Docket No. 319
In the Matter of Paul H. Sullivan
May 19, 1988
Decision and Order
Robert A, Levite, Esq.
Counsel for Petitioner
John H. Cuhna, Jr., Esq.
Kevin C. Sullivan, Esq.
Counsel for Respondent
Diver, Ch., Basile, Epps, Jarvis
I. Procedural History
The Petitioner initiated these adjudicatory proceedings on
December 8, 1986 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 Respondent Paul H. Sullivan had violated
G.L. c. 268A, s.17(c) and s.19. Specifically, Respondent allegedly
acted as agent for either FIC Carter and Sons or FIC Associates by
personally appearing before the Tewksbury Planning Board (Board)
on September 24 and 26, 1984, and by discussing particular matters
in which the Town of Tewksbury (Town) was a party or had a direct
and substantial interest. Further, the Order alleged that
Respondent participated during the Board of Selectmen meeting on
September 25, 1984 in discussions concerning the water and sewer
availability for the Carter Green Condominiums (Carter Green) in
which Respondent's father, Kevin Sullivan, had a financial
The parties stipulated to a number of facts and documents which
are included in the record. In addition to the stipulation of
facts, an adjudicatory hearing was held on September 25, 1987.
Respondent was the only witness to testity at the adjudicatory
Respondent has raised two procedural defenses. The first is that
Petitioner's action is barred by a two year statute of limitations
contained in G.L. c. 260, s.5. The other procedural defense is that
Commission's failure to extend the preliminary inquiry within
ninety days of the initiation of the preliminary inquiry entitles
Respondent to an Order of Dismissal.
The parties filed briefs and presented oral arguments before the
Commission on April 13, 1988. In rendering the Decision and Order,
the Commission has considered the evidence and arguments of the
II. Findings of Fact
1. Respondent, at all relevant times, served as a member of the
Tewksbury Board of Selectrnen. In 1983 and 1984, he was Chairman
of the Board of Selectmen.
2. Respondent, at all relevant times, worked for his father's
real estate agency. Respondent's father is Kevin Sullivan and the
name ofthe real estate agency is Sullivan Real Estate.
3. The Carter Green condominium development was being developed
by FIC Associates, a partnership. The development required a
special permit by the Planning Board. In order for the Planning
Board to approve FIC Associates application for a special permit,
the Board required final assurance from the Department of Public
Works (DPW) that Carter Green had adequate water and sewer
4. In June 1984 Kevin Sullivan, at the request of the Board,
sought a letter from the DPW certifying that there were adequate
water and sewer hookups available for
5. The DPW superintendent issues certification letters
certifying that there are adequate water and sewer hookups
available at development sites, which letters are then subject to
approval by the Selectmen who also serve as Commissioners of the
DPW. On August 21, 1984, the DPW issued a letter certifying that
adequate water and sewer hookups were available for Carter Green.
This letter is a standard letter given to developers during the
approval stage ofa project.
6. On September 24, 1984 Respondent and John B. Hodges were
present at a meeting ofthe Planning Board. Mr. Hodges is an
attorney in private practice who, on previous occasions, has
represented Carter Green. Mr. Hodges did not request Respondent to
accompanying him to the Planning Board meeting for any specific
purpose except that they were going out afterwards socially.
Respondent was not given explicit authority to speak on behalf of
FIC Associates at this meeting.
7. At the September 24, 1984 meeting, the suhstance of the DPW
letter referred to in finding of fact s.4 and Carter Green were
subjects ofthe discussion, Toward the end of the meeting Respondent
asked the Manning Board whether "we" could expect to be on the
agenda for the meeting two days later on Wednesday. Respondent
stated "we'll expect that Wednesday we'll be here for a meeting".
Respondent further stated that "we are just looking and you people
are satisfied that we have complied and you people have stated that
you are". The "we have complied" refers to the requirements set
forth by the Planning Board regarding water and sewer requirements
for Carter Green. Respondent further asked the Planning Board
whether they had everything they needed from FIC Associates or from
Jack Hodges. The "we" that Respondent was referring to was the
development entity, Carter Green, or FlC Associates.
8. Jack Hodges did not address the Board relative to Carter
Green or respond to questions at the September 24, 1984 meeting.
9. Respondent did not attend the September 24, 1984 Planning
Board meeting as a member of the Board of Selectmen, The purpose
of his comments was to ascertain whether the Planning Board would
give a decision on that evening as to whether the requirements in
connection with the application for a special permit had been
10. Respondent spoke at the September 24, 1984 meeting on behalf
of FIC Associates.
11. The discussion between Respondent and the Planning Board at
the September 24, 1984 meeting was in connection with requirements
set forth by the Planning Board regarding water and sewer
availability for Carter Green. These requirements in turn were in
connection with an application for special permit by FIC
12. The discussion of Carter Green and water and sewer
requirements were continued to a scheduled meeting of September
13. On September 25, 1984 Respondent attended a regularly
scheduled Board of Selectmen meeting. Respondent was sitting as a
Selectman that evening. Respondent requested that the Board forward
a letter to the Planning Board relative to FIC Associates.
14. At the September 25, 1984 meeting the Board of Selectman
unanimously voted, with Respondent abstaining, to forward
correspondence to the Planning Board confirming that FIC
Associates, developers of Carter Green, had access to and would be
allowed to tie in to the municipal Main Street sewer system,
and that upon completion and acceptance of the plans by the DPW
Commissioners, work would commence.
15. On the same evening, the Board of Selectmen went into
executive session. After the executive session had ended,
Respondent was asked by another Selectman whether he had the DPW
letter certifying the availability of water and sewer with him.
Respondent stated that he did not have the letter with him, having
no reason to have it, but would bring it in the following day. The
letter was correspondence dated August 21, 1984, signed by Philip
Pattison, the Superintendent of Public Works, relative to the
availability of water and sewer to Carter Green. Respondent also
requested that the Board agree with the correspondence contingent
upon production ofthe letter to the Board the following day. The
Board informally agreed to this. No vote was recorded.
16. Respondent's suggestion that the Board of Selectmen agree
with the correspondence contingent upon production ofthe letter to
the Board on the following day was included in the minutes at the
suggestion of Respondent. He was concerned about possible
violations of the Open Meeting Law. He intended to avoid the Board
of Selectmen voting on a decision at a time when they were not
permitted to conduct public business under the Open Meeting Law.
17. Respondent subsequently delivered the letter to the Board
of Selectmen, pursuant to s.15.
18. On September 26, 1984, Respondent attended a scheduled
Planning Board meeting. At that meeting the Planning Board
continued a discussion from September 24, 1984, regarding Carter
Green and the availability of adequate water and sewage.
19. Present at the September 26 meeting was Kevin Sullivan,
Respondent's father. Kevin Sullivan had a financial interest in FIC
Associates, and had represented FIC Associates in the past.
20. Respondent accompanied his father to the meeting after
encountering him outside Respondent's home which was adjacent to
his father's office. At the meeting Respondent submitted and the
Planning Board reviewed two letters from the Board of Selectmen
dated September 26, 1984 regarding water and sewer availability for
Carter Green. The substance of one letter was that
the Board of Selectmen had voted at its meeting of September 25,
1984 to concur with the correspondence dated September 21, 1984
signed by Philip Pattison, Superintendent of Public Works, relative
to the availability of water, The second letter stated that the
Board of Selectmen, at its meeting of September 25, 1984, had voted
to concur that the developers of Carter Green had access and would
be allowed to tie into the municipal main street sewer system.
During the meeting, Respondent submitted a sketch showing the
sewer route from Carter Green and pointed on the sketch to the
proposed route. Respondent also stated that the sewer route had
been approved by the Board of Selectmen. At the same meeting
Respondent also stated that the building inspector, in order to
issue building permits, would like a letter from the Planning
Board, saying that "we have complied with the conditions" listed
in the building inspector's letter to the Planning Board.
21. Respondent spoke at the Planning Board meeting of
September 26, 1984 on behalf of FlC Associates.
22. No Vote was taken at the September 26, 1984 meeting. The
matter was continued to a later meeting.
23. Respondent had knowledge that Kevin Sullivan had a
financial interest in the decision by the Tewksbury Planning
Board regarding adequate availability of water and sewer at
A. Statute of limitations
The Commission has promulgated a three-year statute of
limitations pursuant to its regulatory authority. G.L. c. 268B,
s.3(a); 930 CMR 1.02(10).
There is no dispute that the Order to Show Cause was issued
within three years after the violations alleged therein, as
required by the regulation. Nor does Respondent allege as a
defense that the three year statute of limitations promulgated in
930 CMR 1.02(10) has run. Therefore, there was no need for
Petitioner to show that a disinterested person learned of the
violation no more than three years before the Order was issued by
affidavit or otherwise. See, 930 CMR 1.02(10) (c).
Respondent argues that 930 CMR 1.02(10) is unlawful because it
is inconsistent with G.L. c. 260, s.5, which establishes a two
year statute of limitations in actions for penalties under penal
statutes if the penalty "is given ... to the Commonwealth." The
Commission concludes that this statute does not apply because an
enforcement procceeding pursuant to G.L. c. 268B, s.4 is not
reasonably construed as enforcement of a penal statute.
The essence of a civil enforcement action under G.L.c. 268B is
a breach of official duty or fiduciary obligation of a public
employee. In upholding the use ofa civil standard of proof, and
rejecting the application of a criminal standard in Commission
proceedings, the Supreme Judicial Court has held, "The sanctions
which the Commission may impose do not implicate particularly
important individual interests or rights." Craven v. State Ethics
Commission, 390 Mass. 191,200(1984). The controlling purpose of
an adjudicatory proceeding under G.L.c. 268B, s.4 is not
punishment. The Commission's mandate is remedial in nature, to
enforce civilly the provisions of G.L. c. 268A, to provide advice
and education, (see, G.L.c. 268B, s.3(g)), and to act as a
respository of disclosures and other information. See, c. 268A,
s.6, s.7(d). Although G.L. c. 268A provides for a criminal
penalty enforceable by criminal law enforcement agencies, as well
as civil relief, the existence of an alternate criminal penalty
does not defeat the broad civil remedial purposes given to the
Commission in G.L. c. 268B. The fact that the Commission may
potentially impose a civil fine after an adjudicatory hearing
does not render the proceeding penal. The Commission's
regulation, establishing a three year statute of limitations,
reasonably rejects the application of G.L. c. 260, s.5 to a civil
administrative agency which has no criminal enforcement
The reasonableness of the regulation is further supported by
examination of precedents. The Supreme Judicial Court held in the
case of Bemecke v. Nantucket, 379 Mass. 345(1979) that the
essence of an action under G.L. c. 268A, s.21 is a breach of
official duty which sounds in tort, and therefore the three year
statute of limitations applies.
A regulation by a duly constituted administrative agency has
the full force and effect of law and is entilled to all rational
presumption in favor of its validity..." levy v. Board of
Registration, 373 Mass. 519,525(1979) cited in Borden v.
Commisioner of Public Health, 388 Mass, 707(1984). Given the
broad civil remedial nature of an enforcement proceeding under
G.L.c. 268B, s.4 and relevant prior case law, there is no
inconsistency between 930 CMR 1.02(10) and G.L.c. 260, s.5 so as
to render the regulation void.
B. The Seven Day Delay
There is no merit to Respondent's contention that the delay in
the vote to extend the preliminary inquiry, which took place 97
days after the initial vote to initiate the preliminary inquiry,
requires dismissal of the case. Dismissal is not required as a
matter of law because the 90 day rule derives from internal
enforcement policy, and not by statute, regulation or other
authority having the force of law; therefore, the policy is not
It is well established that "a statute imperative in phrase...
where it relates only to the time of performance ofa duty by a
public officer and does not go to the essence of the thing to be
done ... is only a regulation for the orderly and convenient
conduct of public business and
not a condition precedent to the validity of the act done."
Chencey v. Coughlin, 201 Mass. 204,211 (1909).Accord, Cullen v.
Building Inspector of North Attleborough, 353 Mass. 671, 679-680
(1968) (decision of appeal from issuance of a building permit
filed five days late);Monico's Case, 350 Mass. 183,185186(1966)
(decision of Industrial Accident Board filed over 10 months
late);Amherst-Pelham Regional School Committee v. Department of
Education, 376 Mass. 480, 496-497 (1978) (failure of Department
of Education to issue timely decision in contravention of own
Even assuming that Respondent has suffered expense,
humiliation, anxiety and public suspicion as a result of
Petitioner's proceedings, there has been no showing that
Respondent suffered prejudice as a result of the seven day delay
in initiating the preliminary inquiry. This case is thus
indistinguishable from the case of In the, Matter of Thomas W.
Wharton, 1984 Ethics Commission 182, where we held
The 90-day rule is not based on any statute, but reflects
the Commission's desire that inquiries be conducted as
expeditiously as possible. Its principle purpose is to make
the Commission aware of the length of inquiries and to
require its acquiescence for them to go beyond 90 days. That
purpose is satisfied whether the extension is granted before
or after the initial 90-day period ends. With respect to the
time period after the finding of reasonable cause, it should
be noted that neither the provisions of c. 268B dealing with
investigations (see s.4) nor the Commission's procedures
impose any requirement as to when the Order to Show Cause
must issue. Here again, there is no showing that Mr. Wharton
was prejudiced or that the Petitioner gained any undue
advantage by the delay ... Accordingly, this Motion to
Dismiss is denied.
Accordingly, the seven-day delay in extending the preliminary
inquiry does not require dismissal.
C. Substantive Violations
1. Section 17(c)
The portion of s.17(c) applicable to this case states 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 matterin which the same town is a party or
has a direct and substantial interest. Respondent has stipulated
to all the elements of a s.17(c) violation, except the element of
acting as agent.
The basic principle set forth by s.17(c) is that public
officials should not in general be permitted to step out of their
official rules to assist private entities or persons in their
dealings with government." Perkins, The New Federal Conflict Law,
76 Harv. L. Rev. 113,1120(1963). Regardless of whether any evil
results from the conduct, "confidence in government is undermined
because the public cannot be sure that no [evils] will result."
Buss, The Massachusetts Conflict of Interest Statute:An Analysis,
45 B.U.L. Rev. 299,322 (1965). Buss suggests that "merely
speaking or writing on behalf of a non-state party would be
acting as agent." Buss, supra, at 326. Consistent with the above
remedial purpose, the Commission has 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 and submitting applications. EC-COI-84-116.
Upon reviewing the facts, the Commission concludes Respondent
was acting on behalf of FIC Associates. Repondent's consistent
use ofthe term "we" in his discussions with the Board
demonstrates that he was not speaking on his own behalf at the
September 24th or 26th meeting of the Board. He had no interest
in FIC Associates nor had he received any benefits from that
entity. Logically, ifRespondent was not speaking for himself, he
must have been speaking for DC Associates. There is no evidence
that the Respondent was aCting on behalfofhis own interest, as
opposed to the interest of FIC Associates. In fact, Respondent
denied that he had any present or future interest in Carter Green
on the applicable dates. The Planning Board required some
evidence that there was adequate water and sewer availability at
the projects. That requirement was placed on FIC Associates and
not the Respondent.
Respondent's primary defense, as advanced in oral argument,
was that Respondent was not given explicit authority by his
father to speak on behalf of FIC Associates, nor was Respondent
subject to the "direction and control" of FIC Associates at the
September 24th and 26th meetings. The defense has no merit. If
the conduct of the party 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, irrespective of the
party's [scope] of actual authority. Choates v. Board of
Assessors of Boston, 304 Mass, 298,300 (1939), In this case,
Respondent spoke on behalf of FIC Associates and thus it would
reasonably appear to members of the Planning Board that he had
authority to further the interests of his father or his father's
partnership. This is especially true given that Respondent worked
for his father's real estate business.
Respondent argues that the presence of a recognized
spokesperson, Jack Hodges, negates agency. The existence of a
recognized spokesperson might negate a finding that someone other
than the spokesperson is an agent. In the Robert Sullivan
Decision and Order, the Commission stated "the presence of a
recognized spoken person for the corporation, other than
Respondent, such as an attorney might dispel the appearance ofan
agency (at footnote 7, p.20). This assumes, of course, that the
spokesperson participates in the discussion in some way. In this
case Jack Hodges remained silent. Furthermore, just as a company
can have more than one employee, or hire more than one
independent contractor, it can have more than one agent. 2A
C.J.S. Agency, s.31(1985), at p. 593. The mere presence of a
recognized spokesperson, without more, does not prevent a finding
that someone else is also acting as agent.
In conclusion, the preponderance of evidence is that
Respondent was speaking on behalf of FIC Associates at the
September 24th and 26th meetings. Speaking on behalf of another
entity constitutes acting as agent within the meaning of
2. Section 19
Section 19 of the conflict law prohibits a municipal employee
from participating as such an employee in a particular matter in
which to his knowledge his family member has a financial
interest. Participate is defined in s.1 (j) as to participate in
a particular matter "personally and substanfially." Although
there is no doubt that Respondent participated in the discussion
to forward the ceriification letter to the Planning Board, the
Commission concludes his participation was not substantial.
Not all participation by a municipal employee will be deemed
personal and substantial. In the Matter of John Hickey, 1983 SEC
158,159 the Commission stated:
[N]ot every action by a public official satisfies the
substantiality requirement. In those instances where a
government employee is involved in ministerial activity not
directly affecting a particular matter, the conduct may not
constitute substantial participation as defined in the
There are certain terms by which the Commission has described
non-substantial participation. These terms are ministerial, pro
forma, preliminary, after the fact, or not part of or integral to
a decision-making process. See, e.g. EC-COI-82-46 (the filing of
an appearance by an attorney is not personal and substantial
involvement); EC-COI-82-138 (submission of a non-binding list of
qualified contractors, absent any order or indication of
preference, to someone other than the ultimate decision-maker
does not constitute participation in the contract award); EC-COI-
82-82 (providing general information to decision-makers may not
constitute participation in the decision; "your role was more in
the nature of providing information than decision-making, and
somewhat peripheral to the decision-making process"); EC-COI-82-
62 ("[e]diting alone [of a procedural order] does not constitute
participation"); and EC-COI-82-58 (explanation of agency
regulations in connection with a licensing determination does not
constitute participation in that determination).
In the Matter of John Hickey, 1983 SEC 158, the Commission
found the Respondent not to have participated "personally and
substantially." The Commission stated that as a selectman,
Hickey's announcement of a board of selectmen vote "was
ministerial and after the fact." Id. The Commission went on to
state that Hickey's presiding over the board of selectmen's
meeting was also not substantial. The Commission characterized
his presiding as "pro forma."Id. The Commission distinguished
Graham v. McGrail, supra, on the grounds that the presiding in
McGrail was more significant:
At a subsequent meeting where the opponents to the budget
were absent, the abstaining member and the other member
alternated disqualifying themselves from the actual vote but
presiding [sic] over the process until a budget reflecting
salary increases to their family members was passed.
Presiding over the vote was the mechanism used to ensure
completion of the budget process at a time when those who
contested the budget were absent. Id. n. 9.
A majority vote of a qualified quorum was necessary to approve
the items. Apparently a quorum required three members present,
and Hickey's presence was not necessary to the result.
The Hickey case can be contrasted with a recent case, In the
Matter of James Geary, 1987 SEC October 6, 1987, Adjudicatory
Docket No. 323, at 5. In Geary, the subject voted for his
brother's appointment as police chief and signed his contract.
His participation was not determinative because his brother had
the unanimous support of the other members of the board of
selectmen. The Commission concluded that:
By voting for his brother's appointment and signing his
brother's contract, Mr. Geary's participation was "more than
a casual or incidentai encounter" but involved a "decision-
making role." Buss, The Massachusetts Conflict of Interest
Statute, Analysis, 45 B.U.L. Rev. 299,335 (1965).
Applying the above precedent to the facts, the Commission
concludes that Respondent's participation was not substantial.
Respondent requested the Board of Selectmen to forward a letter
to the Planning Board relative to FIC Associates. Forwarding the
letter is best described as ministerial the physical act of
forwarding. The letter would have been forwarded in any event. At
best the request was superfluous. These facts do not, by
themselves, rise to the level by "substantial participation." The
participation was ministerial and after the fact and, therefore,
With respect to the events that occurred after the Board came
out of executive session, Respondent was drawn into the
conversation by other Board members who carried on public
business after the termination of an executive session meeting.
The other Board members had previously voted to forward the DPW
letter to the Planning Board. Therefore, as a practical matter,
necessary for the Board to obtain possession of that letter and
to accomplish this the Board members requested Respondent to play
a role of messenger. Therefore, Respondent's statement that he
did not have the letter with him, but would bring it in the next
day, after the executive session had terminated, cannot be deemed
to be participation in an official capacity.
Respondent's later comment, however, requesting that the Board
of Selectmen agree with the DPW Superintendent's letter
contingent upon his producing it the next day is more
problematic. Although no formal vote was taken, the Board
decided that it would agree with the letter contingent upon
seeing it. Since the Board of Selectmen had already voted to
forward its consent to the Planning Board, it is unclear why the
Respondent asked the Board to agree to the correspondence
contingent upon seeing the letter. It appears Respondent was
undertaking to assure that the Board of Selectmen would forward
the correspondence to the Planning Board. Not only was the
discussion and decision informal, it was also superfluous. As
noted in Geary, infra, the Commission has previously drawn a line
between casual or incidental encounters and involvement in the
decision-making role. Although a close question, Respondent's
participation here appears to be casual discussion.
Petitioner argues that the communication was substantial by
inferring that there was some question whether the correspondence
was actually going to be sent to the Planning Board pursuant to
the earlier discussion. Petitioner's inference however is not
supported by any evidence in the record and in any event is not
persuasive. Therefore, the Commission finds there is insufficient
evidence in the record to find that the communication was
substantial within the meaning of s.1 (j) of the conflict law.
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 $2,000, the Commission believes that the
imposition of the maximum fine is not warranted. Respondent made
an effort to comply with G.L. c. 268A by not participating as a
member of the Board of Selectmen in particular matters in which
his father had a financial interest. See G.L. c. 268A, s.19.
There is insufficient evidence for the Commission to assume that
Respondent's participation had any determinative effect on the
outcome of decisions made by the Board of Selectmen acting as the
Department of Public Works, whereby they determined there "was
adequate water and sewerage for Carter Green. Finally, there was
no effort by Respondent to conceal his particpation; Respondent
on one occasion made his participation a matter of public record
in an effort to comply with the Open Meeting Law.
The violation in this case, on the other hand, cannot be
viewed as technical. Forwarding of the letter was a necessary
precondition to the granting of a subdivision. Expediting the
forwarding of that letter was, therefore, of advantage to
Respondent's father even if there was no controversy over its
contents. As As Chairman of the Board of Selectmen,
Respondent was in a position to exert consciously or
unconsciously undue influence upon the actions of the Planning
Board. The public could reasonably ask how members of the
Planning Board could make an objective unbiased decision when a
request for action was made by the chairman of the Town's
governing body. Moreover, there is no evidence Respondent
sought advice as to the propriety of his actions prior to
engaging in what an ordinary person would understand to be
In conclusion, Respondent sought to intervene himself on
behalf of a private development effort in which his immediate
family had a financial interest. Seeking to expedite a
determination which is critical to a private development is not
inconsequential. A fine reflecting this fact is appropriate.
On the basis of the foregoing pursuant to its authority under
G.L. c. 268B, s.4, the Commission orders Mr. Sullivan to pay five
hundred dollars ($500.00) to the Commission as a civil penalty
for violation of G.L. c. 268A, s.17(c).
 Specifically, on June 10, 1986, the Commission voted to
initiate a preliminary inquiry into whether Respondent violated
17. On September 15, 1986, the Commission voted to extend the
preliminary inquiry. Therefore, the vote to extend took place 97
days after the initial vote to initiate the preliminary inquiry.
 Kevin C. Sullivan told the Planning Board at the September
26, 1984 meeting that FIC Associates, a partnership, was
developing Carter Green. The deed assigning ownership to FIC
Associates, a partnership. from FIC Carter and Sons was not
recorded until September 25, 1985. Both FIC Carter and Sons,
which was the property holder in September, 1984 and FIC
Associates, a partnership, were composed of the same three
individuals: Kevin Sullivan, D. Harold Sullivan, and Costa
The Order to Show Cause refers to the entity other than the
Town of Tewksbury as FIC Carter and Sons, rather than FIC
Associates. The Order constituted sufficient notice to Respondent
of the substance of the allegations. Respondent makes no claim of
prejudice. Petitioner moved in his brief to amend the Order to
reflect the correct name of the development entity. The motion is
 Robert P. Sullivan, the brother of Kevin Sullivan and
Respondent in the case of in the Matter of Robert P. Sullivan,
Docket No. 320 (October, 1987) was a member of the Planning Board
at the time, but had stepped down from the Planning Board for the
 Respondent had previously excused himself from participation
and discussion of the availability of water and sewer hookups at
past Board of Selectmen meetings.
 The Board did not state that it would be returning to any
public session. This is a requirement of the Open Meeting Law if
the Board were to return to public session. G.L c. 39, s.24B.
 There is no record of what transpired after the September 26,
 Statute of Limitations: (a) An Order to Show Cause must be
issued within three (3) years after a disinterested person
learned of the violation (b) A respondent must set forth a
affirmitively a statute of limitations defense
(c) when a statute of limitations defense has been asserted, the
petitioner will have the burden of showing that a disinterested
person learned of the violation no more than three (3) years before
the Order was issued. That burden will be satisfied by 1. an
affidavit from the investigator currently responsible for the case
stating that the Enforcement Division's complaint files have been
reviewed and no complaint relating to the violation "'as received
more than three (3) years before the Order was issued, and 2. with
respect to any violation of c. 268A other than 23, affidavits from
the Department of the Attorney General and the appropriate office
of the District Attorney that, respectively. each office has
reviewed its files and no complaint relating to the violation was
received more than three (3) years before the Order was issued.
 Even in the absence of a duly promulgated regulation, the use
of a three year statute of limitations codified in G.L.c. 260,2A
would be appropriate to this case. Prior to the promulgation of 930
CMR 1.02(10) the Commission decided in its case law on a three
year Statute of limitations. The essence of allegations of violations
of 17 or 19 is that Respondent violated his duty to the public,
which sounds in tort See In the Matter of John P. Saccone, 1982
Ethics Commission 87; Saccone v. State Ethics Commission, 395 Mass.
326 (1985)(reversed on other grounds).
 This claim was made by Respondent's attorney. although there
is nothing in the record to support it.
 Respondent's argument that the doctrine of strict construction
requires proof of actual authority and actual direction and control
by a principal is not persuasive. The doctrine of strict
construction does not apply to a civil administrative agency
interpreting a remedial statute See, Robert J. Quinn v. State
Ethics Commission, 401 Mass. 210, footnote 10 (1987).
 The Commission has recently sumarized in its past precedent
regarding the phrase 'acting as agent' in Commission Adsory #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 comunicates with a municipal board or agency on
behalf of another, submits an application, petition or other
docmentation for another, or merely attends a municipal
meeting and answers questions for another.
 The letter was a correspondence signed by Philip Pattison,
dated August 21, 1984, relative to the availability of water and
sewer for Garter Green.
 Respondent's counsel, Kevin Sullivan, represented at oral
argument that there was no controversy concerning the adequary of
water and sewer for the development. There is nothing in the record
which supports or negates this representation.
 Although planning board members are elected, they would not
be immune from potential political pressure from the board of
selectmen (e.g., budget determinations).