Docket No. 556

In the Matter of James H. Quirk, Jr.


Date: September 23, 1998


Appearances:

Laurie Ellen Weisman, Esq.
Counsel for the Petitioner

David A. McLaughlin, Esq.
Counsel for the Respondent

Commissioners: Brown, Ch[1]., Larkin, Rapacki, Moore, Liacos
Presiding Officer: Commissioner Lynne E. Larkin

DECISION AND ORDER


I. INTRODUCTION AND PROCEDURAL HISTORY


On August 8, 1996, the Petitioner initiated these proceedings
by issuing an Order to Show Cause (OSC). See 930 C.M.R. s.
1.01(5)(a). The OSC alleges that the Respondent, James H. Quirk,
Jr. (Quirk), while he was a member and chairman of the Town of
Yarmouth's Conservation Commission (ConCom), violated G. L. c.
268A, s. 17(a) by receiving a fee from private landowners for
their lawsuit against the Town for damages for land taken by
eminent domain for conservation purposes. The specific allegation
is that he "received compensation from someone other than the town
in relation to a particular matter in which the town had a direct
and substantial interest, and in which Quirk had participated as a
Conservation Commission member, and/or for which he had official
responsibility within the prior year." In addition, the OSC
alleges that Quirk violated G. L. c. 268A, s. 17(c) by acting "as
attorney for someone other than the town in prosecuting a claim
against the town, and in connection with a particular matter in
which the town had a direct and substantial interest, and in which
Quirk participated as a Conservation Commission member, and/or for
which he had official responsibility within the prior year."

On August 29, 1996, the Respondent filed an Answer in which,
among other things, he asserted an affirmative defense of statute
of limitations. On May 1, 1998, the Respondent filed a motion to
dismiss the OSC and supporting memorandum (Motion), arguing that
the statute of limitations bars all of the allegations against him.
The Petitioner filed its opposition to the Motion on May 11, 1998.
The Respondent and the Petitioner presented oral arguments on the
Motion before all five members of the Ethics Commission on July 22,
1998.


II. FINDINGS


Based upon the joint Stipulation of Facts and other evidence
the parties submitted in connection with the Motion, we find as
follows:[2]

1. Quirk was a member of the ConCom from April 15, 1986 through
June 30, 1994. As a member of the ConCom, he was a "special
municipal employee" as defined in G. L. c. 268A, s. 1(n).

2. During his tenure on the ConCom, Quirk was also a practicing
attorney who had a general law practice that included eminent
domain cases.

3. As a result of a Special Town Meeting on January 7, 1987, the
Town's voters authorized the Board of Selectmen "to acquire by
purchase, gift or eminent domain

Page 918

for conservation purposes parcels of land," including, among other parcels,
land owned by Thomas M. and Nora C. King (Kings).

4. On March 5, 1987, the ConCom, including Quirk, met in an
executive session and voted to request that the Town acquire for
conservation purposes the land authorized by the January 7, 1987
Special Town Meeting, including land owned by the Kings.[3]

5. The Board of Selectmen filed an Order of Taking by Eminent
Domain, which included the Kings' land, on or about December 14,
1987, with the Barnstable County Registry of Deeds.

6. On or about December 23, 1987, the Kings met with Quirk and
hired him to represent them in a lawsuit against the Town. On
March 31, 1988, Quirk filed suit on behalf of the Kings, seeking
compensation for the land taken. From that date through March 25,
1994, which was the date of execution on judgment in favor of the
Kings in the amount of $376,911.66, Quirk, as the Kings' attorney,
filed various court papers, corresponded with counsel for the Town
and generally pursued his clients' claim against the Town. Quirk
received $122,934.81 in fees for representing the Kings.

7. During the course of the litigation, the Board of Selectmen
proposed settling the Kings' lawsuit by offering to return the
land. On February 6, 1992, at a ConCom meeting which Quirk did not
attend, the ConCom met in executive session to approve the
Selectmen's proposed offer.[4]

8. Sometime in early 1992, the Board of Selectmen became
concerned that Quirk had a conflict of interest as a result of his
being a member of the ConCom while also representing the Kings in
seeking damages for land in which the ConCom also had an interest.
To address the Board's concerns, the Town obtained an opinion
letter dated April 7, 1992 from special municipal counsel
concerning Quirk's activities on behalf of the Kings.

9. The following excerpts from the April 7, 1992 opinion letter
are relevant:

This opinion relates to the activities of James H. Quirk, Jr.
who is coincidentally acting as counsel for Thomas M. King in
connection with a land damage action against the Town of Yarmouth
(Barnstable Superior Court Civil Action Number 88-286) while a
member (current Chairman) of the Conservation Commission of
the Town of Yarmouth. . . .

[O]n December 14, 1987 the Town went to record with a taking
of land in which Thomas M. King and Nora C. King purportedly held
an interest. The instrument of taking was recorded in Barnstable
County Registry of Deeds . . . . The so-called King property was
a portion of a larger parcel taken by eminent domain for
conservation purposes. . . . No pro tanto award was paid at the
time of the taking.

The Kings commenced the land damage action against the
town in April 1988. . . .

It appears . . . that Mr. Quirk never participated in the
process of selecting the King property as a candidate for
taking action by the Board of Selectmen, nor did he participate
in the process of recommending a taking of the King property.
In addition, the Kings have never sought any action by the
Conservation Commission relative to this land, The Board of
Selectmen, unbeknownst to Mr. Quirk, having solicited the
concurrence of the Conservation Commission, which obviously
acted without the participation of Mr. Quirk, made a subsequent
determination that the King property was not significant for
conservation purposes and has offered to return the property to
the Kings. This offer was proffered to the Kings via a letter of
Town Counsel, . . .to . . . Quirk, as counsel for the Kings, dated
February 14, 1992.

Mr. Quirk has not participated in any actions by the
Commission or the Town, upon which the Town subsequently
determined that the King property is not significant for conservation
purposes and offered to return the land to the Kings.

Mr. Quirk is a 'special municipal employee' as that term is
defined and employed in G. L. c. 268A, and there is no suggestion
that his service involves more than sixty days service in any
consecutive three hundred and sixty-five days. I do not find,
based upon the foregoing specific facts, that Mr. Quirk has
participated in the King matter as a member of the Conservation
Commission or that Mr. Quirk has exercised official responsibility
over any action pertinent to the particular facts set forth.

10. The April 7, 1992 opinion letter was filed with the
Ethics Commission in June, 1992.

11. Andrew Crane, then Executive Director of the Ethics
Commission, issued an opinion letter dated June 19, 1992 that
states:

Pursuant to the Commission's municipal advisory opinion
regulation, 930 C.M.R. 1.03(3),[[5]] we have reviewed your opinion
of April 7, 1992, and subsequent letters, concerning Conservation
Commission Chairman James H.

Page 919

Quirk, Jr.

Assuming (as you represent) that as a Conservation Commission
member Mr. Quirk is a 'special municipal employee' who does
not serve more than 60 days in any relevant 365-day period,
G. L. c. 268A, s. 17 prohibits him from acting as agent or attorney
for, or receiving compensation from, anyone other than the Town
in relation to any particular matter in which the Town is a party
or has a direct and substantial interest, and either (a) in which he
participated, or (b) which has been the subject of his official
responsibility within one year. Your opinion states that the
Conservation Commission concurred in the Selectmen's offer to
return the subject property to the Kings, although Mr. Quirk did
not participate. Nonetheless, the matter was under his 'official
responsibility' merely by the Commission's having authority to
make recommendations about it to the Selectmen while he was
a Commission member. EC-COI-87-17. You have been unable
so far to learn when the Commission last had such authority about
this matter.

Therefore, Mr. Quirk may not act as attorney for, or receive
compensation from, any private party (including Thomas King), in
relation to this land taking, for one year after the Commission
last had (or has) authority to make recommendations about.


III. DECISION


Respondent argues that the OSC should be dismissed because the
OSC issued more than three years after the Petitioner had knowledge
or should have had knowledge of the alleged violations. In so
arguing, the Respondent has emphasized the following portion of the
Commission's statute of limitations regulation, 930 C.M.R. s.
1.02(10)(a): "An order to show cause must be issued within three
years after a disinterested person learned of the violation."

This three year tort statute of limitations adheres to
principles described in Nantucket v. Beinecke, 379 Mass. 345,
349-351 (1979). See also Zora v. State Ethics Commission, 415
Mass. 640, 647-648 (1993). Beinecke holds that the statute of
limitations begins to run when a disinterested person capable of
acting on behalf of the plaintiff to enforce the conflict of
interest law knew or should have known of the wrong. Id. at
350-351.

Applying the general principles of Beinecke and the
Commission's regulation to this case, the Petitioner must establish
by a preponderance of the evidence that it did not know, nor should
it have known, of the alleged violations more than three years
prior to the issuance of the OSC. Under the Commission's
regulation, once the Respondent raises the statute of limitations
defense, the Petitioner may satisfy its burden by filing affidavits
from the Enforcement Division's investigator responsible for the
case, the Attorney General and the appropriate District Attorney's
Office stating, respectively, that no complaints relating to the
violation were received more than three years before the OSC
issued. 930 C.M.R. s. 1.02(10)(c)(1) & (2). See e.g., In re
Smith
1998 SEC Docket No. 522 (Memorandum and Order April 22,
1998); In re DiPasquale, 1996 SEC Docket No. 526 (Memorandum
and Order June 11, 1996).

Here, the Petitioner provided the affidavits. The Respondent,
however, argues that the record contains other undisputed evidence
from which to conclude that the Petitioner knew or should have
known of the Respondent's alleged violations prior to August 8,
1993 (three years prior to the OSC). The Petitioner does not deny
that the Executive Director of the Ethics Commission had knowledge
of some of the relevant facts in 1992 but asserts that the
Petitioner did not have knowledge of all of the crucial facts more
than three years prior to the date of the OSC. As a result, the
Petitioner argues that it did not know of the violations nor should
it have known of the violations more than three years before the
OSC issued. To resolve that issue, we consider the following legal
principles.

To determine when the limitations period commenced, we must
evaluate the Petitioner's level of knowledge and its duty to
inquire further. "Reasonable notice that a . . . particular act of
another person may have been a cause of harm to a plaintiff creates
a duty of inquiry and starts the running of the statute of
limitations." Bowen v. Eli Lilly & Co., 408 Mass. 204, 210 (1990).
The required level of knowledge is not notice of every fact that
must be proved to support a claim, but rather knowledge that an
injury has occurred. Pagliuca v. Boston, 35 Mass. App. Ct. 820,
824 (1994) (although the plaintiff may not have known of the
severity of harm she suffered from the defendant's alleged
violation of her civil rights until after her breakdown, she knew
the necessary facts to make out a civil rights claim). The inquiry
is whether, based on the information available to the Petitioner,
a reasonably prudent person in the Petitioner's position should
have discovered the cause of action. See McGuinness v. Cotter,
412 Mass. 617, 628 (1992). Thus, the cause of action accrues when
the Petitioner knew, "or in the exercise of reasonable diligence,
should have known of the factual basis for a cause of action."
Gore v. Daniel O'Connell's Sons, Inc., 17 Mass. App. Ct. 645, 647
(1984). "The unknown factor, however, must be what the facts are,
not the legal theory for the cause of action." Id. See also Friedman v.
Jablonski
, 371 Mass. 482, 485-487 (1976).[6]

Page 920



Applying these principles to this case, we conclude the
following. We first observe that s. 17(a) and (c) of G. L. c.
268A apply to a special municipal employee in relation to a
particular matter either "in which he has at any time participated
as a municipal employee" or "which is or within one year has been
the subject of his official responsibility." In this case, the
Petitioner pled the alternative theories of the Respondent's
participation in or official responsibility for the relevant
particular matters to support allegations that the Respondent's
conduct on behalf of the Kings violated both s. 17(a) and (c).

As of June 1992, the Executive Director knew that the
Respondent was a special municipal employee of Yarmouth as a
member of its ConCom while also acting as the attorney for private
landowners in a lawsuit against the Town for monetary damages for
their land taken by eminent domain.[7] The Executive Director knew
that the ConCom had authority "to make recommendations about [the
Kings' property] to the Selectmen." The Executive Director
concluded that such authority amounted to the Respondent's official
responsibility for the land taking. Acknowledging that the
Respondent might request or receive compensation for his services
as the Kings' attorney,[8] the Executive Director, acting on behalf
of the Commission pursuant to its municipal advisory opinion
regulation,[9] warned the Respondent in the June 19, 1992 letter
that "he may not act as attorney for, or receive compensation from,
any private party (including Thomas King), in relation to this land
taking . . . ." Thus, the Executive Director and, therefore the
Commission, knew or should have known that both s. 17(a) and (c)
were potential causes of action, as of June 1992.[10]

The Petitioner argues that because the Respondent appears to
have received compensation within the three year limitations
period, the alleged violation of s. 17(a) occurred less than three
years prior to the OSC and is not barred. This argument fails
because, as noted above, the Petitioner reasonably should have
known more than three years prior to the OSC that the Respondent
may have received or requested compensation as the attorney
representing clients seeking damages for an eminent domain taking.
See Pagliuca, 35 Mass. App. Ct. 820, 824. The Petitioner also
argues that it had no knowledge, more than three years prior to the
date of the OSC, of the Respondent's participation in the March 5,
1987 vote of the ConCom. Again, through the exercise of reasonable
diligence based upon what it knew, the Petitioner could have
learned of the Respondent's participation in the relevant
particular matter. See Friedman, 371 Mass. at 486-487.

On this record, therefore, we conclude that the Petitioner
knew or should have known of the alleged violations in the OSC more
than three years prior to the date the OSC was issued.


IV. CONCLUSION


For all of the above-stated reasons, we conclude that there is
no genuine issue of material fact as to whether the Petitioner knew
or should have known of the alleged violations more than three
years prior to the issuance of the OSC. Accordingly, the
Respondent's motion for summary decision based upon the statute of
limitations is GRANTED and this matter is dismissed.

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

[1] Commissioner Brown is not a signatory to this Decision and
Order because his resignation from the Commission became effective
prior to its issuance. He did, however, fully participate in the
Commission's deliberations and decision in this matter.

[2] The parties submitted a joint Stipulation of Facts on December
11, 1996. In addition, the parties have presented evidence outside
the pleadings and the Stipulation for purposes of the Motion. As
a result, we consider the Motion as one for summary decision. See
930 C. M. R. s. 1.01(6)(e) & (f).

[3] The Respondent disputes that he participated in an executive
session of the ConCom on that date, arguing that proof of such
facts is barred by New England Box Co. v. C. & R. Construct'n Co.,
313 Mass. 696, 702 (1943) and Town of Dedham v. Frank Gobbi et al.,
6 Mass. App. Ct. 883 (1978). For the purposes of the Motion,
however, he assumes this finding arguendo.

[4] The Respondent disputes that the ConCom met in executive
session on February 6, 1992 to approve the offer, also based upon
the cases cited in note 3 supra, but assumes this finding arguendo.

[5] We note that 930 C.M.R. s. 1.03(3) states in pertinent part:
"Following receipt of the opinion, the Commission, acting through
the Executive Director, shall notify the . . . town counsel of any
legal conclusions in the opinion which are inconsistent with
Commission conclusions on similar issues under M.G.L. c. 268A or
are otherwise, in the Commission's judgment, incorrect, incomplete
or misleading."

[6] The policies that support imposing a limitations period on
actions under the conflict of interest law are the same as those
behind any statute of limitations. They "encourage plaintiffs to
bring actions within prescribed deadlines when evidence is fresh
and available," Franklin v. Albert, 381 Mass. 611, 618 (1980) and
they "represent a judgment that it is unjust to fail to put the
adversary on notice to defend within a specified period of time and
that 'the right to be free of stale claims in time comes to prevail
over the right to prosecute them.'" United States v. Kubrick, 444
U.S. 111, 117 (1979) (quoting Railroad Telegraphers v. Railway
Express Agency
, 321 U.S. 342, 349 (1944)).

[7] Section 17(c) states, in relevant part, "No municipal employee
shall . . . act as agent or attorney for anyone other than the . . .
town . . . in connection with any particular matter in which the
same . . . town is a party . . . ."

[8] Section 17(a) states, in relevant part, "No municipal employee
shall . . . receive or request compensation from anyone other than
the . . . town . . . in relation to any particular matter in which
the same . . . town is a party . . . ." (emphasis added).

[9] See note 5 supra.

[10] We have considered only the extent of the Executive Director's

Page 921

knowledge in circumstances in which he acted on behalf of the
Commission pursuant to 930 C.M.R. s. 1.03(3). Thus, we need not,
and, therefore, do not, decide the extent to which knowledge of
other Commission personnel might trigger the running of the statute
of limitations.

Page 922


End of Decision