Public Enforcement Letter 87-4

Walter Johnson

May 26, 1987

Dear Mr. Johnson:

As you know, the State Ethics Commission has conducted a
preliminary inquiry regarding an allegation that while serving as
a member of the Stoughton Board of Selectmen (Board), you acted as
agent for, and received compensation from, Goddard Memorial
Hospital (GMH) in connection with matters in which the Town of
Stoughton had a direct and substantial interest. Our inquiry also
focused on your conduct as an agent/employee of GMH following your
resignation from the Board.[1] The results of our investigation
(discussed below) indicate that the conflict of interest law was
violated in this case. However, in view of certain mitigating
circumstances (also discussed below), the Commission has determined
that further proceedings are not warranted, and that the public
interest would better be served by bringing to your attention the
facts revealed by our investigation and explaining the application
of the law to those facts, trusting that this advice will ensure
your future understanding of, and compliance with, the law. By
agreeing to this public letter as a final resolution of this
matter, the Commission and you are agreeing that there will be no
formal action against you and that you have chosen not to exercise
your right to a hearing before the Commission.

I. The Facts

1. At all relevant times until January 20,1986, you were a
member of the Board and, as such, a "municipal employee" as defined
in G.L. c. 268A, s.1(g). You also served as Acting Town Manager
from January to May, 1984.

2. On June 22,1984, you were interviewed for the position of
Director of Planning and Construction at GMH. You were the only
candidate considered, and you were hired to commence working for
the hospital on July 5,1984. As Director of Planning and
Construction, you are in charge of all construction projects for
the hospital.

Well Agreement

3. As early as 1982, representatives from the Town of Stoughton
were negotiating with officials from GMH to develop jointly a water
source found on the property of GMH. Ajoint development would allow
the town to expand its water supply and allow GMH to expand its
physical plant.

4. On January 17,1984, the efforts of the town's negotiating
team were discussed by the Board in executive session. According
to the minutes, you participated as a Selectman in that discussion
and in a vote to submit an article concerning the negotiations to
Town Meeting. On April 10,1984, you again participated in a
discussion and vote to go forward with the well agreement. Your
Board briefly reviewed the agreement at two other meetings in
April, 1984. In addition to the Board meetings, you participated
in these negotiations in February, 1984, when you joined the
principal negotiators for a meeting at GMH to work out issues
concerning the well agreement.

5. In late August, 1984, as a GMH employee, you attended a
meeting to finalize the new well agreement. Shortly thereafter, you
solicited bids for the well's engineering design and
specifications, met with town officials to pinpoint the exact
location of the well, discussed the wording of the well agreement
with GMH's attorney, and attended a meeting with town officials at
DEQE to discuss the well.

6. You also attended a January 16,1986 meeting of the Zoning
Board of Appeals as a representative of GMH where GMH officials
threatened to void the well agreement if the medical office
building (see below) was not permitted to be built.

Medical Office Building Proposal

7. In 1983, GMH submitted to the Board a request for a zoning
change to allow the construction of a medical office building and
other hospital development. Your Board, although it had no
discretion to accept or reject articles submitted for the town
meeting's warrant, did endorse the zoning change.

8. From April, 1985 to February, 1986, while employed at GMH and
during the time you served as a Selectman, you represented GMH
before the Zoning Board of Appeals, the Planning Board and the
Board of Health in connection with various permits and zoning
decisions relating to the medical office building. After you
resigned as Selectman, you continued to represent GMH's interests
in connection with the construction of the medical office building.

Reginald Cole Drive

9. On September 20,1984, the President of GMH

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filed an application with the Planning Board for approval to
construct Reginald Cole Drive. You initialed this application. On
November 8,1984, you attended a Planning Board meeting concerning
the road development and spoke on behalf of GMH. On May 9,1985, you
filed a notice of intent with DEQE. (Your name appeared on this
notice as the "Responsible Officer Project Proponent.") On May
22,1986, you appeared before the Planning Board to present a
modification of the road plan and answer questions.

10. On June 11, 1985, your Board approved a recommendation of
the Town Engineer that the Board recommend to the Zoning Board of
Appeals that a special permit be granted to the hospital for the
roadway named Reginald Cole Drive. You abstained in this approval.

Town Counsel Opinion

11. Shortly after you began employment with GMH, you wrote to
Town Counsel, Leonard Kopelman, seeking direction with respect to
conflict of interest issues. You wrote,

I realize that I cannot act in any official capacity as a
selectman in matters coming before the town which will affect
the Goddard Hospital. I seek your opinion as to further
questions arising under the conflict law relating to my duties
responsibilities now that I am employed by Goddard Hospital.

Kopelman responded that he saw no conflict of interest in holding
the two positions. "Since you are a paid employee of the Goddard
Hospital, you should, of course, not sign any documents between the
hospital and the Town of Stoughton and should abstain from any vote
taken therein," Kopelman wrote.

II. The Conflict Law

Section 17 of G.L. c. 268A prohibits municipal employees from
receiving compensation from, and/or acting as agent or attorney
for, a private party in connection with a particular matter in
which the municipality has a direct and substantial interest. Once
you were hired by GMH in July of 1984, one of your principal
responsibilities was to represent the hospital's interests before
town boards in connection with matters that were of direct and
substantial interest to the Town of Stoughton. The well agreement
was one such matter. Your work on behalf of GMH to finalize the
well agreement with the town, and to implement its terms, at a time
when you also served as Selectman, constituted a violation of
s.17(a). Your appearances before various town boards as a GMH
representative at a time when you also served as Selectman
constituted violations of s.17(c). Likewise, your appearances
before town boards in connection with permits for the construction
of the medical office building and for the construction of Reginald
Cole Drive constituted violations of this section.

Section 18 prohibits a former municipal employee from knowingly
acting as agent or attorney for, or from receiving compensation,
directly or indirectly, from, anyone other than the same city or
town in connection with any particular matter in which the city or
town is a party or has a direct and substantial interest, and in
which the person participated as a municipal employee. Section 18
also prohibits a former employee from appearing before any
town agency as agent or attorney of any private party in connection with
a particular matter which came under his official responsibility
within the two years prior to the termination of his employment,
whether or not he actually participated in the matter. This latter
prohibition lasts for one year following termination of employment.

Your representation of Goddard's interests in matters involving
the well, the medical office building and Reginald Cole Drive,
during the first year following your resignation from the Board,
created the same problems under s.18 that existed under s.17 while
you were still a Selectman.

The purpose of s.s.17 and 18 of G.L. c. 268A is to ensure that
a public employee's private representation of a private entity does
not compromise the loyalty owed to the town he serves. The facts
in this case suggest the potential for conflict between your
private responsibilities and your public duties.

The principal reason why the Commission has decided to resolve
this matter by means of this letter is because of your apparent
good faith reliance on Town Counsel's opinion which did not
adequately address the issues that you would be facing when you
accepted employ'ment at GMH.[2] While good faith reliance on Town
Counsel's opinion is not a shield from a violation of G.L. c. 268A,
the Commission has generally considered such an opinion in
mitigation of the violation. In this case, you asked the right
question to the right person but received an incorrect opinion, and
therefore the Commission has determined that a public enforcement
letter is the appropriate way to resolve this matter.

You should be aware that, pursuant to the requirements of s.18,
you are forever barred from representing the interests of GMH, with
or without pay, in any matter in which the Town of Stoughton had
a direct and substantial interest and in which you participated as
a Selectman.[3]

In our view, your Board's endorsement of the GMH zoning change
article placed on the town meeting warrant, was a discrete
particular matter. Prospectively, G.L. c. 268A, s.18 would prohibit
you from acting as an agent for or receiving compensation from GMH

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in connection with the Board's decision to place the zoning change
request on the town warrant. For example, you cannot challenge the
Board's decision to place this article on the town warrant. Aside
from this issue related to the zoning change, and assuming your
prior participation as a Selectman was limited to what has been
discussed above, you would be free to work for GMH on the medical
office building. By contrast, because the well agreement involves
a continuing contractual or joint venture arrangement between the
town and GMH, and because you participated in the creation of the
agreement, you will be barred from taking any action on behalf of
GMH in connection with the well until the agreement is terminated.

III. Disposition

Based on its review of this matter, the Commission sending
of this letter should be sufficient to ensure your understanding
of the law and your future compliance with it. Thank you for your
cooperation. If you have any questions, please contact me at
(617)727-0060.

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[1] A third allegation which was the subject of the preliminary
inquiry concerned whether you officially participated in a
patticular matter the well agreement - in which you knew GMH had
a financial interest at a time when you were negotiating employment
with GMH, in violation ofs.19 of G.L. c. 268A. Our investigation
uncovered no evidence which would establish a violation of this
section.

[2] While the opinion addressed the limitations on official
participation by you in matters in which your employee had a
financial interest, it overlooked the rescrictions with respect to
your acting as agent for, or receiving compensation from, GMH.

[3] You were barred for a period of one year from the date you lefi
town service from appearing before any Stoughton town board or
agency as agent for GMH in connection with any particular matter
in which Stoughton is a party or has a substantial interest, and
which was under your official responsibility as a Selectman at any
time within a period of two years prior to the time you resigned.
This one-year limitation expired January 20,1986.