Docket No. 605

In the Matter of Phillip S. Nelson

Date: July 13, 2000

Disposition Agreement


The State Ethics Commission ("the Commission') and Phillip
Nelson, ("Nelson") enter into this Disposition Agreement
("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, s.40).
On June 23, 1999, the Commission initiated, pursuant to G.L. c.
268B, s.4(a), a preliminary inquiry into possible violations of the
conflict of interest law, G.L. c. 268A, by Nelson. The Commission
has concluded its inquiry and, on March 22, 2000, found reasonable
cause to believe that Nelson violated G.L. c. 268A.

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

1. Nelson was, during the time relevant, a member of the
Randolph Landscape Review Board ("LRB").[1]

2. The five-member LRB was established by town meeting in 1972
to advise the planning board and zoning board of appeals on
landscape matters in connection with any business, industrial or
multi-family developments.

The LRB's procedures contemplate the following process: Site
plans are referred to the LRB by the planning board, zoning board
or building inspector, and the LRB has fourteen days to report back
to the referring entity. The LRB meets once a month and reviews
about two or three plans each meeting. Receiving two copies of the
plans, the LRB reviews the size and type of landscaping as well as
the materials to be used to insure that the landscaping is
appropriate and consistent with the surrounding area. The LRB meets
with the applicant to reach agreement on modifications the LRB
recommends; once agreement is reached, the LRB and applicant sign
the two plans; the LRB maintains one copy and forwards the other to
the Building Commissioner; the LRB approves the issuance of the
permit; the LRB chairman signs the Building Permit Application
Sign-On Sheet;[2] when the work is completed, the LRB (or a
majority of the LRB) does a site inspection, followed by the LRB
Chairman's signing the Building Department Certificate of Occupancy
Sign-Off Sheet.

3. Although the LRB procedures appear to have contemplated a
fairly formal process, the actual practice was much less rigorous.
One member of the LRB would generally sign the Sip-On Sheet, but
that did not necessarily mean that the LRB had reviewed the plans.
Sometimes there were plans that contemplated no landscaping;
sometimes it was obvious that the plans would eventually require
landscaping, but the landscaping plan had not yet been drafted
because it would be provided later. Moreover, once the landscaping
was actually done, one or more of the LRB members would inspect the
site and then, assuming the "as built" was satisfactory, one of the
members would sign the Sign-Off Sheet. The board would not
necessarily meet to accomplish these tasks.

4. Nelson owns and operates Nelson Landscaping and Garden
Center, Inc. in Randolph, a company which

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has operated for almost forty years.

Honey Dew Donuts

5. On November 14, 1996, Nelson as an LRB member unilaterally
signed the Sign-On Sheet (signifying approval by the LRB to the
issuance of the building permit) for the Honey Dew Donuts project
at 106 Mazzeo Drive with the understanding that the landscaping
plans would be submitted later.

6. On October 19, 1997, Nelson submitted a $3,600 estimate for
proposed landscaping work at the Honey Dew site and did the work
shortly thereafter. Almost immediately, an LRB member raised an
issue as to why the work was done prior to LRB review and approval.

7. On October 28,1997, Nelson presented a landscaping sketch
to the LRB depicting the work Nelson Landscaping, Inc. had done at
the Honey Dew site and represented that the work had been done
properly. He also explained why he did the work without first
obtaining approval. (His explanation was that the work needed to be
done immediately so that the developer could open up for business.)
The LRB voted 2-2 on approving the plan with Nelson abstaining. The
plan, therefore, was not approved. Nelson was admonished to follow
proper procedure, i.e., submit the landscaping plan before doing
the work.

8. On November 25,1997, the LRB again voted on the Honey Dew
matter. The vote was 2-0 with Nelson abstaining. Nelson did not
make any presentation at that time.

9. On December 9, 1997, LRB member Karl Wells "signed off 'on
the Sign-Off Sheet permit for Honey Dew Donuts, on behalf of the
LRB. According to Wells, he did not conduct a formal inspection
because the LRB did not have an approved plan to compare to the
completed landscaping. He agreed to sign-off on the matter so as
not to hold up the occupancy permit and because he relied on
Nelson's earlier representation that the work had been done
properly.

10. Honey Dew paid Nelson Landscaping the $3,600 in March
1998.

Jamp Realty - Shaw's Supermarket


11. On June 2, 1997, Jamp Realty submitted a building permit
application for certain renovations and site improvements in or
around the Shaw's Supermarket. There was no LRB approval required
because there was no landscaping contemplated on the building plan
at that time. (The project involved interior building renovations.)

12. Sometime shortly thereafter, the Building Department
issued the building permit.

13. On July 28, 1997, the LRB met and discussed the fact that
no landscape plan had been submitted for the project, and that
Nelson would contact the owner of the plaza and suggest planters in
the parking lot. (Nelson later did so.)

14. On February 24, 1998, the LRB reviewed the project plans.
No landscaping was noted.

15. At some uncertain point thereafter, Jamp Realty decided to
incorporate landscaping into its plans for the project.

16. In or about November 1998, Nelson did the contemplated
landscaping work, which he then billed Jamp Realty for $4,345.

17. In or about November 1998, Nelson submitted a landscape
plan for the landscape work to the LRB.

18. On November 24, 1998, the LRB reviewed the landscaping
plan. They found no problems with the work. Nelson appeared on
behalf of Nelson Landscaping and Garden Center, Inc. and advised
the board on the work that had already been done. He abstained as
an LRB member. Nelson explained to the board that although the
original plan called for twelve trees on six islands plus certain
other plantings, the work involved planting six trees on six
islands. Nelson explained that the change was necessary because the
parking lot islands could not go in as planned.

19. It is unclear if the work was ever inspected by the LRB.
The occupancy certificate issued, although the Sign-Off Sheet was
not signed by the LRB.[3]

20. In January and February, 1999, Jamp, Realty paid Nelson
Landscaping and Garden Center, Inc. for the above work.

21. Section 17(c) of G.L. c. 268A prohibits a municipal
employee from acting as agent for anyone other than the
municipality in connection with a particular matter[4] in which the
municipality is a party or has a direct and substantial interest.
Section 17 applies less restrictively to special municipal
employees. Special municipal employees are prohibited from acting
as agent for or receiving compensation from a private party if they
have participated[5] in or have official responsibility[6] for the
particular matter in question.[7]

22. At all times relevant, Nelson was a member of the LRB. As
such he was a municipal employee as that term is defined in G.L. c.
268A, s. 1. Furthermore, at all times relevant Nelson's position
was designated as a

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special municipal employee position for G.L. c. 268A purposes.

23. The decisions by the LRB regarding the Honey Dew and Jamp
Realty projects on October 28, 1997, and November 24, 1998,
respectively, were particular matters.

24. The town had a direct and substantial interest in these
particular matters because they were an integral part of the
process by which the building permits issued and because the town
bylaws required this input.

25. Nelson represented Nelson Landscaping and Garden Center,
Inc. at these meetings. Thus, he acted as an agent for someone
other than the town in connection with particular matters in which
the town had a direct and substantial interest. By doing so, Nelson
violated s. 17(c).

26. Nelson incorrectly believed that it was permissible to
represent private clients before the LRB provided that as an LRB
member he abstained from voting, discussing or acting on any matter
in which a client had an interest. His understanding was incorrect.

27. Nelson cooperated fully with the Commission's
investigation.

In view of the foregoing violations of G.L. c. 268A by Nelson,
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 Nelson:

(1) that Nelson pay to the Commission the sum of one thousand
seven hundred and fifty dollars ($1750) as a civil penalty for
violating G.L. c. 268A, s. 17(c);[8]

(2) that Nelson waive all rights to contest the findings of
fact, conclusions of law and terms and conditions contained in
this Agreement in this or any other related administrative or
judicial proceedings to which the Commission is or may be a
party.

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

[1] Nelson was appointed to the LRB in 1989 and served on the
board until it was abolished in November 1999, when its duties were
transferred to the Design Board.

[2] The Building Permit Application Sign-On Sheet is a
document which accompanies the plans and contemplates a signature
from each department with an interest in the matter. The signature
signifies that the signer's department has no objection to the
permit issuing.

[3] According to Nelson, this was because the particular
sign-off simply "fell through the cracks."

[4] "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).

[5] "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.

[6] "Official responsibility" means the direct administrative
or operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action.

[7] Section 17 would also apply in this context if the
particular matter were pending before the special municipal
employee's agency, and if the special municipal employee served on
more than sixty days during any period of 365 consecutive days.

[8] It should be noted that s. 17 is not limited to just
appearances before a board or its employees. Section 17(a)
prohibited Nelson from being paid for doing the landscaping work in
the field because it was in relation to an LRB approval of the
plans and eventual inspection and approval of what was done. Thus,
Nelson's receiving compensation from Honey Dew and Jamp Realty for
the actual landscaping work violated s. 17(a), and would have done
so even if he had never appeared before the LRB regarding that
work, No separate penalty is imposed for that conduct, however. See
In re Martin
, 1999 SEC 931 (public enforcement letter for work done
in relation to permits even though no appearances before board.)

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End of Decision