On April 26, 2011, the parties filed a Joint Motion to Dismiss ("Joint Motion"), along with a proposed Disposition Agreement. The parties requested that the Commission approve the Disposition Agreement in settlement of this matter and dismiss this adjudicatory proceeding. By order of the Commission, the parties subsequently filed a Joint Statement Regarding Proposed Disposition Agreement, explaining the basis of the proposed penalty. The full Commission completed deliberations about the Joint Motion on June 16, 2011.
In the proposed Disposition Agreement, the parties agree to the following findings of fact. Paul Truehart was a member of the Southampton Board of Health from 2008 to 2010. He also does business as Truehart Paving and Construction Services ("Truehart Construction"), a sole proprietorship located in Southampton. He is licensed to install septic systems.
On May 27, 2008, the BOH approved an application and plans for a septic system upgrade at 11 East Street, Southampton. Truehart abstained. The application listed Truehart Construction as performing the septic system work. Truehart, through his sole proprietorship, upgraded the septic system and charged $19,500 for the work. On July 11, 2008, Truehart, as owner of Truehart Construction, signed a Title V Certificate of Compliance Designer and Installer Sign-off form ("Title V Certificate") for the 11 East Street property for submission to the BOH in order to obtain a BOH Certificate of Compliance.
In November, 2007, before Truehart was on the BOH, the BOH approved applications and plans for construction of septic systems at 11 and 17 Riverdale Road Extension, Southampton. Subsequently, the properties were sold, and in 2009, the new owners hired Truehart Construction. At this time, Truehart was a member of the BOH. Through his d/b/a/, Truehart performed site work and installed the septic systems and charged $46,858. Truehart contacted the BOH's Health Agent to inspect his work. On September 28, 2009, as owner of Truehart Construction, Truehart signed the Title V Certification for the properties for submission to the BOH.
In mid-October, 2009, the BOH, through its Health Agent, approved an application and plans for the repair of a septic system at 2 Parsons Way, Southampton, which had failed inspection. Truehart abstained from approving the application and plans. The application listed Truehart Construction as performing the work. Truehart, through his d/b/a, repaired the septic system and charged $2,900 for the work. He contacted the BOH's Health Agent to inspect his work. On October 26, 2009, he signed the Title V Certificate for 2 Parsons Way.
Under G.L. c. 268A, § 17(a), otherwise than as provided by law, a municipal employee may not receive compensation from anyone other than the city or town or municipal agency in relation to a particular matter if the same city or town is a party or has a direct and substantial interest in the matter.
Under G.L. c. 268A, § 17(c), other than in the discharge of his official duties, a municipal employee may not act as agent or attorney for anyone other than the city or town or municipal agency in connection with a particular matter if the same city or town is a party or has a direct or substantial interest in the matter.
The parties agree to conclusions of law in the Disposition Agreement, as follows: The BOH decisions to approve applications and plans for septic system upgrades, repairs or installations were particular matters, as were the Health Agent's inspections of the Riverdale Road Extension construction and Parsons Way repairs. The Town of Southampton had a direct and substantial interest in these particular matters.
The compensation that Truehart requested and received from the owners of 11 East Street, the Riverdale Road Extension properties, and 2 Parsons Way was in relation to these particular matters. Accordingly, Truehart violated § 17(a) by requesting and receiving the compensation.
In addition, Truehart acted as agent for the owners of the properties in connection with these particular matters. He acted as agent for the owners of the Riverdale Road Extension properties and 2 Parsons Way by contacting the BOH's Health Agent to inspect his work. He acted as agent for the owners of all of the properties when he signed Title V Certificates to be submitted to the BOH. By engaging in this conduct, he violated § 17(c).
In the Disposition Agreement, Truehart agrees to pay a civil penalty of $3,000 and has tendered the payment. In addition, Respondent further agrees to waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in the Disposition Agreement in this or any other administrative or judicial proceeding to which the Commission is or may be a party.
In support of the Joint Motion, the parties assert that settlement of this matter will fairly and equitably resolve this matter, obviate the need for a hearing on any factual issues, and save time and resources for everyone involved.
The parties explain in their Joint Statement Regarding Disposition Agreement that although Truehart Construction charged $69,258 for its work on the projects described above, Truehart's gross profits from all of these projects together was approximately $5,000 total. In addition, the Commission takes note that Truehart did not participate as a Board of Health member with regard to applications regarding septic system work to be done by his own company, and thus did not approve applications affecting his own financial interests. He appears to have operated under a misunderstanding that if he did not participate as a Board of Health member in approving these applications, he could do the work. Instead, under § 17, he was prohibited from receiving compensation from, or acting as agent for, his clients in connection with this work, because the Town, through its Board of Health, has a direct and substantial interest in approving such applications and conducting inspections of the work.
WHEREFORE, the Commission hereby ALLOWS the Joint Motion. The Disposition Agreement is APPROVED. Respondent's tendered payment of the $3,000 civil penalty for violating G.L. c. 268A, § 17(a) and (c) is accepted. Commission Adjudicatory Docket No. 10-0025, In the Matter of Paul Truehart, is DISMISSED.
DATE AUTHORIZED: June 16, 2011
DATE ISSUED: June 30 , 2011