in October 2008. No action was taken by the Cemetery Superintendent, the Division, the DPW, the Cemetery Commission or the Town to prevent the placement of the Turners' monument or to have it removed.

15. In June 2009, DPW Director Alkhatib received a telephone call reporting Turner's parents' "pre-need" purchase of cemetery plots from an unidentified telephone caller. In August 2009, the DPW Director appointed a Division employee junior to Turner as Acting Superintendent to replace Rivet, who retired that month. Turner contested the appointment before the Civil Service Commission due to an alleged procedural irregularity. The Civil Service Commission proceedings were dismissed on agreed terms in March 2010. The Division employee junior to Turner was subsequently appointed as Cemetery Superintendent. During this same period, the Town, through its Police Chief, conducted an investigation of Turner's sale of the cemetery plots to his parents.

16. Turner's first ethics training was in March 2010.

Petitioner must prove its case and each element of the alleged violations by a preponderance of the evidence. 930 CMR 1.01(10)(o). The burden of proving compliance with an exemption to a prohibition under G. L. c. 268A is on the public employee claiming the exemption. In re Pathiakis, 2004 SEC 1167, 1172; In re Celluci, 1988 SEC 346, 349. The weight to be attached to any evidence in the record, including evidence concerning the credibility of witnesses, rests within the sound discretion of the Commission. 930 CMR 1.01(10)(n).

As to all alleged violations, there is no dispute that Turner was, at all relevant times, a Billerica municipal employee and that his parents are his immediate family members within the meaning of G. L .c. 268A. The parties have so stipulated.

Section 19

In order to establish a §19 violation by Turner, Petitioner was required to prove that Turner participated as a municipal employee in a particular matter in which his immediate family member(s) had, to his knowledge, a financial interest. Petitioner has established that Turner violated §19 by participating as Division Foreman in the 2008 sale of cemetery plots to his parents, as follows:

First, as noted above, there is no dispute that Turner, as a Division foreman, was a municipal employee of the Town at all times here relevant and that Turner's parents are members of his immediate family.

Second, given that for conflict of interest law purposes, a "particular matter" is, inter alia, any "contract…decision, [or] determination," [6] the sale of the cemetery plots to Turner's parents was clearly a particular matter, as the evidence shows it to have been a contract and to have involved decisions and determinations, including that Turner's parents were eligible to purchase the plots and that the plots should be sold to them.

Third, the evidence shows that Turner's parents had a substantial and obvious financial interest in the decision to sell and the sale to them of the cemetery plots. In short, if the sale occurred, his father's check would be cashed and his parents would receive four cemetery plots in exchange for their $1,560. While financial interest is not defined in the statute, Turner's parents' interest as purchasers of the cemetery plots was well within the Commission's established interpretation of the phrase to include a financial interest of any size, either positive or negative, as long as it is direct and reasonably foreseeable. Turner's parents' financial interest in the decision to sell them the plots for $1,560 was not remote, speculative or not sufficiently identifiable. Given that the evidence shows that he personally presented his father's check for the purchase of the plots to the Division Clerk, Turner unavoidably knew of his parents' financial interest in the sale of the cemetery plots to them.

Fourth, the evidence shows that Turner participated "personally and substantially" as a municipal employee in the particular matter of the sale of the cemetery plots to his parents. [7] Thus, the evidence shows that Turner, as Division Foreman and as part of his duties in that position, personally made at least the initial decision to sell the plots to his parents "pre-need," selected the plots, wrote the plot numbers on his father's check and directed Division Clerk McKenna to do the necessary paperwork to complete the sale. Turner's official participation was substantial in that, without it, his parents would not have been able to purchase the plots when they did and for the amount they paid.

In taking these actions, Turner did not simply act on behalf of his parents in their purchase of the plots. Instead, he took actions which he could only take as Division Foreman, including deciding to follow the process for routine plot purchases and not do what he testified he did with other "pre-need" purchases, i.e., refer the matter to the Superintendent to decide in his discretion. In short, Turner, as Division Foreman, made the decision to sell and sold the four cemetery plots to his parents. The fact that the sale required the Superintendent's signature on the deed for completion and could have been halted by the Superintendent, does not alter the fact that Turner personally and substantially participated in the sale. One does not have to be the final decision-maker in order to participate in a matter for §19 purposes.

Accordingly, Petitioner has proved by a preponderance of the evidence that on or about May 22, 2008, Turner personally and substantially participated as Division Foreman and a municipal employee in the particular matter of the decision to sell and sale of the cemetery plots to his parents in which he knew his parents, his immediate family members, had a financial interest. In so doing, Turner violated §19.

Finally regarding the alleged §19 violation, at no time did Turner, pursuant to §19(b)(1), make a written disclosure to his appointing official, the Town Manager, and receive a written determination from that official allowing his participation in the decision to sell and the sale of the plots to his parents notwithstanding their financial interest in that decision and sale. The burden of proving facts establishing a §19(b)(1) disclosure and determination was on Turner. Turner did not meet that burden. [8]

Section 23(b)(2)

To establish that Turner violated § 23(b)(2), Petitioner was required to prove that Turner, knowingly or with reason to know, used or attempted 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. Petitioner has established that Turner violated § 23(b)(2) by using his position as Division Foreman to secure cemetery plots for his parents "pre-need," in violation of established Town policy, and just before a substantial price increase.

First, the preponderance of the evidence shows that Turner's parent's "pre-need" purchase of the cemetery plots was an unwarranted privilege which was not properly available to them or to similarly situated individuals, as follows:

Although Turner argues that there was no policy prohibiting "pre-need" sales of plots, the evidence in the record of the existence of that policy is overwhelming. In addition to the testimony of Petitioner's witnesses DPW Director Alkhatib, Cemetery Commissioner Busalacchi, former Cemetery Superintendent Rivet and Cemetery Division Clerk McKenna, the excerpts from the Town of Billerica Annual Reports and the DPW website page (Exhibits 9 and 15) explicitly support the existence of the policy. Indeed, even Turner at the adjudicatory hearing supported the existence of at least an unwritten policy when he testified, "I had never seen anything in writing. There was talk. No, there weren't to be pre-need sales but I never saw anything in writing." That same testimony supports the conclusion that Turner was aware of the no "pre-need" sales policy at all relevant times.

While the evidence indicates that there were exceptions to the policy and that the Cemetery Superintendent had some discretion in enforcing the policy, the preponderance of the evidence is that Turner's parents' situation was not within either of the established exceptions to the policy that would justify a sale at the Superintendent's discretion. The evidence shows that, as exceptions to the rule against "pre-need" sales, plots were sold pre-need in two types of situations. [9] The first situation was one of imminent death, where plots were "committed" or reserved in cases where a person was believed to be about to die in a matter of hours or days. The second situation involved cases where a family had previously bought a plot or plots (but fewer than the total number allowed to be purchased) upon the death of a family member now buried in the plot and the family later sought to purchase additional adjoining or nearby graves up to the maximum number allowed. There is no evidence that Turner's parents had previously purchased a plot for a burial and were in May 2008 seeking to buy adjoining plots up to the permitted maximum, and the evidence shows that neither of Turner's parents was facing imminent death at that time.

While Turner testified and argues that both the then current and the immediately prior Cemetery Superintendents had exercised their discretion to permit his parents to purchase plots "pre-need," there is, however, no evidence in the record of any actual approval by either Cemetery Superintendent apart from Turner's testimony, which was not credible. Faria did not testify [10] and Rivet denied giving Turner approval. The credibility of Turner's hearing testimony was undermined by his unconvincing attempt to minimize his involvement in the sale of the cemetery plots to his parents when he had unequivocally stated under oath during the preliminary inquiry that he had sold his parents the plots and where the evidence clearly establishes that he effectively did so, and by his inconsistent testimony about when the Cemetery Superintendent's approval was required for the sale of cemetery plots and his own role in those sales. Superintendent Rivet's failure to act to undo the sale or to prevent its completion was not equivalent to his approval of it in the proper exercise of his discretion and did not legitimize the sale or Turner's participation in it.

Second, the evidence shows that the privilege of purchasing the plots "pre-need" in May 2008 was of substantial value [11] to Turner's parents in two ways. First, it was of intangible, that is, non-quantifiable, substantial value in that Turner's parents thus gained the peace of mind of knowing that they would be buried in the Town cemetery. Such peace of mind, although not specifically quantifiable, is in our view plainly worth $50 or more, as it would spare the surviving spouse and others (including, most likely, Turner) the inconvenience and stress of locating a suitable cemetery plot at the time of death. Second, it was of substantial value because it allowed them to avoid a $440 price increase in mid-2008 and any subsequent price increases.

Third, the evidence shows that Turner used his position as Division Foreman to secure for his parents the unwarranted privilege of the opportunity to purchase cemetery plots "pre-need" and pre-price increase. Thus, it was only as Division Foreman that Turner was able to effect the "pre-need" sale of the plots to his parents, contrary to Division policy and practice, and direct the Division Clerk to process the paperwork required to complete the sale.

Fourth, the evidence shows that Turner acted knowingly or with reason to know in his use of his official position to obtain for his parents the unwarranted privilege of purchasing cemetery plots "pre-need" and pre-price increase. Thus, the preponderance of the evidence shows that Turner knew that the sale to his parents was contrary to Division policy and practice and that he probably also knew of the 2008 price increase. [12]

Accordingly, Petitioner has proved by a preponderance of the evidence that on or about May 22, 2008, Turner violated § 23(b)(2) by, knowingly or with reason to know, using his position as Division Foreman to secure for his parents the unwarranted and substantially valuable privilege, not properly available to similarly situated individuals, of purchasing cemetery plots "pre-need," in violation of established Town policy and practice, and just before a substantial price increase.

Section 23(b)(3)

In order to establish that Turner violated § 23(b)(3), Petitioner was required to prove that Turner, knowingly or with reason to know, acted 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. Petitioner has met its burden.

The preponderance of the evidence in the record of Turner's actions in connection with the 2008 sale of cemetery plots to his parents would, in our view, cause a reasonable person, with knowledge of the relevant circumstances, to conclude that Turner's parents could improperly influence him or unduly enjoy his favor in the performance of his official Division Foreman duties or that he was likely to act or fail to act as a result of kinship with or undue influence by his parents. Most importantly, the evidence establishes that Turner did not treat his parent's "pre-need" purchase of plots as he testified he had treated all others, by referring them to the Superintendent. Indeed, contrary to his practice with others making similar "pre-need" purchase requests, Turner on his own decided to and sold his parents four cemetery plots "pre-need."

The evidence further shows that Turner did not at any time here relevant, make a written disclosure to his appointing official, the Town Manager, of the relevant circumstance which would otherwise have caused an appearance of conflict of interest in violation of § 23(b)(3) pursuant to the final sentence of that section, such as to avoid his violation of that section. Proof that no disclosure was made was not an element of Petitioner's proof of a §23(b)(3) violation. The burden of proving that he made a §23(b)(3) disclosure was on Turner. Turner did not meet that burden.

Accordingly, Petitioner has proved by a preponderance of the evidence that on or about May 22, 2008, Turner violated § 23(b)(3) by, knowingly or with reason to know, acting with respect to his parents' "pre-need" purchase of cemetery plots in a manner which would cause a reasonable person, with knowledge of the relevant circumstances, to conclude that Turner's parents could improperly influence him or unduly enjoy his favor in the performance of his official Division Foreman duties or that he was likely to act or fail to act as a result of kinship with or undue influence by his parents.

For the above stated reasons, we conclude that Petitioner has proved by a preponderance of the evidence that Turner violated G. L. c. 268A, §§, 19, 23(b)(2) and 23(b)(3), and we so find.

Although we have found that Turner violated the conflict of interest law, there are factors in this case that make a small civil penalty appropriate. First, Turner's supervisor, despite knowing that Turner had sold his parents cemetery plots "pre-need," failed to take action to avoid or to immediately rescind the transaction by which Turner violated the law, thus missing the opportunity to avoid harm to the Town and block Turner's securing of an unwarranted benefit for his parents. This failure to immediately and decisively act came very close to a de facto after-the-fact approval of the transaction, particularly given the Cemetery Superintendent's discretion concerning the sale of plots. While this post-violation inaction by others does not excuse Turner's violations, it did as a practical matter deprive him of the opportunity to correct his mistake while it was relatively harmless, and it may have misled him into erroneously believing that there was no mistake that needed correction. Instead, as a result of this inaction and the subsequent slowness to take corrective action of the Division and the Town, Turner's violation was allowed to compound with time and his parents' installation of a monument. Second, the unwarranted privilege that Turner secured for his parents was of relatively modest value. Third, while we have found that Turner had reason to know, and most likely actually knew of the impending price increase at the time of the transaction, the evidence on this point made this a very close question. Fourth, the conduct constituting Turner's violation was not of a kind whose illegality would be obvious to a person in his position, particularly where Turner did not receive any ethics training until after the violation in 2010. For all of these reasons, we conclude that a civil penalty of $440, the amount saved by Turner's parents by buying their four cemetery plots before the August 2008 fee increase, is the appropriate sanction for Turner's violations.

Accordingly, having found that Respondent Joseph Turner violated G. L. c. 268A, §§ 19, 23(b)(2) and 23(b)(3), as specified above, the Commission, pursuant to the authority granted it by G. L. c. 268B, § 4(j), hereby ORDERS Turner to pay a total civil penalty of $440 for those violations.

DATE AUTHORIZED: April 15, 2011

DATE ISSUED: May 10, 2011

SIGNED:

___ //signed// ____________________
Charles B. Swartwood, III, Chairman

_ //signed// _ _ ______________
David L. Veator

__ //signed// ____
Paula Finley Mangum

___ //signed//___________________
Martin F. Murphy

NOTICE OF APPEAL

Respondent Joseph Turner is notified of his right to appeal this Ruling and Order pursuant to G.L. c. 268B, § 4(k) by filing a petition in Superior Court within thirty (30) days of the issuance date.

To: James T. Dangora, Jr., Esq. Karen Beth Gray, Esq.
Shea & Dangora Deputy Chief, Enforcement Division
566 Boston Post Road, State Ethics Commission
P.O. Box 599 One Ashburton Place, Room 619
Billerica, MA 01821
BY FAX & FIRST CLASS MAIL BY HAND




[1] Section 19, in relevant part, prohibits a municipal employee from participating as such in a particular matter in which a member of his immediate family has, to the employee's knowledge, a financial interest.

[2] In 2008, § 23(b), in relevant part, prohibited a municipal employee from knowingly or with reason to know (2) 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; and (3) 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 the undue influence of any party or person (provided further that it shall be unreasonable to so conclude if the municipal employee has disclosed in writing to his appointing authority the facts which would otherwise lead to such a conclusion). Section 23(b) was amended in 2009 in respects not relevant to this matter.

[3] What is referred to as "the sale of cemetery plots," is actually the sale of the burial rights to specific plots in Town cemeteries.

[4] This price was $440 less than under the new rates effective August 2008.

[5] What is referred to as a "deed" is in fact a receipt for the "right of internment" in a specific cemetery plot or plots.

[6] G. L. c. 268A, § 1 (k).

[7] "Participate" includes participating in agency action or in a particular matter personally and substantially as a municipal employee through approval, disapproval, recommendation, the rendering of advice, investigation or otherwise. G. L. c. 268A, § 1 (j).

[8] Turner also failed to introduce evidence sufficient to establish that his immediate supervisors, Superintendent Faria and Superintendent Rivet, approved of his participation in the sale of the cemetery plots to his parents. Turner's only evidence was his unconvincing testimony. In any case, because neither superintendent was Turner's appointing official, even had Turner succeeded in proving their approval of his sale of the plots to his parents, that would not have disproved his violation of §19, as a §19(b)(1) determination may only be made by the appointing official, here the Town Manager.

[9] Turner argues that the Town prevented him from gathering evidence of additional "pre-need" sales, but the evidence shows that he in fact made little effort to do so. In any case, Turner introduced no evidence of any other exceptions to the no "pre-need" sales policy.

[10] Billerica Police Chief Daniel Rosa testified to out of court statements by Faria denying that he had authorized the purchase by Turner's parents. While we found Chief Rosa credible in his testimony, we do not rely on these statements in reaching our conclusion.

[11] Anything worth $50 or more is of "substantial value" for G. L. c. 268A purposes. 930 CMR 5.05.

[12] Given Turner's clearly established knowledge of the no "pre-need" sales policy, it is not necessary for us to further find that he also in fact knew of the impending price increase, as his "pre-need" sale of the plots to his parents, with knowledge of that policy, establishes his violation of § 23(b)(2) regardless of whether he also knew or had reason to know of the price increase. The preponderance of the evidence does, however, establish that Turner had at least reason to know of the price increase.