In the Matter of Jack Speranza
March 10, 2009
Order Vacating Reasonable Cause Finding and Terminating Adjudicatory Proceeding


Appearances:

Mark Walter, Esq.
Counsel for Petitioner

Peter E. Heppner, Esq.
Counsel for Respondent

Commissioners: Kane, Kempthorne and Veator
Presiding Officer: Commissioner David L. Veator

On June 12, 2007, Petitioner issued an Order to Show Cause ("OTSC") against Respondent Jack Speranza ("Speranza"), a member of the Conservation Commission and the Community Preservation Committee ("CPC") in the Town of Hopkinton ("Town"). The OTSC alleges that on October 5, 2006, Speranza asked the Commission's Legal Division for advice as to whether he could act as a private attorney on behalf of a group of Town residents who wanted to file a suit against the Town regarding the CPC's purchase of a parcel of open space ("Property") and that he was advised that G.L. c. 268A, section 17 prohibited him from so acting.

As set forth in the OTSC, on October 12, 2006, Speranza, acting as a private attorney, filed a Petition Under M.G.L. c. 40, section 53[1/] to Restrain Illegal Appropriations ("Petition") against the Town involving its proposed purchase of the Property and obtained a temporary restraining order ("TRO"). It further alleges that Speranza, on behalf of the petitioners, signed a stipulation agreement regarding the TRO, filed a memorandum in support of continuing the injunction and

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[1/] G.L. c. 40, section 53 provides in relevant part as follows: "If a town ... or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said town . . . for any purpose or object in any manner other than that for and in which such town . . . has the legal and constitutional right and power to raise or expend money or incur obligations, the supreme judicial court or superior court may, upon petition of not less than ten taxable inhabitants of the town . . . determine the same in equity, and may, before the final determination of the cause, restrain the unlawful exercise or abuse of such corporate power."

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signed and filed a stipulation of dismissal. Finally, the OTSC alleges that Speranza repeatedly violated G.L. c. 268A, section 17(c)[2/] by engaging in such conduct. Speranza filed an Answer admitting a number of the factual allegations but denying any violation.

Speranza filed an affidavit with the Commission on November 7, 2007. In
his affidavit, Speranza sets forth detailed information about inter alia, the following: (1) his concern about the value in one appraisal based on an unapproved project; (2) his concern about potential conflict of interest issues involving a fourth appraisal and its discrepancy with three other appraisals; (3) his concern that the Town's proposed purchase as structured would violate G.L. c. 44B, sections 5(b)(3)(f);[3/] (4) his concern about fulfilling the obligations of his oath as a Town employee; and (5) the information he provided and the questions he posed when he called the Commission's Legal Division for advice.

Based on our review of Speranza's affidavit[4/] which provides a fuller factual presentation of the unusual underlying circumstances in this matter, we now find that, had such facts been known to us previously, we would not have found reasonable cause and authorized an adjudicatory proceeding. The facts supporting our finding include the following: Speranza's concerns about the appraisal process; his actions were taken in an effort to protect the public interest in ensuring the Town's compliance with the relevant statutory requirements rather than his own personal or private interests; the efforts Speranza made to comply with the conflict of interest law by seeking advice; the absence of any personal financial gain to him as a result of his representation of the petitioners; and Speranza's reporting of his actions to the Commission. These facts taken together in this unique situation warrant the exercise of our discretion to vacate our prior finding of reasonable cause and authorization of an adjudicatory proceeding.[5/] Accordingly, we hereby vacate the prior finding of reasonable cause and the authorization of adjudicatory proceedings. In doing so, we note that this exercise of our discretion is limited to the peculiar facts of this matter. This adjudicatory proceeding is hereby TERMINATED.

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[2/] Section 17(c) provides that "[n]o municipal employee shall, otherwise
than in the proper discharge of his official duties, act as agent or attorney for anyone other than the city or town or municipal agency in prosecuting any
claim against the same city or town, or as agent or attorney 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."

[3/] Section 5(b)(3)(f) provides in relevant part that "no such real property,
or interest therein, shall be acquired by any city or town for a price exceeding
the value of the property as determined by such city or town through procedures customarily accepted by the appraising profession as valid."

[4/] We have also reviewed the memoranda submitted by the parties relating
to Petitioner's Motion for Summary Decision.

[5/] We note that the Commission's internal Enforcement Procedures
reflect our discretion when making reasonable cause findings. For example, Section 5(E) provides that in lieu of finding reasonable cause, the Commission may authorize the issuance of a confidential compliance letter. A compliance letter may be authorized in situations where there are sufficient facts to warrant finding reasonable cause that a violation of the conflict of interest law has occurred, `but where the violation does not involve either willful misconduct, significant economic advantage, the misuse of influence or confidential information, significant economic loss to the public, or the potential for serious impact on the confidence in its officials, or other reasons deemed appropriate
by the Commission."

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DATE AUTHORIZED: February 20, 2009

DATE ISSUED: March 10, 2009

/s/Matthew N. Kane

/s/Jeanne M. Kempthorne

/s/David L. Veator

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