August 8, 2009

Disposition Agreement

The State Ethics Commission and Richard Wheeler ("Wheeler") 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 August 1, 2008, the Commission initiated, pursuant to G.L. c. 268B, Section 4(a), a preliminary inquiry into alleged violations by Wheeler of G.L.c. 268A, Sections 19 and 23(b)(2), the conflict of interest law. The Commission has concluded its inquiry and, on March 20, 2009, found reasonable cause to believe that Wheeler violated G.L. c. 268A, Sections 19 and 23(b)(2).

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

Findings of Fact

Municipal Employment

1. Wheeler was appointed as Barre ("the Town") Department of Public Works ("DPW") Superintendent in April 2004, and is still employed in that capacity.

2. As DPW Superintendent, Wheeler's duties include supervising the DPW's multiple departments, including the Water Department and the Sewer Department. Wheeler's duties also include the inspection and approval of residential and commercial water and sewer lines, including their connections to the Town's water and sewer systems.

3. Glen Alt ("Alt") has been the appointed Chief Water Operator of the Barre Water Department since 2004. Alt is a subordinate of Wheeler. Alt's duties include the inspection and approval of residential and commercial water connections to the Town's water system.

Fruitland Road

4. In 2005, Wheeler purchased property located at 75 Fruitland Road in the Town.

5. In approximately August 2005, Wheeler began constructing a new house at 75 Fruitland Road. Wheeler was required to connect the house to the Town's water and sewer systems.

Wheeler's Water Connection

6. In 2006, Wheeler completed a Water Service Connection Application ("Water Application") for 75 Fruitland Road. Wheeler paid the $2,000 application fee in March 2007. [1]

7. In November 2006, Wheeler and his contractor were prepared to connect the house's water line to the Town's water system, and Wheeler requested Alt come to 75 Fruitland Road to supervise and inspect the "tie in." [2]

8. An authorized Water Department employee (such as Alt) is required to be present to supervise and inspect the "tie in" to ensure proper materials and procedures are used. The inspector is then required to sign the Water Application confirming the inspection was performed and the water line was correctly constructed and "tied in."

9. Alt arrived at 75 Fruitland Road, supervised the "tie in," and observed no problems. Alt did not sign off on the Water Application, as none of the water line running from the street curb to the house had been laid and, therefore, was not ready for inspection.

10. Within days, Alt responded a second time to 75 Fruitland Road in order to inspect the water line running from the street curb to the house.

11. Approximately one-third to one-half of the piping to be inspected had been covered (i.e. backfilled) prior to Alt's arrival. As a result of the backfill, Alt was unable to inspect all the piping.

12. Alt inquired of Wheeler as to how he was supposed to inspect the back-filled portion of the line to which Wheeler responded, "I inspect these too. I know how to do them." Wheeler did not uncover the backfilled portion of the line and it was not inspected.

13. As a result of not being able to inspect all of the line, Alt did not sign off on the Water Application for 75 Fruitland Road. The Water Application has never been signed by an inspector.

14. Despite the lack of a complete inspection of the water line and the absence of a signed Water Application, 75 Fruitland Road was, and currently is, connected to, and receiving water from, the Town water system.

Wheeler's Sewer Connection

15. On January 17, 2007, Wheeler completed an application for a Sewer Connection Permit ("Sewer Permit") for 75 Fruitland Road. Wheeler paid $3,120 toward the sewer application fee. [3]

16. As DPW Superintendent, Wheeler signed the Sewer Permit acknowledging the Town's receipt of his own application fee.

17. Wheeler and his contractor constructed 75 Fruitland Road's sewer line pursuant to this permit.

18. Wheeler and his contractor connected 75 Fruitland Road's sewer line to the Town's sewer system, and backfilled it without having the required Sewer Department inspection performed.

19. An authorized Sewer Department employee is required to inspect the line and the connection to ensure proper materials and procedures are used (e.g. proper trench depth, proper quantity of stone base under the piping). The inspector is then required to sign the Sewer Permit confirming the inspection was performed and the sewer line was correctly constructed and connected.

20. As DPW Superintendent, Wheeler signed the Sewer Permit confirming that 75 Fruitland Road's sewer line and its connection to the Town's sewer system had been inspected when, in fact, no such inspection was ever performed.

Conclusions of Law

21. As Barre DPW Superintendent, Wheeler was at all times relevant to this matter a municipal employee as defined in c. 268A, Section 1(g).

Water Connection - 23(b)(2) Violation

22. Section 23(b)(2) prohibits a public 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.

23. Wheeler's connection of 75 Fruitland Road's water line to the Town's water system without the complete required Town inspection and signed Water Application was a privilege or exemption.

24. The privilege or exemption was unwarranted because the Water Application requires "[i]nspection of all completed work before the trench is backfilled."

25. The unwarranted privilege or exemption was not available to similarly situated property owners.

26. The privilege or exemption was of substantial value as evidenced by Wheeler's application fee of $2,000, and/or the expenses he would incur in uncovering and then re-covering the line to allow for the required inspection, and/or the expenses incurred in building the house (into which he would not be able to move absent an operable water system).

27. Wheeler attempted to use his official position to obtain this unwarranted privilege or exemption by (a) requesting his subordinate Alt conduct the inspection even though a substantial portion of the line had been backfilled, and (b) by commenting to Alt on his (Wheeler's) professional experience and expertise in constructing and inspecting water lines, in order to obtain Alt's sign-off on the Water Application.

28. Therefore, Wheeler violated Section 23(b)(2).

Sewer Connection - 19(a) Violation

29. Section 19(a) prohibits a municipal employee from participating as such in a particular matter in which to his knowledge he, or an immediate family member, has a financial interest.

30. The decision to sign off on the Sewer Permit (indicating that 75 Fruitland Road's sewer line had been constructed correctly and connected to the Town sewer system correctly) was a particular matter.

31. Wheeler participated in this particular matter as DPW Superintendent by signing the Sewer Permit approving the construction and connection of 75 Fruitland Road's sewer line.

32. Wheeler had a reasonably foreseeable financial interest in this particular matter, as evidenced by his $3,120 sewer application fee, and/or the expenses he would incur in uncovering and then recovering the line to allow for the required inspection, and/or the expenses incurred in building the house (into which he would not be able to move absent an operable sewer system).

33. Wheeler was aware of these financial interests when he participated in this particular matter.

34. Therefore, Wheeler violated Section 19(a).

Sewer Connection - 23(b)(2) Violation

35. Wheeler's construction of 75 Fruitland Road's sewer line without the required Town inspection was a privilege or exemption.

36. The privilege or exemption was unwarranted, as the Sewer Permit required Wheeler to "notify the inspector when the building sewer is ready for inspection and connection to the public sewer before any portion of the work is covered" in order for the required inspection to occur.

37. The unwarranted privilege or exemption was not available to similarly situated property owners.

38. The privilege or exemption was of substantial value as evidenced by Wheeler's application fee of $3,120, and/or the expenses he would incur in uncovering and then re-covering the sewer line to allow for the required inspection, and/or the expenses incurred in building the house (into which he would not be able to move absent an operable sewer system).

39. Wheeler used his official position to obtain the unwarranted privilege or exemption by, as DPW Superintendent, signing the Sewer Permit confirming the required Town inspection had been performed when, in fact, it had not been performed.

40. Therefore, Wheeler violated Section(2).

Resolution

In view of the aforementioned violations of G.L. c. 268A by Richard Wheeler, 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 Richard Wheeler:

(1) that Richard Wheeler pay to the Commission the sum of $4,000 as a civil penalty for violating G.L. c. 268A, Sections 19 and 23(b)(2), as noted above; and,

(2) that Richard Wheeler 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 the terms and conditions contained in this Agreement.

STATE ETHICS COMMISSION

//signed// Karen L. Nober Date ________ 7/24/09

Executive Director

//signed//____Richard Wheeler Date ________ 6/12/09_____

I, Richard Wheeler, 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 $4,000 to the State Ethics Commission.

__ //signed//_Richard Wheeler Date 6/12/09


[1] The property owner is not required to pay the application fee at the time of submitting the application to the Town. However, the Water Application advises: "No service connection will be made until the applicant has paid the required connection fee."

[2] Wheeler had laid the portion of the water line that ran from the street curb to the town's water line (located under the public roadway), but had not yet laid the water line that was to run from the street curb to the house (to be located under Wheeler's property).

[3] Wheeler was not required to pay the full fee due to betterment assessments previously paid to the Town by the former property owner.