Docket No. 326

In the Matter of Richard L. Reynolds

November 9, 1989

Decision and Order



Appearing:

Freda K. Fishman, Esq.
Counsel for Petitioner
Robert E. McLaughlin, Esq.
Counsel for Respondent

Commissioners:

Hennessey, Ch., Basile, Epps,
Jarvis[1]

Page 424

I. Procedural History

The Petitioner initiated these adjudicatory proceedings on March
12, 1987 by filing an Order to Show Cause pursuant to the
Commission's Rules of Practice and Procedure, 930 CMR 1.01(5)(a).
The Order alleged that the Respondent had violated G.L. c. 268A,
s.17(c) on two occasions. Specifically, the Petitioner alleged that
the Respondent acted as an agent for the Periwinkle Field Trust by
personally appearing before the Saugus Planning Board (Board) on
September 19 and October 3, 1985 in connection with the Board's
approval of the definitive subdivision plan for Periwinkle Park,
a matter in which Saugus was a party and had a direct and
substantial interest.

The Respondent filed his Answer to the Order to Show to Cause
on April 10,1987, admitting that, at all times relevant, he was a
member of the Saugus Board of Selectmen (Selectmen) and the trustee
of Periwinkle Field Trust, but denying that he appeared as the
agent of the trust before the Board on September 19, and October
3, 1985.

Prior to the hearings, the Respondent submitted a motion that
Presiding Officer, A. John Pappalardo, recuse himself and a motion
that the Commission disqualily Commissioner Pappalardo on grounds
of conflict of interest. The motion to recuse was denied by the
Presiding Officer. The Commission denied the motion to
disquality.[2]

An adjudicatory hearing was held on February 15, 1989. At the
close of the Petitioner's case, the Respondent moved, pursuant to
930 CMR 1.01(6)(d), for a directed finding on the grounds that the
Petitioner had failed to prove that the Respondent acted as an
agent or attorney for anyone in connection with the subdivision
approval and that the Town of Saugus had a direct and substantial
interest in the subdivision plan application. The motion was taken
under advisement by Commissioner Pappalardo for consideration by
the full Commission. The Respondent then presented his case.

The parties filed post hearing briefs and presented oral
arguments before the Commission on September 20, 1989. In his post
hearing brief and at oral argument, the Respondent raised the
additional contention that he was entitled to an exemption under
s.17[3] and that the Petitioner had failed to meet its burden of
proof that said exemption was not applicable. In rendering this
Decision and Order, each undersigned member of the Commission has
considered the testimony, evidence and argument of the parties,
including the bearing transcript.

II. Findings of Fact

1. From April, 1983 to November, 1985, the Respondent was a
member of the Saugus Board of Selectmen (Selectmen).

2. The Respondent is an attorney and civil engineer.

3. In early August, 1982, the Respondent purchased a piece of
property at 170 Hamilton Street in Saugus.

4. After purchasing the property, the Respondent sought guidance
from the Saugus Planning Board regarding development of the
property. The Planning Board expressed concern about the extent of
blasting that would be required in order to develop the property
into single family dwellings.

5. At the suggestion of the Planning Board, the Respondent
developed a plan for multi-density housing on the Hamilton Street
site. The plan envisioned thirty townhouses and was a multi-
million dollar project. The Respondent considered this real estate
development to be a substantial investment.

6. Prior to becoming a Selectman, the Respondent made
presentations to the Planning Board and to the Town Meeting
regarding zoning changes for the development project.

7. In March, 1983, a vacancy arose on the Saugus Board of
Selectmen due to a resignation. The Respondent accepted
appointment to the vacant position.

8. In April, 1983, the Respondent transferred the property at
170 Hamilton Street to a family trust, the Periwinkle Field Trust,
of which the Respondent is a trustee and his family members are the
beneficiaries.

9. In May, 1984, a complaint was received by the Ethics
Commission regarding the Respondent's participation before various
boards while he was a Selectman.

10. As a result of the May, 1984 complaint, the Respondent, on
August 29, 1984 requested a written advisory opinion from the
Ethics Commission regarding whether he could, while a Selectman,
appear before the Town and Town boards on behalf of Periwinkle
Field Trust.

Page 425

11. The Ethics Commission authorized and issued to the
Respondent formal opinion EC-COI-84-117 on October 16, 1984. The
Commission concluded that the Respondent could not appear as
trustee of Periwinkle Field Trust before the Town and Town boards
without violating G.L. c. 268A, s.17. As a Selectman, the
Respondent was not eligible for any s.17 exemptions.[4]

12. On September 17, 1985, the Town Clerk's Office received an
application for approval of a definitive subdivision plan for
Periwinkle Park, 170 Hamilton Street, Saugus.

13. The owner of the property and the applicant of the plan was
Periwinkle Field Trust.

14. The plan was submitted by the Respondent as trustee of
Periwinllle Field Trust.

15. On September 19, 1985, the Saugus Planning Board held a
public hearing on the subdivision application of Periwinkle Field
Trust.

16. The Respondent and his daughter, Jane, were present at the
hearing.

17. At the September hearing, the Respondent intended that Jane
would make the presentation of the subdivision plan to the Board.

18. Prior to 1985, Jane was minimally involved with the
development of Periwinkle Park. At all times relevant, she was not
an attorney.

19. The Planning Board regarded the Respondent, not Jane, as the
most knowledgeable person at the hearings regarding the plan.

20. At the September hearing, members of the Planning Board
addressed questions directly to the Respondent regarding the
proposed road, parlting, hydrants, water mains, and the opinions
of other Town departments about the project. They asked the
Respondent to provide further information from other Town boards.
The Respondent answered the Board's questions.

21. At the September bearing, abutters and citizens expressed
their concerns about the project and raised questions regarding
traffic safety, drainage, the proposed road and proposed blasting.
The Respondent answered the questions, agreed to install a
catchbasin, agreed to obtain a pre-blasting survey and to obtain
insurance to cover any damage from blasting, and agreed to install
stop signs.

22. The Respondent was present at the September 19, 1985 meeting
as a trustee of Periwinkle Field Trust.

23. On October 3, 1985, the Planning Board held a further public
hearing on the Periwinkle Park plan.

24. At both hearings, the Planning Board was concerned about
problems that neighbors were voicing about the Periwinlle Park
project.

25. The Planning Board utilized the hearings as a public forum
to express clearly what conditions the Board wanted included in the
definitive plan.

26. The Respondent and his daughter, Jane, were present at the
October 3, 1985 Planning Board meeting.

27. On October 3,1985, the Respondent presented the Planning
Board with a letter regarding potential traffic safety at the
development that the Saugus safety officer had delivered to the
Respondent at the Respondent's office.

28. At the October 3, 1985 meeting, the Planning Board requested
the installation of a flashing light at Periwinkle Park. The
Respondent agreed.

29. At the October hearing, the Respondent agreed to include a
traffic island at the entrance of Periwinkle Park.

30. During the October hearing, at the request of an abutter,
the Respondent agreed to install a concrete curb.

31. At the October hearing, the Respondent and the Planning
Board discussed the requirements and conditions that the Planning
Board wanted to be included in the covenant agreement.

32. The Respondent was present at the October 3, 1985 meeting
as a trustee of Periwinkle Field Trust.

III. Decision

The Respondent has been charged with two separate violations of
G.L. c. 268A, s.17(c). Prior to addressing the substantive
allegations, we will address the motion for a directed finding.

A. Motion for a Directed Finding

The Respondent contends that he is entitled to a directed
finding on the grounds that the Petitioner

Page 426

failed to produce sufficient evidence to support a prima facie case
of a s.17(c) violation. To prove a s.17(c) violation, the
Petitioner is required to show that the Respondent: (i) at all
relevant times was a municipal employee; (il) otherwise than in the
proper discharge of his official duties acted as agent for someone;
(iii) in connection with any particular matter in which the same
municipality is a party or has a direct and substantial interest.

Having considered the evidence submitted by the Petitioner, in
the light most favorable to the Petitioner, the Commission
concludes that the evidence is adequate to support an inference
imposing liability on the Respondent. See, Mullins v. Pine Manor
College, 389 Mass. 47, 56 (1983); Sahagan v. Commonwealth, 25 Mass.
App. Ct. 953(1988); O'Malley v. Putnam Safe Deposit Vaults, Inc.,
17 Mass. App. Ct. 332, 333 (1983). It is undisputed that the
Respondent was a municipal employee at all relevant times and that
the subdivision application was a particular matted before the
Board. The documentary evidence demonstrates that the Town had a
direct and substantial interest in the contents of the subdivision
plan in order to determine 1hether the plan complied with local
regulations. The meeting minutes indicate that the Board was
concerned with the placement of hydrants, utilities, public safety,
traffic patterns and the installation of roads in the subdivision
plan. Furthermore, the covenant between the Town and the applicant
trust addressed issues of traffic safety, fire protection, road
construction, placement of utilities, street lighting, parking and
maintenance. All of these issues are of direct and substantial
interest to the Town, and the Town was a party to the covenant.
See, G.L. c. 41, s.81U.

Finally, a reasonable inference can be drawn from the
documentary evidence that the Respondent, as trustee of the
applicant trust, was acting as an agent for the trust before the
Board in order to gain approval for the application. The
application before the Board was on behalf of Periwinkle Field
Trust, the owner of the property, and was filed by the Respondent,
not in his personal capacity, but as trustee. Also, the September
Board minutes identily the Respondent as trustee of the trust.
From the minutes, it may be reasonably inferred that the Board
questioned the Respondent regarding the plan and negotiated with
the Respondent to obtain suitable conditions in the plan to meet
public safety and traffic concerns. In order for the Planning Board
to obtain the conditions it was seeking, the Board needed to bind
the applicant/trust and sought agreements from the Respondent as
the trust's representative. The Respondent participated by
answering questions, agreeing to conditions and discussing the
covenant. Therefore, the Commission concludes that sufficient
evidence was presented on each element to support an inference that
the Respondent violated s.17 on two occasions. The motion for a
directed finding is therefore denied.

B. Substantive Violations

The relevant portion of s.17(c) applicable to this case provides
that no municipal employee shall, otherwise than in the proper
discharge of his official duties, act as agent for anyone in
connection with any particular matter in which the same city or
town is a party or has a direct and substantial interest. It is
uncontested that, at all relevant times, the Respondent was a
Selectman and, thus, a municipal employee. See, District Attorney
for the Hampden District v. Grucci, 384 Mass. 525, 528 (1981). The
Respondent also agrees that the Periwinkle Park subdivision
application was a particular matter within the meaning of G.L. c.
268A. The issues in dispute are whether the Town was a parry to
or had a direct and substantial interest in the subdivision
application and whether the Respondent acted as an agent on behalf
of the Periwinkle Field Trust before the Board.

1. Particular Matter of Direct and Substantial Interest to Saugus

The Respondent argues that the subdivision approval does not
implicate a direct and substantial interest of the Town because
the ultimate obligation of the Board is the ministerial act of
signing off on the application if it fulfills the requirements of
Town regulations. We conclude that this argument fails because the
Town possesses substantial authority to require alterations and
amendments to plans in order to promote the health, welfare and
general safety of the community. See, G.L. c. 41, s.81K-8lGG. Among
other things, the Board has the power to adopt rules and
regulations pertainIng to subdivision control, to amend subdivision
plans, to request conditions, covenants and bonds. G.L. c. 41,
s.s.81Q, 81U, 81W. The Planning Board must exercise its powers


with due regard for the provisions of adequate access to all of
the lots in a subdivision by ways that will be safe and
convenient for travel; for lessening congestion in such ways and
in the adjacent public ways; for reducing danger to life and
limb in the operation of motor vehicles; for securing safety in
the case of fire, flood, panic and other emergencies; for
insuring compliance with the applicable zoning ordinances or
bylaws; for securing adequate provision for water,

Page 427

sewerage, drainage, underground utility services, fire, police
and other similar municipal equipment, and street lighting and
other requirements where necessary in a subdivision; and for
coordinating the ways in a subdivision with each other and with
the public ways in the city or town in which it is located ad
with the ways in neighboring subdivisions. G.L. c. 41, s.81M.

See, e.g. North Landers Corp. v. Planning Board of Falmouth, 382
Mass. 432, 437-438 (1981); Costanza and Bertolino, Inc. v. Planning
Board of North Reading, 360 Mass. 677,679 (1971).

Therefore, the Board has the obligation to insure that a
subdivision plan complies with all local health and safety
regulations. This Commission has stated in analogous cases that
"the Town has a direct ad substantial interest in a application
for, and issuance of a [building] permit because the issuance of
a permit is the local building official's decision or determination
that the work complies with all relevant codes, laws, ordinances,
rules ad regulations." EC-COI-88-9; see e.g., In the Matter of
Robert P. Sullivan, 1987 SEC 312 (release from bond; occupancy
permits) EC-COI-87-31 (application, decision to issue ad permit for
installation of septic systems); EC-COI-84-76 (zoning matters ad
revenue bonding); EC-COI-83-153 (town permits and approval required
for building construction). Accordingly, the Commission finds that
the Town has a direct ad substantial interest in the Periwinkle
Park subdivision pla application. See, Commonwealth v. Canon, 373
Mass. 494,498(1977); Braucher, Conflict of Interest in
Massachusetts in Perspectives of Law, Essays for Austin Wakeman
Scott (1964), p.16.

Moreover, the evidence presented in this case confirms the legal
conclusion that the Town has a direct ad substatial interest. The
documentary evidence ad the testimony in this case demonstrate that
the Saugus Planning Board reviewed the Periwinkle Park plan in
light of its statutory mandate, as well as its rules and
regulations. Among the issues addressed were blasting in the area,
traffic flow, road construction, street lighting, utilities,
removal of trash and snow, and public safety. Mr. Long, Chairinan
of the Board, testified that the Board was sensitive to the
neighbors concerns and that there were certain conditions the Board
wanted included in the plan ad the covenant for the benefit of the
Town. Accordingly, the Commission concludes that the Town's
interest in the subdivision application was direct and substantial,
and that the obligation of the Town in its review of the
application was not ministerial.

2. Agency

The term "agent" is not deemed in G.L. c. 268A, and the
Commission is charged with interpreting the term in light of the
overall remedial purpose and intent of the conflict of interest
law. See, e.g., United State v. Evans, 572 F.2d. 455, 480 (5th Cir.
1978); Everett Town Taxi, Inc. v. Board of Aldermen of Everett,
366 Mass. 534, 536 (1974). Section 17 is premised on the principle
that "public officials should not in general be permitted to step
out of their official roles to assist private entities or persons
in their dealings with government." Perkins, The New Federal
Conflict Law, 76 Harv.L.Rev. 1113,1120(1963). As Buss has noted,
[t]he appearance of potential impropriety is raised - influence
peddling, favoring his private connections and cheating the
government. Whether or not any or all of these evils result,
confidence in government is undermined because the public cannot
be sure that they will not result." Buss, The Massachusetts
conflict of Interest Statute: An Analysis, 45 B.U. L.Rev. 299, 322
(1965). See also, Town of Edgartown v. State Ethics Commission,
391 Mass. 83,88-89 (1984).


In light of the underlying purpose of s.17, the Commission has
adopted the approach of the federal courts which have utilized an
expansive definition of the term "agent" within the federal
counterpart of s.17(c) ad which have stated that the definition is
not limited to its strict common law interpretation. See, In the
Matter of Robert Sullivan, 1987 SEC 312; In the Matter of James M.
Collins, 1985 SEC 228; and United States v. Sweig, 316 F.Supp 1148,
1157 (S.D.N.Y. 1979). In the Matter of Robert P. Sullivan, the
Commission concluded that "the distinguishing factor of acting as
agent within 'the meaning of the conflict law is "acting on behalf
of" some person or entity, a factor present in acting as
spokesperson, negotiating, signing documents ad submitting
applications." Sullivan, supra at 31~315. See also, In the Matter
of James M. Collins, supra at 228, 231; EC-COI-84-116. Thus, the
keystone is that one is acting in a representational capacity.[7]
See, Perkins, The New Conflict of Interest Law, Harv.L Rev. 1113,
1146 (1963). Participation in the form of "merely speaking or
writing on behalf of a non-state party would be acting as agent."
Buss, supra, at 326.

In EC-COI-84-117, the Commission issued an opinion to the
Respondent which concluded that the Periwinkle Field Trust was a
distinct legal entity and that, due to the fiduciary relationship
between the trustee and trust, the Respondent would be acting as

Page 428

the legal representative of the trust in any appearances
before municipal boards. The Commission's conclusion was based upon
the distinguishing legal characteristics of a trust
relationship.[8] Commission now reafirms this opinion. Further,
the evidence in this case does not warrant disregard of the trust
as a separate legal entity.

The Respondent submitted the subdivision application as the
trustee of Periwinkle Field Trust. The September meeting minutes
identify the Respondent as trustee. The applicant and owner of the
property was the trust. The covenant reviewed by the Respondent and
the Board at the October meeting was a covenant between the Town
and the owner/trust.

As trustee, Reynolds owed strict duties of loyalty and good
faith to the trust. A trustee, similar to other fiduciaries, is
prohibited from advancing his own personal or business interests
at the expense of the trust. See, Ball v. Hopkins, 268 Mass.
260,266-269 (1929). Given these fiduciary duties, it cannot be
assumed that the Respondent was advancing his own personal interest
in his discussions with the Board. It can be reasonably inferred
that Respondent was acting on behalf of, and with the knowledge and
consent of, the beneficiaries because if be was not, he would be
in violation of his fiduciary duties. See, In the Matter of Robert
P. Sullivan, supra at 312, 315. The Commission has previously
indicated that "if the conduct of the parties is such that an
inference is warranted that one is acting on behalf of and with
knowledge and consent of another, an agency exists as a matter of
law. In the Matter of Robert P. Sullivan, supra at 315; In the
Matter of Joseph P. Zora, Sr. and Joseph P. Zora, Jr.. 1989 SEC
401; Choates v. Board of Assessors of Boston, 304 Mass. 298, 300
(1939).

Upon reviewing the facts, the Commission concludes that the
Respondent was acting on behalf of Periwinkle Field Trust. The
Commission finds that the Board wanted particular conditions
included in the development plan which resulted in negotiations
between the parties and in which the Respondent actively
participated. The Board sought a commitment from the trust
regarding these conditions which oniy the representative of the
trust was able to do. The record is devoid of evidence that the
Respondent acted other than in a representative capacity or that
the Respondent informed the Board that he was present in his
personal capacity and not as a representative of the applicant
trust. It would reasonably appear to members of the Board that the
Respondent was representing the interests of the trust and had
authority to bind the trust. See, In the Matter of Paul H.
Sullivan, 1988 SEC 340, 343. Further, the covenant ran between the
Town and the trust, not to the Respondent personally. The
subdivision approval was given to the trust, not to the Respondent
personally, as the application was submitted by the trust.

The Respondent argues that he did not intend to be the trust's
representative at the public hearings, but rather, had assigned
this task to his daughter, Jane, in order to comply with the
Commission's opinion in EC-COI-84-117. Although the Respondent's
intention is a mitigating factor for purposes of disposition, it
does not insulate him from liability. The Commission has indicated
that the presence of a recognized spokesperson may dispel the
appearance of agency. In the Matter of Robert P. Sullivan, supra,
n.7. However, the Commission does not find adequate evidence to
support a finding that Jane acted as the representative of the
trust for purposes of the subdivision application. The record does
not indicate that Jane was publicly recognized as the spokesperson
or representative of the trust or that she had authority to make
commitments with the Board. The Commission credits the testimony
of Long, the Chairman of the Planning Board, who stated that he did
not consider Jane to be the representative who could bind the trust
and that, throughout the history of the project, the Respondent had
been the driving force. Further, the evidence does not indicate
that Jane participated in answering the Board's questions or
negotiating conditions in the plan, or that the Respondent deferred
the Board's questions to his daughter. In spite of the
Respondent's good intentions, he exercised poor judgment in his
attempt to comply with the 1984 advisory opinion. The prudent
course for a public official to avoid an appearance of a conflict
of interest under G.L. c. 268A, s.17 is to designate a spokesperson
who has authority to negotiate on behalf of and to bind the trust.
This spokesperson should be publicly recognized so that all parties
are knowledgeable about the status of the designated agent.

Even assuming for the sake of argument that Jane did act as
spokesperson for the trust, the Respondent could also be found to
be acting as an agent for the trust. The Commission has stated
that "[t]he mere presence of a recognized spokesperson, without
more, does not prevent a finding that someone eke is also acting
as agent." In the Matter of Paul H. Sullivan, supra at 344 (citing
2A C).S. Agency s.31(1985) at p. 593). The evidence in this case
demonstrates that it was the Respondent, not Jane, who possessed
the authority to act on behalf of the trust.



Page 429

An additional airmative defense argued by the Respondent is that
even if the Commission finds that he acted on behalf of the trust,
he is exempt by the provisions of s.17, 9. The witness exemption
states that s.17 does not prevent a municipal employee from giving
testimony under oath or making statements required to be made under
penalty for perjury or contempt." The legislative intent underlying
this exemption is to facilitate the administration of justice by
permitting government employees to honor a subpoena and to provide
sworn testimony in judicial proceedings pertaining to claims or
other transactions involving the government. See, Manning, Federal
Conflict of Interest Law, 97 (1964); Buss, suprs at 344. The
Commission has applied this exemption in situations where state
employees are required to provide uncompensated testimony in
lawsuits in which the state is a party. EC-COI-83-69; 83-45;
Braucher, supra at 18-19.

The Commission does not agree with the Respondent that the
Petitioner bears the burden of proof to establish ineligibility for
the witness exemption. The Commission previously determined that
the burden of proof lies with the Respondent claiming the
exemption, not with the Petitioner. In the Matter of Joseph D.
Cellucci, 1988 SEC 346,349. To allocate the burden of proof of
exemption to the Petitioner contradicts the expressed intent of the
original framers of G.L. c. 266A. In its Final Report, the Special
Commission on Code of Ethics explained that the format they had
chosen for the statute "was deliberately designed in order to avoid
the necessity of indictment and proof which must carry the burden
of negating all such possible exceptions and exemptions" and
declared that "[i]t was the judgment of the [Special] Commission
that the burden of proof of an exception or exemption should be on
the public official who claims it." Mass. House Doc. No. 3650,
Final Report of the Massachusetts Special Commission on
Ethics, (April 1962) at 10. Because the Special Commission,
within the context of criminal proceedings, placed the burden of
proof of an exemption on the public official who claims it, we do
not find it unfair to allocate this burden of proof to the public official
during civil proceedings.

The Commission concludes that the Respondent did not plead or
prove his eligibility for the exemption. 930 CMR 1.01(5)(b). The
Respondent raised the exemption issue in his post hearing brief
and at oral argument, after the adjudicatory hearing had ended. He
did not present ay evidence that he either testified under oath,
made statements under the penalty of perjury before the Board, or
was required to provide such testimony. Therefore, the exemption
is not applicable to him.[9]

IV. Conclusion and Sanction

In conclusion, the Commission finds, by a preponderance of the
evidence, that the Respondent violated G.L. c. 266A, s.17(c) on
September 19, 1985 and October 3, 1985 by acting as agent of
Periwinkle Field Trust in connection with the Periwinkle Park
subdivision application which was a particular matter in which the
Town of Saugus was a party and had a direct and substantial
interest.


The Commission may require a violator to pay a civil penalty of
not more than two thousand dollars for each violation of G.L. c.
268A. G.L. c. 268B, s.4(j)(3). Although the potential maximum fine
in this case is $4,000.00, we believe that the imposition of a fine
is not warranted. We find that the Respondent was credible in his
testimony that he had not intended to act as the representative of
the trust but had felt compelled to respond to the Board when he
was addressed by it. The Respondent sought advice regarding the
propriety of representing the trust while he remained a Selectman,
and he made a good faith, albeit ineffectual, attempt to comply
with our opinion in EC-COI-84-117. Further, we note that, in a
recent similar adjudicatory decision constrning G.L. c. 266A, s.17,
we did not impose a fine where one of the mitigating factors was
that the Respondents' actions as agent were on behalf of a
corporation whose owners and officers were all family members. In
the Matter of Joseph Zora, Jr. and Joseph Zora, Sr., 1989 SEC 401.
While the Respondent is not entitled to any s.17 exemptions as a
matter of law, his actions, reviewed in the context of a fiduciary
relationship to a family trust, do not merit the imposition of a
fine.

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

[1] Commissioner Pappalardo resigned from the Commission prior to
the issuance of this Decision and Order, and therefore, is not a
signatory hereto.

[2] The Respondent did not brief these issues, nor did he present
any evidence of bias. The Respondent did not press this argument
in his post hearing brief or at oral argument. The Commission finds
no evidence of bias at any point during the course of these
proceedings.

[3] Section 17 9 states: "This section shall not prevent a
municipal employee from giving testimony under oath or making
statements required to be made under penalty for perjury or
contempt.

Page 430

[4] The Commission notes that, in March, 1983, the Respondent may
have received incomplete oral advice from the Attorney General or
the Legal Division of the Ethics Commission concerning his
representing the trust in a fiduciary capacity before Town boards.
The Commission does not find this advice controlling as the
Respondent had received the formal written opinion of the full
Commission one year prior to the violations in this case. All of
the events which form the basis of the violations in this case
occurred after the date the Commission issued EC-C0I-84-117.

[5] "ParticuIar matter," any judicial or other proceeding,
application, submission, request for a ruring 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 Jo
their governmental organizations, powers, duties, finances and
property.

[6] A full- discussion of -the "direct and substantial interest"
requirement is provided in Section B(1) infra.

[7] The Commission summarized its past precedent regarding the
phrase "acting as agent" in {Commission Advisory No. 13}, dated
January 6, 1988. This Advisory states:

"An agent is one who acts on behalf of another. A municipal
employee acts as agent when he or she appears before or
otherwise communicates with a municipal board or agency on
behalf of another, submits an application, petition or other
documentation for another, or merely attends a municipal meeting
and answers questions for another."

[8] These characteristics are: (1) a trust is a relationship; (2)
it is a relationship of a fiduciary character; (3) it is a
relationship with respect to property, not one involving merely
personal duties; (4) it involves the existence of equitable duties
imposed upon the holder of the title to the property to deal with
it for the benefit of another; and (5) it arises as a result of a
manifestation of an intention to create the relationship. 1 Scott
on Trust, s.2.3 (4th Ed. 1987).

[9] The Respondent does not qualify for any exemption under s.17.
As a Selectman, he is not eligible for special municipal employee
status. G.L. c. 268A, s.1(n). Section 17 also contains an
exemption which permits a municipal employee to act as an agent for
parties with whom he has a fiduciary relationship. However, this
"fiduciary exemption" is only available to appointed officials.
G.L. c. 268A, s.17 7. As an elected official, the Respondent is
ineligible for this exemption.