Docket No. 570




In the Matter of Martin Nieski

Date: April 14, 1998

Disposition Agreement


The State Ethics Commission ("Commission") and Martin Nieski
("Nieski") 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. 4(j).

On January 21, 1998, the Commission initiated, pursuant to
G.L. c. 268B, s. 4(j), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by
Nieski. The Commission has concluded its inquiry and, on March 10,
1998, found reasonable cause to believe that Nieski violated G.L.
c. 268A, s. 17(c).

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

1. Nieski was, during the time relevant, a member of the
Dudley Board of Selectmen (the "Board"). As such, Nieski was a
municipal employee as that term is defined in G.L. c. 268A, s.
1.[1] Nieski had been a member of the Board since 1995.

2. Nieski Incorporated ("Nieski Inc.") is a Massachusetts
corporation formed in 1996. At the time relevant, Nieski's wife
Catherine ("Catherine") was the sole officer, director, and
shareholder of the corporation.

3. On February 10, 1997, Nieski Inc. submitted to the Board an
application to transfer a package store liquor license from Ideal
Liquors, Inc. to Nieski Inc. Catherine signed the application for
the corporation. The Board approved the transfer application on
February 24, 1997.[2]

4. The Town of Dudley assesses each package store license holder
an annual fee of $1,100. Ideal Liquors paid the $1,100 annual
liquor license fee in January 1997 when it renewed its license.
Shortly after the Ideal Liquors license was transferred to Nieski
Inc., the Town of Dudley sent Nieski Inc. a bill for the entire
$1,100 annual fee.

5. On April 7, 1997, the Board held a hearing at the request of
Nieski Inc. to discuss the $1,100 fee assessed.

6. At the April 7, 1997 meeting, Nieski appeared before the
selectmen on behalf of Nieski Inc. and argued extensively that
since Ideal Liquors had already paid the annual fee for its
license, the Board should not have charged Nieski Inc. with the
annual fee again. Catherine was also present and made brief
comments to the board.

7. Section 17(c) of G.L. c. 268A prohibits a municipal employee
from acting as agent for anyone other than the municipality in
relation to a particular matter in which the town has a direct and
substantial interest.

8. The decision whether to uphold, modify or waive assessment of
the annual liquor license fee is a particular matter in which the
Town of Dudley had a direct and substantial interest.

9. By appearing before the Board and advocating on behalf of
Nieski Inc. regarding the $1,100 annual liquor license fee
particular matter, Nieski acted as an agent for Nieski Inc.
Therefore, by acting as Nieski Inc.'s agent in relation to a
particular matter in which the town had a direct and substantial
interest, Nieski violated s. 17(c).

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

(1) that Nieski pay to the Commission the sum of two
hundred and fifty dollars ($250.00) as a civil penalty for
violating G.L. c. 268A, s. 17; [3] and

(2) that Nieski 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] Nieski is no longer a member of the Board.

[2] Nieski did not participate as a Board member in this action.

[3] The Commission generally imposes larger fines for s. 17
violations. See, e.g., In re Reed, 1997 SEC 860 (private surveyor
who served on a Conservation Commission violates s. 17(c) and fined
$1,500 for representing four private clients before his own board,
three of those on multiple occasions). In re Nutter, 1994 SEC 710
(historic commission member fined $1,000 for representing client
before his

Page 903

own board). Here, however, Nieski was representing his
wife's closely held corporation. The Commission has found the
representation of family trusts and closely held corporations to be
a mitigating factor in the past. See, e.g., In re Reynolds, 1989
SEC 423 and In re Zora, 1989 SEC 401, both s. 17 cases where the
Commission imposed no fine for several reasons, one of which was
the fact that a family trust or closely held corporation was
involved.

Page 904

End of Decision