Public Enforcement Letter 96-1

Vincent D. Barletta, President
Douglas Environmental Associates, Inc.
c/o David E. Lurie, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
One Financial Center
Boston, MA 02111

August 3, 1995

Dear Mr. Barletta:

As you know, the State Ethics Commission ("Commission") has
conducted a preliminary inquiry concerning whether you violated
the state conflict of interest law, G.L. c. 268A, by providing
compensation to Douglas Zoning Board of Appeals ("ZBA") member
John Beukema ("Beukema") in relation to a particular matter in
which the Town of Douglas was a party or had a direct and
substantial interest, and which was a subject of Beukema's
official responsibility as a ZBA member. Based upon the
preliminary inquiry, the Commission voted on May 9, 1995 that
there is reasonable cause to believe that you violated s.17(b) of
G.L. c. 268A. The Commission, however, does not believe that
further proceedings are warranted. Instead, the Commission has
determined that the public interest would be better served by
bringing to your attention, and to the attention of the general
public, the facts revealed by the preliminary inquiry and by
explaining the application of the law to such facts, with the
expectation that this advice will ensure your understanding of
and future compliance with the conflict of interest law. By
agreeing to this public letter as a final resolution of this
matter, you do not admit to the facts and law discussed below.
The Commission and you have agreed that there will be no formal
action against you in this matter and that you have chosen not to
exercise your right to a hearing before the Commission.

I. Facts

1. You are the president of Douglas Environmental
Associates, Inc. ("DEA"). At the time here relevant, DEA was
developing a proposed landfill and recycling facility to be
located on nearly 290 acres on the north side of Route 16 in
Douglas. Browning-Ferris Industries, Inc. ("BFI") was the
proposed operator of the landfill and recycling facility.

2. John Beukema ("Beukema") was, during the time here
relevant, a member of the Douglas Zoning Board of Appeals
("ZBA").[1] At the time here relevant, ZBA members were
designated special municipal employees as defined in G.L. c.
268A, s.1(n).[2] Beukema was also self-employed as an architect,
with an office in Douglas, and did business as JN Albert
Associates.

3. At the time here relevant, Mark Conley ("Conley") was a
BFI employee who managed BFI's involvement in the Douglas
project. Conley was primarily responsible for the development of
the recycling portion of the Douglas project.

4. Sometime in mid-1991, Conley recommended to you that
Beukema be hired to design the recycling buildings, in part
because Beukema was a Douglas resident and it would be good
public relations to utilize "local talent."[3] You approved
Conley's recommendation.[4]

5. In September 1991, Beukema, d/b/a JN Albert Associates,
entered into an Architectural Service Agreement ("Service
Agreement") with BFI to design the buildings for the recycling
facility. Pursuant to the Service Agreement, Beukema was to be
paid a fee of $2,920 for the design of the recycling
buildings.[5] The Service Agreement further provided, "When
requested, the architect shall assist the owner in acquiring
necessary permits."[6]

6. After entering into the Service Agreement, Beukema
proceeded to draw up plans for the recycling buildings and site
layout.[7]

7. Pursuant to the Service Agreement, in 1992, Beukema
prepared an application to the ZBA for a special permit (Site
Plan Review) for the proposed recycling center under Section VI
6:02 of the Douglas Zoning Bylaw.[8] The special permit
application named you as the applicant. Beukema signed the
application on your behalf on July 13, 1992, and filed it with
the ZBA. The application was received by the ZBA on July 16,
1992. The ZBA then scheduled a public hearing on the matter for
August 12, 1992, and gave public notice of the meeting by posting
and newspaper advertisement between July 22, 1992, and August 5,
1992.

8. On August 12, 1992, you, Beukema, Conley and DEA
Project Manager Sean O'Hearn ("O'Hearn") attended the ZBA public
hearing relating to the recycling center.[9] Beukema, as your
architect, made a presentation to the ZBA describing the
recycling center and responded to questions from the ZBA and
members of the public.

9. Near the end of the August 12, 1992 ZBA public hearing,
a member of the public questioned


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whether Beukema was "going to sit" as a ZBA member on the special
permit application matter and whether that would be a conflict of
interest. In a response, ZBA Chairman Bacon stated that Beukema
would not vote on the matter and that, because ZBA members had
been designated as special municipal employees, Beukema's being
the special permit applicant's architect did not create a
conflict of interest. Bacon was then asked if the ZBA had
consulted the Commission on the issue and Bacon responded
"no".[10]

10. Beukema abstained from any participation in the
recycling center matter as a ZBA member. On September 22, 1992,
the ZBA, without Beukema participating, unanimously approved the
special permit subject to several conditions.

11. Although the Service Agreement was between Beukema,
d/b/a JN Albert Associates, and BFI (rather than you or DEA),
you, in your capacity as DEA's president, caused DEA to make at
least two payments to Beukema pursuant to the Service Agreement.
In October 1991, you signed a DEA check paying JN Albert
Associates $1,000. In November 1992, you signed a DEA check
paying JN Albert Associates $1,280. Both payments by DEA were
made in response to JN Albert Associates' invoices to BFI, which
were forwarded to DEA.

12. You cooperated fully with the Commission's
investigation of this matter.

II. Discussion

As a ZBA member, Beukema was a special municipal employee.
As such, Beukema and, under some circumstances, private parties
doing business with him (such as yourself), were and are subject
to the conflict of interest law, G.L. c. 268A.

Section 17(a) of G.L. c. 268A prohibits a municipal employee
from, otherwise than as provided by law for the proper discharge
of official duties, directly or indirectly receiving or
requesting compensation[11] from anyone other than the
municipality or a municipal agency in relation to any particular
matter[12] in which the municipality is a party or has a direct
and substantial interest. Section 17(b) of G.L. c. 268A
prohibits anyone from knowingly giving, offering or promising
compensation to a municipal employee which the employee is
prohibited from receiving under s.17(a).[13] Section 17 further
provides that a "special municipal employee", such as Beukema, is
only subject to s.17(a) in relation to a particular matter (a) in
which he has participated as a municipal employee, or (b) which
is or within one year has been a subject of his official
responsibility, or (c) which is pending in the municipal agency
in which he is serving (provided he has served more than 60 days
during any 365 consecutive day period).[14]

The special permit site plan review for the landfill
recycling facility, for which Beukema applied on your behalf with
the ZBA in July 1992, was a particular matter in which the Town
of Douglas was a party and had a direct and substantial interest.
That particular matter, at the time Beukema represented you
before the ZBA (on August 12, 1992) and at the time he received
compensation from DEA (in November 1992), was (or within one year
had been) a subject of Beukema's official responsibility as a ZBA
member.[15] This was the case even though Beukema abstained from
participating in the particular matter as a ZBA member.
Therefore, condition (b) of the special municipal employee
provisions in s.17 was satisfied and s.17(b) prohibited you from
knowingly,[17] directly or indirectly, providing compensation to
Beukema in relation to the special permit site plan review
application. Accordingly, there is reasonable cause to believe
you violated G.L. c. 268A, s.17(b) by, as DEA's president,
causing DEA to compensate Beukema.[18]

III. Disposition

Based upon its review of this matter, the Commission has
determined that this public letter should be sufficient to ensure
your understanding of and future compliance with the conflict of
interest law.[19]

This matter is now closed.


-------------------------
[1] Beukema served as an associate member of the ZBA until
October 1989, when he became a full member. Beukema no longer
serves on the ZBA.

[2] The Douglas selectmen designated ZBA members as special
municipal employees in February 1990 in response to a request
that month for such designation from ZBA Chairman Lawrence Bacon
("Bacon"), which followed Beukema's individual request for
special municipal employee status. According to Beukema, he
decided to make this request after attending a Commission seminar
given to Town of Douglas officials and employees (including ZBA
members) in December 1989, at which, among other topics, special
municipal employees status was generally discussed; in
particular, Beukema sought special municipal employee status in
order to be able to seek the

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contract for the design of the new town police station which was
advertised for bid in late 1989. According to Beukema, it was
his understanding from the seminar that if he had special
municipal employee status he would be able, as an architect, to
enter into contracts with the town and appear as an architect
before town boards, including the ZBA. Thus, Beukema apparently
misunderstood what was said at the seminar concerning the effect
of special municipal employee status. To the degree that Beukema
believed that special municipal employee status would permit him
to appear before his own board, the ZBA, and to receive
compensation for work subject to review by that board, Beukema
was mistaken.

[3] According to Beukema and Conley, the two had first met
in 1990 when Beukema submitted a bid for the design of a home
Conley was having built. Conley was favorably impressed by
Beukema's work, although he selected another architect. Thus, in
1991, when Conley solicited bids from architects for the design
of the recycling buildings, he asked Beukema to submit a bid.
According to Conley, Beukema submitted the lowest bid.

[4] According to Beukema and Conley, prior to Beukema's
hiring they discussed whether there would be any problem with
Beukema designing the recycling buildings and being a ZBA member.
Beukema told Conley that there would be no ethical problem
because he was a special municipal employee. In addition,
Beukema told Conley that he thought that the recycling buildings'
design plans would require only approval by the town building
inspector, and not the ZBA. This discussion between Conley and
Beukema was not, however, related to you at the time of Beukema's
hiring. According to you, at the time you approved Beukema's
hiring, you did not know that he was a ZBA member or that the
recycling buildings' plans would require ZBA approval.

[5] The Service Agreement also provided that Beukema was to
be paid by the hour for additional work.

[6] This was apparently standard language in the contract
form used by Beukema for the Service Agreement.

[7] According to Beukema, it was at this time that he first
learned that the proposed recycling buildings would require a
special permit site plan review by the ZBA. According to Beukema
and Conley, when Beukema learned that special permit site plan
review by the ZBA would be required in order to obtain a building
permit for the recycling buildings, Beukema discussed with Conley
whether or not there would be an ethical problem if Beukema
presented the special permit site plan review application to the
ZBA. Beukema told Conley that there would not be an ethical
problem because Beukema was a special municipal employee and
would abstain from participating as a ZBA member in the ZBA's
review of the application.

[8] By this time, you were aware that Beukema was a ZBA
member and that a special permit from the ZBA was required.
According to you and Conley, however, Conley advised you, in turn
based upon what he had been told by Beukema, that there was no
ethical problem in Beukema applying for the special permit and
appearing before the ZBA because Beukema was a special municipal
employee and would not participate in the special permit matter
as a ZBA member.

[9] According to you, at a meeting on the morning of August
12, 1992, in preparation for the ZBA meeting, Beukema personally
told you and O'Hearn that his appearing on your behalf before the
ZBA would not create an ethical problem because he was a special
municipal employee and he would not participate in the special
permit matter as a ZBA member.

[10] Neither Bacon (who had also attended the December 1989
Commission seminar) nor Beukema had sought or received advice
from the Commission or Douglas' town counsel regarding whether
Beukema, as a ZBA member and special municipal employee, could be
the architect for a private client on a project requiring a
permit from the ZBA or could appear for a client before the ZBA.
Instead, both Beukema and Bacon apparently relied on their shared
understanding of the general discussion of "special municipal
employee" status at the December 1989 Commission seminar in
concluding that Beukema could act as Barletta's architect on the
special permit application. You, in turn, relied on what was
said by Beukema, Bacon and Conley concerning the conflict of
interest issue and did not seek further advice on the issue.

[11] "Compensation" means any money, thing of value or
economic benefit conferred on or received by any person in return
for services rendered or to be rendered by himself or another.
G.L. c. 268A, s.1(a).

[12] "Particular matter" means any judicial or other
proceeding, application, submission, request for a ruling or
other determination, contract, claim, controversy, charge,
accusation, arrest, decision, determination, finding, but
excluding enactment of general legislation by the general court
and petitions of cities, towns, counties and districts for
special laws related to their governmental organizations, powers,
duties, finances and property. G.L. c. 268A, s.1(k).

[13] Section 17(b) states "No person shall knowingly,
otherwise than as provided for the proper discharge of official
duties, directly or indirectly give, promise or offer such
compensation."

[14] The 60-day requirement applies only to condition (c)
and is not here relevant. Condition (b) of the special municipal
employee provisions in s.17 was met as described infra.

[15] "Official responsibility" means direct administrative
or operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action. G.L. c. 268A, s.1(j).

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[16] The Commission has held that "the keynote of official
responsibility is the 'potentiality' of directing agency action
and not the actual exercise of power," EC-COI-87-17; i.e, that
"official responsibility" turns on the authority to act, not on
whether that authority is, in fact, exercised. EC-COI-92-36.
Thus, the test to determine whether an employee has "official
responsibility" for a matter is whether the particular matter
falls within the public employee's authority, regardless of
whether that authority is exercised. Id. Accordingly, regular
members of a municipal board, such as Beukema, retain "official
responsibility" for matters which are pending before the board,
whether or not they have actually worked on the matter as a board
member and whether or not they actually sat on the board on a
given day. Id.; see, e.g., EC-COI-89-7; 84-48. Thus, such a
regular municipal board member may not avoid "official
responsibility" for a matter by abstaining from participation
in the matter as a board member. Id.

[17] The Commission has not previously decided the question
of what "knowingly" means in s.17(b). (It should be noted that
the word "knowingly" does not appear in s.s.17(a) or s.17(c).)
It is, however, well-established in the law that the use of the
word "knowingly" does not require that a person know that his
actions violate the law or that the person intends to violate the
law. "Knowingly" when used in a statute "imports a perception of
the facts requisite to make up the crime ... but contains no
element of purpose to violate the law." Commonwealth v.
McKnight, 283 Mass. 35, 39 (1933) (citations omitted);
Commonwealth v. Altenhaus, 317 Mass 270, 273 (1940).

[18] By the time DEA made the November 1992 payment to
Beukema, you knew that Beukema was a ZBA member, that the
recycling center matter involved the interests of the town, and
that the matter had been before Beukema's board for special
permit site plan review. Thus, you had the requisite knowledge
about the relevant facts to be said to have knowingly provided
Beukema with compensation that he was prohibited from receiving
under s.17(a). What you were mistaken about (along with Beukema,
Conley and Bacon) was how the law (G.L. c. 268A, s.17) applied to
the facts of Beukema's situation. As set forth above, based on
what you were told by the others, you mistakenly believed that,
because Beukema was a "special municipal employee" and was going
to abstain from the matter as a ZBA member, Beukema did not have
a conflict of interest law problem in representing you before the
ZBA. This mistake of law does not, however, alter the conclusion
that there is reasonable cause to believe that you knowingly
caused DEA to give to a Douglas town employee (Beukema)
compensation in relation to a particular matter in which the town
of Douglas was a party, in violation of s.17(b). It is, however,
a mitigating circumstance which the Commission has considered in
determining how this matter should be resolved. See infra.

[19] The Commission is authorized to impose a civil fine of
up to $2,000 for each violation of G.L. c. 268A. The Commission
chose to resolve this matter with a public enforcement letter due
to the unusual circumstances here presented. Thus, you are a
private person who hired a public employee, at first not knowing
he was a public employee or that the matter as to which you had
hired him would come before his municipal board, and then
continued to deal with the public employee (and caused that
employee to be compensated) in reliance, in part, upon the
employee's mistaken representations (and those of the employee's
board's chairman) that there was no conflict of interest problem
in the employee representing you before his own board because he
was a special municipal employee and would not officially
participate in the matter as to which you privately employed him.
Furthermore, the Commission has had very few public cases
concerning the meaning of s.17(b) (in contrast to its many
s.17(a) and s.17(c)-related cases) and it may have been unclear
to the general public that your conduct as a private business
person dealing with a public official, as described in this
letter, was prohibited. The Commission also notes your full
cooperation with the Commission's investigation of this matter.

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