May 2, 2013

DISPOSITION AGREEMENT

The State Ethics Commission (“Commission”) and Sherman E. Briggs, Jr. (“Briggs”) 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, § 4(j).

On February 17, 2012, 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 Briggs. On July 20, 2012, the Commission concluded its inquiry and found reasonable cause to believe that Briggs violated G.L. c. 268A, §§ 19 and 17.

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

  1. During the relevant time, Briggs was an appointed member of the Town of Marion Conservation Commission (“Conservation Commission”).  Conservation Commission members are designated as special municipal employees for conflict of interest purposes.  As such, Briggs was a special municipal employee as that term is defined in G.L. c. 268A, § 1(n).
  2. Briggs owns and operates Sherman E. Briggs Excavating (“Briggs Excavating”), an unincorporated business.
  3. For at least 20 years, Briggs Excavating has performed excavating work for Tabor Academy, a private high school in Marion.
  4. Briggs, as owner and operator of Briggs Excavating, performed the excavation work for the installation of the utilities at Tabor Academy's Marine Science Center site many years ago.
  5. In or about spring 2011, Tabor Academy needed to file a Notice of Intent with the Conservation Commission in order to obtain its approval for the installation of two 2,000-gallon saltwater tanks at Tabor Academy's Marine Science Center (the “Notice of Intent”).
  6. Prior to filing the Notice of Intent, a Tabor Academy official met with Briggs, as owner and operator of Briggs Excavating, for Briggs’ assistance in determining how and where to install the concrete footings for the saltwater tanks.
  7. On June 3, 2011, Tabor Academy filed the Notice of Intent.
  8. On June 22, 2011, the Conservation Commission held a hearing regarding the Notice of Intent.
  9. Briggs personally and substantially involved himself as a Conservation Commission member in the discussion at the June 22, 2011 hearing regarding the Notice of Intent and voted at that hearing to issue an Order of Conditions regarding the Notice of Intent (the “Order of Conditions”).
  10. On June 27, 2011, the Conservation Commission issued the Order of Conditions, which allowed Tabor Academy to install the saltwater tanks.
  11. Sometime after June 22, 2011, but before July 6, 2011, Tabor Academy hired Briggs Excavating to perform the excavation work needed for the installation of the saltwater tanks.
  12. On or about July 6, 8, 14 and 15, 2011, Briggs, as owner and operator of Briggs Excavating, performed the excavation work needed for the saltwater tanks installation.
  13. By invoice dated August 11, 2011, Briggs, through Briggs Excavating, billed Tabor Academy $8,030 for the excavating and backfilling work performed for the saltwater tanks installation.

Conclusions of Law - Section 19

  1. Except as otherwise permitted, § 19 of G.L. c. 268A, in relevant part, prohibits a municipal employee from participating[1] as such an employee in a particular matter[2] in which, to his knowledge, he has a financial interest.[3]
  2. The Order of Conditions was a particular matter.
  3. Prior to participating at the June 22, 2011 hearing as described above: (1) Briggs Excavating had performed excavating work for Tabor Academy for at least 20 years; and (2) Briggs, through Briggs Excavating, had recently provided Tabor Academy with advice as to how and where to install the concrete footings for the saltwater tanks. Consequently, when, on June 22, 2011, Briggs participated in the decision to issue the Order of Conditions, he knew he had a reasonably foreseeable financial interest in the particular matter.
  4. Accordingly, by participating as a Conservation Commission member in the decision to issue the Order of Conditions for the Tabor Academy saltwater tanks, a particular matter in which Briggs knew he had a reasonably foreseeable financial interest, Briggs violated § 19.

Conclusions of Law - Section 17(a)

  1. Section 17(a) of G.L. c. 268A prohibits a municipal employee, otherwise than as provided by law for the proper discharge of official duties, from directly or indirectly receiving compensation from anyone other than the municipality in relation to a particular matter in which the municipality is a party or has a direct and substantial interest.
  2. A special municipal employee is subject to § 17(a) only in relation to a particular matter (a) in which he has at any time 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.
  3. As stated above, the decision to issue the Order of Conditions was a particular matter.
  4. The Town of Marion, through the Conservation Commission, was a party to and/or had a direct and substantial interest in that particular matter.
  5. As a special municipal employee, Briggs personally and substantially participated in the particular matter by discussing the Notice of Intent and voting to issue the Order of Conditions.
  6. The excavating work needed for the installation of the saltwater tanks was in relation to the Order of Conditions.
  7. By receiving $8,030 from Tabor Academy in payment for the excavating and backfilling work performed for the installation of the saltwater tanks, Briggs received compensation from someone other than the Town of Marion in relation to a particular matter in which the Town of Marion was a party and/or had a direct and substantial interest.
  8. This receipt of compensation was not otherwise than as provided by law for the proper discharge of Briggs' official Conservation Commission duties.
  9. Accordingly, by receiving compensation from Tabor Academy in relation to the Order of Conditions, a particular matter in which the Town of Marion had a direct and substantial interest, Briggs violated§ 17(a).
  10. In view of the foregoing violations of G.L. c. 268A by Briggs, 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 Briggs:

(1) that Briggs pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $7,500 as a civil penalty for violating G.L. c. 268A, §§ 19 and 17(a); and

(2) that Briggs 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.

By signing below, Briggs acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to all of the terms and conditions therein.

STATE ETHICS COMMISSION

//signed//                               3/13/13         
Sherman E. Briggs, Jr.         Date                       

//signed//                               5/2/13
Karen L. Nober   
Executive Director



[1] "Participate" means to participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, § 1(j).

[2] "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, § I(k).

[3] “Financial interest” means any economic interest of a particular individual that is not shared with a substantial segment of the population of the municipality. See Graham v. McGrail, 370 Mass. 133 (1976). This definition has embraced private interests, which are direct, immediate or reasonably foreseeable.  See EC-COI-84-98.