Public Enforcement Letter 98-1

Walter Hewitson

August 13, 1997

Dear Mr. Hewitson:

As you know, the State Ethics Commission ("Commission") has
conducted a preliminary inquiry into allegations that you violated
the state conflict of interest law, G.L. c. 268A, by receiving
compensation from or acting as an agent for private parties in
relation to Bridgewater Conservation Commission matters. Based on
the staff's inquiry (discussed below), the Commission voted on
January 15, 1997, that there is reasonable cause to believe that
you violated the state conflict of interest law, G.L. c. 268A,
s.17(a) and (c). 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

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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.


A. Facts


1. You were, during the time relevant, a member of the
Bridgewater Conservation Commission ("Conservation Commission").

2. You were, during the time relevant, a wetlands botanist who
performed wetlands delineations for individuals and businesses for
a fee.

3. Between August 1991 and April 1995, as a consultant to
engineering firms and to individual property owners, you prepared
approximately 38 wetland delineation reports, most of which you
knew would be submitted to the Conservation Commission in
connection with various applications to the Conservation
Commission." Your signature on your reports identifies you as a
"Ph.D. in Botany." You were a member of the Conservation Commission
at the time you prepared these reports.

4. On February 25, 1995, the Conservation Commission held an
on-site review regarding a six house subdivision known as Four Leaf
Circle. Certain abutters and other nearby property owners had
complained that the wetlands boundaries were too narrow in scope,
and should be broadened to exclude two additional buildable lots.'
You were at the site review at the request of the engineer who
hired you to delineate the wetlands. You made a presentation to
those in attendance at the site review, defending why you flagged
the wetlands in the manner you did. (You had done the wetlands
delineation for this subdivision on September 7, 1994.)

5. You were compensated for performing the wetlands
delineation for the Four Leaf Circle subdivision.

6. You abstained as a Conservation Commission member whenever
a matter came before the Conservation Commission which involved a
delineation you had done.


B. Discussion


As a Conservation Commissioner you were a municipal employee
as that term is defined in G.L. c. 268A, s.1. General Laws c. 268A,
s.17(a) prohibits a municipal employee, otherwise than in the
proper discharge of his official duties, from receiving
compensation from any one other than the town in relation to any
particular matter in which the town is a party or has a direct and
substantial interest. General Laws c. 268A, s.17(c) prohibits a
municipal employee, otherwise than in the proper discharge of his
official duties, from acting as agent for a private party in
connection with any particular matter in which the town is a party
or has a direct and substantial interest.

Determinations of and decisions regarding orders of conditions
are particular matters in which the town has a direct and
substantial interest. Most of the 38 wetlands delineation reports
prepared by you were submitted to the Conservation Commission in
connection with the Conservation Commission making determinations
of non-applicability and issuing orders of conditions. Therefore,
the reports submitted were "in relation to" those particular
matters. In addition, the Four Leaf Circle site visit on February
25, 1995, was obviously in relation to the determination of
non-applicability that was pending before the Conservation
Commission regarding that development. You received compensation
for submitting these reports.[3] In submitting these reports you
were acting as an agent for your clients.

By preparing for compensation wetlands delineations reports
that you knew would likely be submitted to the Conservation
Commission and which, in fact, were submitted to that Conservation
Commission, you received compensation from someone other than the
Town of Bridgewater in relation to particular matters in which the
town had a direct and substantial interest.[4] Therefore, there is
reasonable cause to believe you violated s.17(a).[5] See, e.g.,
Townsend, Jr., 1986 SEC 276 (disposition agreement in which
Conservation Commission member pays $1,000 fine for violating s.
17(a) and (c) by acting as a paid engineer on behalf of private
client in relation to Conservation Commission matters).

In addition, by preparing wetlands delineation reports which
you knew would likely be submitted to the Conservation Commission
with your name appearing as the author, and by appearing on behalf
of your client at the February 25, 1995 site review, you acted as
agent

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for someone other than the Town of Bridgewater in relation to
particular matters in which the town had a direct and substantial
interest. Therefore, there is reasonable cause to believe you
violated s.17(c).

By way of defense, you note that before doing wetlands
delineations in Bridgewater, you asked the Conservation Commission
chairman and agent, respectively, how the conflict of interest law
would apply to your doing wetland delineations for private clients.
From these conversations it was your understanding that you could
submit your reports to the Conservation Commission for their
review, however, you could not participate as a Conservation
Commission member in any matters that came before it where you had
done the wetlands delineation for the applicant. Further, you also
understood that you could not represent clients before the
Conservation Commission or use your position to obtain a favorable
result for a client.

The advice you received regarding your submitting reports was
incorrect. As the State Ethics Commission has observed on several
occasions, reliance on incorrect advice is not a defense unless the
advice is given by town counsel and approved by the Commission.
Good faith reliance on incorrect advice can, however be a
mitigating factor. See Lavoie, 1987 SEC 286, 289. You should have
been advised that even if you abstained from participating as a
Conservation Commission member, and even if you did not appear
before the Conservation Commission in person on behalf of a private
client, your doing the delineations and your submitting your
reports would, nevertheless, violate s. 17(a).


C. 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, rather than pursuing a formal order which might have
resulted in a civil penalty, because the vast majority of your
conduct-doing the 38 delineations and submitting the
reports-involved an issue the Commission has not previously
publicly addressed and which is subtle; namely, whether
delineations and reports of delineations are in relation to a
Conservation Commission particular matter even though the
delineator does not necessarily know that the report will be
submitted to the Conservation Commission. (As discussed above, with
the publication of this letter we are making clear that we will
conclude that the delineation and report are "in relation to" a
particular matter in which the town has a direct and substantial
interest if the delineator knew it was likely that the report would
be so submitted unless the report is not filed with the
Conservation Commission or the delineator obtained an assurance
from the client that no such filing was contemplated.)

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 an future
compliance with the conflict of interest law.

This matter is now closed.

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

[1] More than half of the above 38 wetlands delineation
reports were submitted to the Conservation Commission. They were
submitted either for the purpose of a determination of
non-applicability (i.e., a decision that the project did not
involve wetlands or any area within 100 feet of wetlands) or to
obtain an order of conditions (a decision as to the conditions
under which construction may occur in wetlands or in the 100 foot
buffer zone). From your attendance at Conservation Commission
meetings, you had knowledge that the majority of your reports were
being filed with the Commission.

[2] The loss of these additional lots might have made the
project commercially unfeasible for the developer.

[3] The evidence is unclear as to whether your original fee
for doing the Four Leaf Circle wetlands delineation included any
defense of that delineation which might later become necessary,
such as at a site review. You stated that in the case of a single
lot homeowner, any such subsequent defense typically is part of the
original fee, whereas you generally charge an additional fee if a
subdivision is involved. As to the Four Leaf Circle delineation,
you stated that because it involved a subdivision as opposed to a
single lot, you would have ordinarily charged a separate fee for
your site review appearance. Nevertheless, in this instance, you
did not submit an additional bill because you were satisfied in
simply proving that your critics were in error. Obviously, if you
had charged an additional fee for this site review, that too would
be compensation in relation to the particular matter in which the
town had a direct and substantial interest.

[4] In order to act as an agent it is not necessary to
personally appear before a board. It is sufficient to correspond
with a board on behalf of a third party or sign a report or stamp
a plan on behalf of a third party knowing that the report or plan
will be filed with the board.

[5] Where a public official is privately employed as a
professional, such as a botanist, engineer, or surveyor, and is
asked as such a professional to prepare a report which he knows or
reasonably should know is likely to be submitted to a board, agency
or commission in his own town, the public official has a duty to
inquire as to whether the report will be so submitted.

If the answer to the inquiry is yes, as discussed above, the
public

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official will generally be barred by s.17 from accepting the
job. (There are some exceptions for special municipal employees.)
If the public official fails to make the inquiry, he will be deemed
to violate s.17 if the report is, in fact, so submitted.

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End of Decision