Docket No. 364

In the Matter of John r. Stone, Jr.

November 22, 1988

Disposition Agreement



This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and John Stone, Jr. (Mr.
Stone) pursuant to section 11 of the Commission's Enforcement
Procedures. This Agreement constitutes a consented to final
Commission order enforceable in the Superior Court pursuant to
G.L. c. 268B, s. 4(j).

Page 387

On April 6, 1987, the Commission initiated a preliminary
inquiry, pursuant to G.L. c. 268B, s.4(a), into possible
violations of the conflict of interest law, G.L. c. 268A,
involving Mr. Stone, a member of the Gill Board of Health. The
Commission concluded its inquiry and, on October 26, 1987, found
reasonable cause to believe that Mr. Stone violated G.L. c. 268A.

The parties now agree to the following findings of fact and
conclusions of law: At all times material herein, Mr. Stone was
a member of the Gill Board of Health. As such, Mr. Stone is a
municipal employee as that term is defined in G.L. c. 268A,
s. 1 (q).

Stone is also a self-employed contractor; and, as such, he
provides a number of different services to private parties such
as interior and exterior work on homes.

On March 24, 1986, the Gill Board of Health received a letter
from Robert P. Bishop, supervising sanitarian for the state
Department of Public Health, in which Bishop stated that his
office had received a complaint about sanitary conditions at 5
Cross Street in Gill (the property).

On April 3, 1986, Mr. Stone, Bishop id another Gill Board of
Health member inspected the property. There appeared to be
multiple violations of the sanitary code.

Mr. Stone sent a letter dated April 9.1986 to the owner of the
property. The letter set out the violations and stated that the
building was condemned.

In September, 1986, the local realtor for the property
contacted Mr. Stone. The realtor asked Mr. Stone to make the
necessary repairs to the building.

Subsequent to being retained by the realtor, but before
beginning repairs, Mr. Stone met with Selectwoman Geraldine
Johnson to ask if he would have any problems when he did the work
on the property. Ms. Johnson told Mr. Stone that she did not see
any problem with his performing the work as long as be was not
involved with the reinspection of the property or the lifting of
the condemnation order.

Shortly thereafter Mr. Stone began renovating the property. He
did sheetrocking, painting, wallpapering and other renovations on
the interior which took care of the problems listed on the Board
of Health condemnation order.

Mr. Stone received approximately $3,500 as payment for his
work on the property.

On March 9, 1987, with work on the house completed, the Gill
Board of Health issued a certificate of habitation for the
property. Two members of the Board of Health other than Mr. Stone
participated in the reinspection of the property.

General Laws c. 268A, s. 17(a) prohibits a municipal employee,
otherwise than as provided by for the proper discharge of
official duties, from directly or indirectly receiving or
requesting compensation from anyone other than the town in
relation to any particular matter in which the same town is a
party or has a direct and substantial interest.

12. Both the condemnation order and the reinspection are
particular matters for purposes of the conflict of interest law.

13. In light of the town's extensive regulation of local health
matters, any work done pursuant to a condemnation order and/or in
anticipation of a subsequent reinspection is work done "in
relation to" matters of interest to the town.[1]

14. The $3,500 Mr. Stone received for doing the repairs was not
received in the course of his discharging any official duties.

15. By receiving $3,500 for work done to make repairs on the
property, Mr. Stone received compensation from someone other than
his town in relation to both the condemnation order and the
subsequent reinspection, thereby violating G.L. c. 268A, s.
17(a).

16. The Commission is unaware of any evidence to indicate that
Mr. Stone knew he was violating s. 17(a) when he acted as
described above.[2] In addition, the Commission has given
consideration to the fact that Mr. Stone showed sensitivity to
the conflict issue by obtaining advice in advance from a
Selectman. Mr. Stone cannot rely on such advice as a defense,
however.[3] In order to protect himself from the risk that his
own or others' analysis of the situation was incorrect, Mr. Stone
was entitled to seek a written opinion from the Commission. Such
an opinion, sought in advance and based on an accurate
representation of the material facts, would provide a complete
defense against an alleged violation of the conflict of interest
law.[4]

Based on the foregoing facts, 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 agreed to by Mr. Stone:

1. that he pay to the Commission the amount of two hundred
fifty dollars ($250.00)[5] as a civil penalty for his violation
of s. 17(a); and

2. that he waive all rights to contest the findings of fact,
conclusions of law and terms and conditions proposed under this
Agreement in this or any related administrative or judicial civil
proceeding in which the Commission is a party.
_______________

[1] See EC-COI-87-31

[2] Ignorance of the law is no defense to a violation of G.L.
268A In the Matter of Joseph Doyle, 1980 SEC 11, 13 See also,
Scola v. Scola, 318 Mass. 1, 7 (1945).

[3] See In the Matter of John J. Hanlon, 1986 SEC 253, 255.

[4] Mr. Stone could also have sought a written opinion from Town
Counsel. Such an opinion, once reviewed and concurred with by the

Page 388

Commission pursuant to 930 CMR 1.03. would also have provided a
complete defense.

[5] But for the mitigating factors described above, the
Commission would have insisted on a higher fine. The Commission
may impose a fine up to $2,000 for each violation.