September 16, 2010
This Disposition Agreement is entered into between the State Ethics Commission and Michael Cole ("Cole") pursuant to Section 5 of the Commission's Enforcement Procedures. This agreement constitutes a consented-to final order enforceable in Superior Court, pursuant to G.L. c. 268B, § 4(j).
On January 20, 2010, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Cole. On April 16, 2010, the Commission concluded its inquiry and found reasonable cause to believe that Cole had violated G.L. c. 268A, § 17.
The Commission and Cole now agree to the following findings of fact and conclusions of law:
Findings of Fact
1. Cole was, during the relevant time, a Town of Eastham (the "Town") Planning Board member. Planning Board members had not been designated as special municipal employees.
2. Cole is president of Cape Associates, Inc. ("Cape Associates"), a construction company located in the Town.
3. In Spring 2005, Cole, as Cape Associates' president, agreed to build a 250 square foot addition (the "Addition") to a dental office located in the Town (the "Dental Office"). The plans for the Addition were prepared by a designer and a professional land surveyor.
4. In order to obtain a building permit to construct the Addition, the Dental Office's owner needed a special permit from the Planning Board to comply with the town's commercial site plan approval bylaw.
5. On March 9, 2005, Cole submitted a special permit application for the Addition (the "Application") to the Planning Board on behalf of the Dental Office's owner.
6. At a May 11, 2005 Planning Board hearing, Cole stepped down from the Planning Board and presented the Application to the Planning Board on behalf of the Dental Office's owner.
7. The Planning Board voted to approve the Application, six in favor and none against. Cole did not participate in the vote.
8. Cape Associates received $56,950 for the work in connection with the construction of the Addition.
Conclusions of Law
9. Section 17(a) prohibits a municipal employee, other than as provided by law for the proper discharge of his official duties, from requesting or receiving compensation from anyone other than the same municipality in relation to a particular matter in which that municipality is a party or has a direct and substantial interest.
10. As a Planning Board member, Cole was at all times relevant to this matter a municipal employee as defined in G.L. c. 268A, § 1(g). At the relevant time, Cole had not been designated as a special municipal employee under § 1(n) of the statute.
11. The decision to approve the Application was a particular matter.
12. Because the Application involved a special permit issued by the Planning Board, the Town had a direct and substantial interest in that particular matter.
13. The compensation Cole requested and received from the Dental Office'' owner for constructing the Addition was in relation to the Board's decision to approve the Application.
14. This compensation was not as provided by law for the proper discharge of Cole's duties.
15. By acting as described above, Cole violated § 17(a).
16. Section 17(c) prohibits anyone, other than in the proper discharge of his official duties, from acting as agent for anyone other than the town in connection with a particular matter in which the same town is a party or has a direct and substantial interest.
17. As stated above, the decision to approve the Application was a particular matter; and, because the Application involved a special permit issued by the Planning Board, the Town had a direct and substantial interest in that particular matter.
18. By submitting and presenting the Application, Cole acted on behalf of the Dental Office's owner as the owner's agent.
19. Cole acted on behalf of the Dental office's owner in connection with the Board's decision to approve the Application.
20. Cole's actions as agent were not in the proper discharge of Cole's official duties.
21. Therefore, by acting as described above, Cole violated § 17(c).
In view of the foregoing violations of G.L. c. 268A by Cole, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the basis of the following terms and conditions agreed to by Cole:
(1) that Cole pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $2,000 as a civil penalty for violating G.L. c. 268A, §§ 17(a) and 17(c); and
(2) that Cole 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 terms and conditions contained in this Agreement.
STATE ETHICS COMMISSION
_ //signed//_________ 9/8/10_____ ____ //signed//________ 9/16/10
Michael Cole Date Karen L. Nober Date
I, Michael Cole, 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 $2,000 to the Commonwealth of Massachusetts, with such payment to be delivered to the State Ethics Commission.
_ //signed// 9/8/10______
Michael Cole Date