Public Enforcement Letter 99-2

In the Matter of William J. Devlin

Date: August 26, 1998


William J. Devlin
c/o Joel Castleman, Esq.
1145 Main Street
Springfield, MA 01103
August 26, 1998

Dear Mr. Devlin:

As you know, the State Ethics Commission ("the Commission")
has conducted a preliminary inquiry into allegations that you
violated the state conflict of interest law, General Laws c. 268A,
by receiving compensation from and acting as an agent for private
architectural clients in relation to matters pending before the
Springfield Historical Commission, of which you were a member.
Based on the staff's inquiry (discussed below), the Commission
voted on July 22, 1998, to find reasonable cause to believe that
you violated the state conflict of interest law, G.L. c. 268A, s.
17(a) and (c).

For the reasons discussed below, the Commission 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 public's
attention, the facts revealed by the preliminary inquiry and by
explaining the application of the law to the 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 a private architect and the president of William J.
Devlin AIA, Inc., a small architectural firm. You were appointed
to the Springfield Historical Commission ("the SHC") in June 1992
by Mayor Robert T. Markel.[1]

2. Pursuant to the Historic Districts Act, G.L. c. 40C, no
building within an historic district shall be constructed or
altered "in any way that affects exterior architectural features"
unless the historic commission issues a certificate of
appropriateness, non-applicability or hardship with respect to such
construction or alteration. Id. s. 6. A person desiring such certificate
shall file an application together with such plans, specifications or other
information as may enable the historic commission to make its
determination. Id. Such certificate is a prerequisite to issuance of a
building permit. Id. In determining matters before it, the historic
commission "shall not consider interior arrangements or
architectural features not subject to public view." Id. s. 7.

3. From about 1984 until your appointment to the SHC in June
1992, you would regularly attend SHC hearings out of personal
interest and voluntarily provide photographic services to the
board. In August 1987, SHC Chair Francis Gagnon asked if you would
like to be on the SHC. Your response was positive, and throughout
the following years, you expressed your continued interest in an
appointment to a series of mayors and to Gagnon.

4. In a September 4, 1987 letter to Gagnon, you restated certain
items that the two of you had discussed about an appointment,
including your understanding that when "proposing work at my own
houses, or representing a client's project, I simply abstain from
voting, and can go to the petitioners' side of the table as I deem
necessary." In a September 10, 1990 letter to Gagnon, you again
stated your understanding that there was no restriction on your
taking work as an architect in the various historical districts.
Rather, you explained in the letter, when one of your jobs was
being heard, you would excuse yourself as commissioner, make your
presentation from the other side of the table and abstain from the
voting. You also requested in that letter that Gagnon send you any
written guidelines, handbook or appropriate statutes on being a
commissioner.[2]

5. Just before your June 1992 appointment, you met with a city
council subcommittee. You told us that at that meeting, you
informed the subcommittee and Gagnon that you intended to do
architectural work in Springfield that you would submit to your own
board. No one stated any problem with your doing so. You
understood, however, that you could not vote on matters when you
represented clients before your board.

6. Your reappointment to the SHC was approved in

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April 1994.

7. On March 23, 1994, the McKnight Neighbor-hood Council, Inc.
filed an application for a certificate of appropriateness from the
SHC regarding installation of a handicap-access ramp on property
within the historic district.[3] The application included plans
prepared by you, but your handwriting did not appear on the
application (as it had on previous applications). You expected to
make the presentation on behalf of your client at the April 21,
1994 hearing.

8. According to you, Gagnon spoke with you just prior to the
April 21, 1994 hearing and informed you that you should not
represent people before your own board. You were upset by the
short notice of this restriction, but you briefed your client on
the presentation and stayed out of the room. You did not vote on
the matter.

9. Thereafter, you expected to receive further conflict of
interest advice from the city's legal department, but you did not
hear from anyone. Thus, your understanding was that you could
continue to submit work to the SHC, but you could not make the
presentations yourself.

10. On May 10, 1994, you executed a contract with the Mental
Health Association of Greater Springfield, Inc. ("the Mental Health
Assoc."), which you had represented before your board in 1993.[4]
Pursuant to the contract, you would provide architectural services
to renovate a building at 30 High Street as a six-bedroom
shelter.[5] Your compensation for basic architectural services ù
including design, drawings and specifications ù was $16,200.[6]

11. Sometime in May 1995 the Mental Health Assoc. filed an
application for a certificate of appropriateness from the SHC
regarding the renovations to 30 High Street; your handwriting does
not appear on the application. The application stated the proposed
change as follows:

Renovation of building to include restoration of front portion.
Repair and restoration of rear portion. Alterations to include
raising roof of rear portion and changing windows in rear portion.
See accompanying drawings submitted under separate cover.

You had prepared the plans and architectural designs submitted
to the SHC but did not plan to make the presentation at the public
hearing, which was scheduled for June 1, 1995.[7]

12. On June 1, 1995, the date of the Mental Health Assoc.
hearing, you received a letter dated May 31, 1995, from Deputy City
Solicitor Harry P. Carroll. Carroll's letter constituted a legal
opinion concerning the Mental Health Assoc.'s application on which
you were listed as the architect of record. Carroll advised you on
the restrictions of s. 17(a) and (c) for a special municipal
employee. Carroll informed you that as you were a member of the
SHC, any application filed with the SHC was a subject of your
official responsibility. Thus, you could not "act as an agent for
any person or entity filing an application with" the SHC and could
not receive direct or indirect compensation from anyone other than
the city in relation to any particular matter which was the subject
of your official responsibility. Carroll further advised you
"to refrain from acting as an agent for, or receiving compensation
from, any party appearing before" the SHC, and "from participating
or voting as a member of [the SHC] with respect to the application filed
by" the Mental Health Assoc. without a determination from the Ethics
Commission that such conduct was permissible. Carroll instructed
you on how to request an opinion from the Ethics Commission. The
letter was copied to the SHC.[8]

13. You told us that you received Carroll's opinion letter in
the afternoon of June 1, 1995, and spoke briefly with Carroll prior
to that evening's hearing.

14. Mary Wallachy of the Mental Health Assoc. made the
presentation on the evening of June 1, 1995. You left the room and
abstained from any official participation in the vote. The SHC
approved the renovation plans.

15. You received a total of $16,200 from the Mental Health
Assoc. for the base project and an additional $1,780 for the
"restoration-oriented historic work." You received your first
payment in March 1995, two payments in June 1995, two payments
in late November 1995, two payments in December 1995, one
payment in late January 1996, and the full payment for the
restoration-oriented work ($1,780) in late August 1996.

16. By letter dated December 20, 1995, you sought an
opinion from the Ethics Commission regarding the May 31, 1995
opinion from Carroll.[9] You provided a history of your work with
the SHC, including your three client representations in 1993 and
your last-minute withdrawal from a presentation on April 21, 1994.
You indicated that you had had a number of other projects in
historic districts that did not get as far as reviews. You also
noted that you had a current contract with the Mental Health Assoc.
to provide standard architectural services, for which you expected
a major fee. You stated in your letter that it seemed natural to
you that the architect on the SHC would have historic district
projects, and you had been clear about that from the beginning.

17. A February 1, 1996 informal advisory opinion from the
Legal Division informed you that the Legal Division concurred with
Carroll's opinion, and provided the principles behind s. 17. The
opinion clarified that "acting on behalf of" included signing
documents or

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submitting applications for another, and that any
application filed with the SHC was clearly within your official
responsibilities even if you refrained from official participation
in the matter.[10]

18. On February 1, 1996, the mayor of Springfield officially
removed you from the SHC based on your alleged violations of
chapter 268A.[11]

19. Former SHC members told us that you were particularly
conscientious about ethical issues. They also stated that prior to
1994 SHC members were unaware that they could not represent clients
before the board.


II. Discussion


As a former member of the SHC you were a special municipal
employee and, as such, subject to the following sections of G.L. c.
268A.

Section 17(a) prohibits a municipal employee, otherwise than
as provided by law, from receiving or requesting compensation from
anyone other than the municipality in relation to any particular
matter[12] in which the municipality is a party or has a direct
and substantial interest. Section 17(c) prohibits a municipal
employee, otherwise than in the proper discharge of his official
duties, from acting as agent for anyone other than the municipality
in connection with any particular matter in which the municipality
is a party or has a direct and substantial interest.[13]

In 1994 and 1995 you prepared plans that your clients
submitted in support of their applications for certificates of
appropriateness, but you did not write the applications or make the
presentations yourself. As each of these matters concerned
property within the historic district and were presented to the SHC
for approval, they constituted particular matters in which the city
had direct and substantial interests, and were the subject of your
official responsibility. Your actions constituted acting as agent
for private parties in connection with these matters. Moreover,
you received compensation from private clients in relation to these
matters. Accordingly, there is reasonable cause to believe that
you violated s. 17(a) and (c).

The Commission is aware of the various efforts you made to
comply with the conflict of interest law, but does not fully
understand why you continued to submit documents ù or allow your
documents to be submitted ù to your own board as late as May 1995.
Arguably, you should have known by this time that you could not
allow this to happen without violating s. 17. Commission Advisory
No. 13A (Municipal Employees Acting as Agent) (issued in January
1993 and revised in July 1994);[14] EC-COI-93-15 (selectman who is
also a professional engineer may not receive compensation for
preparing, nor place his professional seal on, documents to be
submitted to a town agency).


III. Disposition


The Commission is authorized to resolve violations of G.L. c.
268A with civil penalties of up to $2,000 for each violation. The
Commission chose to resolve this case with a public enforcement
letter ù rather than pursuing a formal order which might have
resulted in a civil penalty ù because your conduct involved a
rather subtle restriction imposed by s. 17: you received
compensation from and acted as agent for private clients without
making any personal appearances before your own board on their
behalf. The Commission has never publicly resolved a s. 17
violation that did not involve personal appearances. Thus, your
situation presents an opportunity for the Commission to educate the
public on the point that a municipal employee violates s. 17 by
receiving compensation from or acting as agent for a private party
in connection with submitting documents to a municipal board, even
if the municipal employee avoids making any personal appearances
before the board.

Based upon its review of this matter, the Commission has
determined that your receipt of this public enforcement letter
should be sufficient to ensure your understanding of and future
compliance with the conflict of interest law. This matter is now
closed.

------------------------

[1] The SHC comprises seven members appointed by the mayor to
three-year terms, unpaid. One member of the board is required to
be an architect, one a real estate agent, one a historian and one
a representative of the Springfield Preservation Trust.

[2] You apparently did not receive anything in response to your
request.

[3] You told us that you received $280 for this job.

[4] You had worked on other architectural projects for the Mental
Health Assoc. prior to that.

[5] The project was a $220,000 rehab on a long-vacant house to
provide transitional housing and support services for homeless
people with a history of mental illness. The project was to
receive both state and federal funding, including funding from
historical entities. The renovations were scheduled to begin in
July 1995.

[6] The $16,200 was divided as follows: $12,150 for
design/documents, and $4,050 for the construction phase. The
contract also specified that your $16,200 fee was for the "'base'
project, the overall scope of the work, without the
restoration-oriented historic work. For that MHC (Mass. Historic
Commission) funded work, the Architect's proposed fee is $1,780."

[7] You provided us with a copy of your notes regarding the June 1,
1995 presentation. These indicate your intention not to make the
presentation because of conflict of interest laws.

[8] Carroll's opinion does not clarify that "acting as an agent"
may include submitting documents on behalf of another. Thus, your

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understanding at that time was that you could not appear or
represent clients before the SHC, from which conduct you had
refrained since April 1994. You told us that you had no
understanding then regarding the submission of documents.
Moreover, you believed that Carroll's opinion did not apply
retroactively to work for which you had already contracted and
which you had already performed, especially where it would have
left your client in a difficult situation. Since then you have
refused to take on any projects which would require you to have any
dealings with the SHC.

[9] You told us that the six-month delay could have been because
you were busy, but you also surmised that you were prompted to contact
the Commission when the new mayor asked all board members to tender
their resignations.

[10] This appears to be the first time that you were specifically
told that "acting as agent" is not limited to making personal
appearances, but can include submitting documents or applications
on behalf of another.

[11] You later told the Legal Division that you were resigning from
the SHC to pursue your private architectural practice, based on the
Legal Division's opinion.


[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] These sections of s. 17 apply to special municipal employees
in relation to those particular matters in which the special municipal
employee officially participated at any time, or which were the
subject of his official responsibility within the past year. Thus,
a special municipal employee is prohibited from acting privately on
those matters concerning his own municipal board or agency, even if
the matter is before a different municipal board or agency.
[14] This advisory states that submitting applications or
supporting documentation to a third party constitutes prohibited agency
conduct, as does preparing documents that require a professional
seal.


End of Decision