Docket No. 563

In the Matter of Mark P. Reed

Date: June 16, 1997


This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Mark P. Reed
("Reed") 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. 26813,

On August 8, 1996, the Commission initiated, pursuant to G.L.
c. 26813, s.4(a), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A, by Reed. The Commission
has concluded its inquiry and, on June 11, 1997, found reasonable
cause to believe that Reed violated G.L. c. 268A.

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

1. Reed was, during the time relevant, a member of the
Southampton Conservation Commission ("Conservation Commission"). As
such, Reed was a municipal employee as that term is defined in G.L.
c. 268A, s. 1.

2. At all times relevant hereto, Reed was a surveyor employed
by Heritage Surveys, Inc. ("Heritage") as a salaried full-time

3. Reed appeared as a surveyor before the Conservation
Commission on behalf of the following Heritage clients on the
following occasions:

(a) On April 11, June 13, June 27 and June 29, 1994, on behalf
of Jeffrey Swanson ("Swanson") in relation to a new house to

Page 860

built on Glendale Road in connection with a notice of
intent dated June 5, 1994, and an order of conditions dated
July 11, 1994 for the aforementioned house.[1]

(b) On August 15 and November 14, 1994, on behalf of Henry
Hochman ("Hochman") in relation to a barn to be built at 14
Russellville Road in connection with a request for a
determination of applicable dated August 9, 1994, and a
negative determination granted by the Conservation Commission
on August 18, 1994, in connection with the aforementioned

(c) On June 13, June 27, June 29, July 25 and August 15, 1994
on behalf of Paul Lussier ("Lussier") in relation to a
proposed subdivision known as Pomeroy Meadows in connection
with a notice of intent dated June 7, 1994.

(d) On July 31, 1995 on behalf of Mark W. and Carolyn A.
Blackmer ("the Blackmers") in relation to the proposed
construction of a single family home on Brickyard Road
Extension in connection with a notice of intent dated July 20,
1995 and an order of conditions dated August 14, 1995, for the
aforementioned house.

4. Reed received compensation from Heritage for appearing on
behalf of Swanson, Hochman, Lussier and the Blackmers before the
Conservation Commission. The compensation paid to Reed by Heritage
was his normal salary. Reed did not receive additional compensation
from Heritage for his appearances before the Conservation

5. 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 his town has a direct and
substantial interest.

6. The decisions to grant determinations of applicability and
orders of conditions were particular matters. The town had an
obvious direct and substantial interest in those particular

7. By acting as agent for Swanson, Hochman, Lussier and the
Blackmers before the Conservation Commission concerning their
notices of intent, determinations of applicability and/or orders of
conditions as set out in the foregoing paragraphs, Reed violated
G.L. c. 268A, s.17(c).

8. Reed did not participate as a Conservation Commission
member in any of the above matters concerning Swanson, Hochman,
Lussier or the Blackmers.

9. When Reed was appointed to the Conservation Commission, he
discussed his employment with Heritage with the Selectmen and the
other Conservation Commission members. As a result of these
discussions, Reed incorrectly believed that it was permissible to
represent Heritage and its clients before the Conservation
Commission. His understanding was that, as a Conservation
Commission member, he would abstain from voting, discussing or
acting on any matter in which Heritage had any involvement. His
understanding was incorrect."

10. Reed cooperated fully with the Commission's investigation.

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

(1) that he, in the future, refrain from acting as agent for
private parties in connection with particular matters in which
the Town of Southampton has a direct and substantial interest,
prohibited by G. L. c. 268A, s. 17(c);

(2) that he pay to the Commission the sum of one thousand five
hundred dollars ($1,500) as a civil penalty for the violations
of G.L. c. 268A, s.s.17(c); and

(3) that he 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


[1] A notice of intent informs a Conservation Commission of a
developer's plan to do work in a wetlands or in the 100 foot
wetlands buffer. In turn, the Conservation Commission regulates how
and where the work is done by issuing an "order of conditions."

[2] A determination of applicability indicates whether the
proposed project is within the jurisdiction of the Conservation

Page 861

[3] Reed's reliance on incorrect advice is not a defense.
While such reliance can be a mitigating factor, little weight is
given when the advice is oral and not from town counsel. The only
advice which can be relied on as a defense is written advice from
the State Ethics Commission, or the Commission's written
concurrence with town counsel advice. See 930 CMR 1.03. Reed
neither contacted town counsel nor the State Ethics Commission
concerning representing clients before the Conservation Commission.

Page 862

End of Decision