Docket No. 361

In the Matter of Thomas H. Nolan

June 12, 1989

Ruling on Motin for Summary Decision



Appearing:

Irene Scharf, Esq.
Counsel for the Petitioner

Commissioners:

Diver, Ch., Basile, Epps, Jarvis, Pappalardo

Page 415

On December 30, 1988, the Petitioner filed a Motion for Summary
Decision, pursuant to the Commission's Regulations, 930 CMR 1.01
(6)(f)(2).[1] For the reasons stated below, we grant the
Petitioner's Motion and order the Respondent Thomas Nolan to pay
a civil penalty of two thousand dollars.

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 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, the
Respondent has failed to file an answer to the October 1988 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[2] and has failed to appear at a
hearing to show cause why summary judgment should not be entered
against him.

The order to show cause alleges that the Respondent, a mayor
and municipal employee for the purposes of G.L c. 268A, violated
G.L c. 268A, s.s.2[3] and 3[4] by promising city fire-fighters
that he would not schedule a promotional civil service
examination in November 1987 if the firefighters agreed to him in
his reelection campaign.[5] The Respondent's failure to defend or
otherwise respond to the allegations constrains us to conclude
that the Respondent has violated G.L. c. 268A, s.2 and 3.

In light of the seriousness with which we view these violations,
we conclude that a maximum statutory fine of two thousand dollars
($2,000.00) is appropriate. Accordingiy, pursuant to G.L. c. 268B,
s.4(j)(3), we hereby order the Respondent, Thomas Nolan, to pay to
the Commission a civil penalty of two thousand dollars ($2,000.00)
within thirty days of receipt of this ruling.

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[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 a Final Decision,
and shall be made in writing as provided in s.9(m) of these Rules.

[2] See, e.g., January 20, 1989 letter from Presiding Officer to
Respondent; March 20, 1989 Order issued by Presiding Officer to
Respondent.

[3] G.L.c. 268A, s.2(b) prohibits a municipal employee from
directly or indirectly corruptly soliciting anything of value for
himself or for any other person in return for being influenced in
his performance of any official act or act within his official
responsibility.

[4] G.L. c. 268A, s.3(b) prohibits a municipal employee from
directly or indirectly soliciting for himself anything of
substantial value, otherwise as provided by law for the proper
discharge of official duties, for or because of any official act
performed or to be performed by him.

[5] In particular, 13 of the Order to Show Cause


Page 416

asserts:

On July 14, 1987, ten of the foregoing eleven lieutenants and
Mayor Nolan met. The lieutenants raised their fairness concern
about a November exam. During this meeting Mayor Nolan promised
the lieutenants that there would be no November exam if the
lieutenants would support him in the upcoming election. One of the
lieutenants then accused Mayor Nolan of political blackmail, and
Mayor Nolan asked the following question: if he could give
lieutenants what they wanted, why could they not give him what he
wanted? The meeting concluded with no agreement as to whether a
captains' exam would be conducted in November, 1987.