Docket No.: 314


IN THE MATTER OF ERLAND S. TOWNSEND,JR.


Date: November 13, 1986



DISPOSITION AGREEMENT


This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Erland S. Townsend,Jr.
(Mr. Townsend) 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).

On April 2,1985, 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. Townsend, the
co-chairman of the Swampscott Conservation Commission. The
Commission concluded that preliminary inquiry, and, on May 14,
1985, found reasonable cause to believe that Mr. Townsend violated
G.L. c. 268A.

This matter was suspended by the Commission as a result of the
July 9, 1985 decision of the Supreme Judicial Court in Saccone v.
State Ethics Commission, 395 Mass. 326 . Legislation restoring the
Commission's full enforcement powers over all violations of G.L.
c. 268A went into effect on April 8,1986.

The parties now agree to the following findings of fact and
conclusions of law:

1. Mr. Townsend became a member of the Swampscott Conservation
Commission on October 17,1983. All members of the Conservation
Commission were previously classified as special municipal
employees pursuant to G.L. c. 268A, s.1(n).

2. The chairman of the Conservation Commission, Esther Ewing,
now deceased, had requested Mr. Townsend to become a member because
of his expertise. On March 27, 1985, when first contacted by the
Commission, Mr. Townsend resigned as a member of the Conservation
Commission.

3. At all times relevant hereto, Mr. Townsend was also an
engineer engaged in a private consulting engineer practice with T&M
Engineering, Inc., in Salem.

4. On October 18,1983, T&M Engineering, Inc., through Mr.
Townsend's partner, submitted a proposal to Charing Cross
Corporation, which was accepted on October 28,1983, whereby T&M
Engineering, Inc. was to be site engineer for a condominium project
to be developed by Charing Cross in Swampscott called "The Glen."

5. In April, 1984, Mr. Townsend, as the site engineer, prepared
an environmental impact statement (EIS) for Charing Cross for "The
Glen." As required by local rules, Mr. Townsend, as site engineer,
co-signed the cover letter submitting the EIS to the Swampscott
Zoning Board of Appeals, with informational copies to the
Conservation Commission, the Board of Health and other boards and
commissions in the town of Swampscott.

Page 277

6. Mr. Townsend was elected co-chairman of the Swampscott
Conservation Commission on May 22, 1984. The minutes of that
meeting indicate that Mr. Townsend agreed to serve "as long as it
was understood that he would step down when his firm, T&M
Engineering Assoc., Inc., has work before the Commission."

7. At a meeting on June 28, 1984, the Conservation Commission
discussed the EIS regarding "The Glen." The minutes of this meeting
state that Mr. Townsend did not enter into the discussion because
he was the site engineer for the project. He disqualified himself
and left the table. Mr. Townsend's co-chairman objected to parts
of the proposed plans for "The Glen," and it was decided that she
would write to the Board of Appeals on behalf of the Conservation
Commission to voice the objections. This letter is date July 10,1984
and raises three areas of concern: (1) drainage problems; (2)
landscaping; and (3) the sewage system. The Conservation Commission
sent a copy of the July 10, 1984 letter to the Board of Health.

8. On July 12,1984, Mr. Townsend wrote as site engineer for "The
Glen" to the Swampscott Board of Public Works, regarding the
concerns raised in the Conservation Commission's July 10, 1984
letter to the Board of Appeals as to the capacity of the town's
sewer system and waste water treatment facility to handle the
proposed new construction. He sent a copy of his July 12,1984
letter to the Conservation Commission as well as to the Board of
Appeals and the Board of Health. In this letter Mr. Townsend gave
his professional opinion that the 60 new units would have "minimal"
impact on the town's systems. At the Board of Public Works meeting
in late July, the Board considered Mr. Townsend's letter and
decided that estimated maximum daily sewage flow from the project
would not unduly impact the system.

9. At a July 17,1984 Board of Health meeting, at which Martin
Goldman, attorney for "The Glen" developers, made a presentation,
Mr. Townsend answered questions as site engineer for "The Glen,"
assuring the Board of Health that the drainage system (one of the
items questioned in the Conservation Commission's July 10,1984
letter) would be installed to the satisfaction of the Board of
Health. By letter dated the same day, the Board of Health withdrew
its objections to "The Glen," which had been raised in a July 5,
1984 letter to the Board of Appeals.

10. At the July 24,1984 Conservation Commission meeting, in
response to a question from co-chairman Ewing, Mr. Townsend spoke
(as the site engineer for "The Glen," according to the minutes),
expressing his displeasure with the Commission's July 10,1984
"emotional" letter to the Board of Appeals, especially the
objections regarding increase in sewage.

11. Mr. Townsend as site engineer prepared and signed (as
required by local rules) a Request for Determination of
Applicability of the Massachusetts Wetlands Protection Act
("Request for Determination") regarding a proposal to store fill
and set a trailer on the site of "The Glen" project. On November
6,1984, he filed this request with the Conservation Commission and
with the Commonwealth's Department of Environmental Quality
Engineering, as required.

12. The Conservation Commission's hearing on the Request for
Determination took place on November 20, 1984. The minutes read:
"Erland Townsend stepped off the Commission because of the conflict
of interest." The Commission unanimously voted that the Wetlands
Protection Act did not apply to the proposal to store fill and set
a trailer on the land.

13. Mr. Townsend prepared a Notice of Intent under the
Massachusetts Wetlands Protection Act ("Notice of Intent") to begin
the new construction, prepared the various site plans and layouts
submitted with the Notice of Intent and filed this Notice of Intent
with the Conservation Commission on November 9, 1984. On November
29,1984, the Conservation Commission held a hearing on this Notice
of Intent. At this meeting, Mr. Townsend disqualified himself from
the Conservation Commission and spoke from the audience in response
to questions from co-chairman Ewing regarding the project. Townsend
did not participate in the Conservation Commission's deliberations
or in the writing of the Order of Conditions issued December 6,
1984 in response to the Notice of Intent. The Order of Conditions
refers to plans for "The Glen" signed and stamped by Mr. Townsend
as site engineer.

14. Mr. Townsend received compensation, through his salary from
T&M Engineering, Inc., from Charring Cross for his work on "The
Glen" project, including: (1) the preparation and filing of the EIS
in April, 1984; (2) his defense of the proposed project (against
concerns raised by the Conservation Commission's letter of July
10,1984) before the Board of Public Works, the Board of Health and
the Conservation Commission itself in July 1984; (3) the
preparation and filing on November 9, 1984 of the Request for
Determination; and (4) the preparation of the Notice of Intent (and
supporting documents) and responding to questions regarding this
Notice of Intent at the November 29,1984 Conservation Commission
hearing (speaking as site engineer. not as a board member).

15. General Laws c. 268A, s. 17 prohibits a special municipal
employee, otherwise than in the proper discharge of his official
duties, from directly or indirectly receiving compensation from
a private party (s.17(a)) or acting as agent for a private party
(s.17(c)) in connection with any particular matter in which his
town has a direct and substantial interest, and in which he has
participated, or which is or within one year has been the subject
of his official responsibility, or, if he serves more than 60 days
per year, which is pending in the municipal agency in which he is
now serving.

Page 278

16. The EIS, the Conservation Commission's July 10,1984 letter
to the Board of Appeals, the Request for Determination and the
Notice of Intent were particular matters, as defined by G.L. c.
268A, s.1(k), which were the subjects of Mr. Townsend's official
responsibilities as a member of the Conservation Commission. By
receiving compensation from a private party in connection with
these particular matters, Mr. Townsend violated s. 17(a).[1]

17. By acting as agent for Charing Cross, the developers of "The
Glen" in connection with (a) preparing and filing the EIS; (b)
writing to the Board of Public Works and answering questions at
Board of Health and the Conservation Commission meetings regarding
the Conservation Commission's July 10, 1984 letter; (c) preparing
and filing the Request for Determination; (d) preparing and filing
the Notice of Intent and plans in support of this Notice of Intent;
and (e) speaking as site engineer in response to questions
regarding the Notice of Intent at the November 29,1984 Conservation
Commission meeting, Mr. Townsend thereby violated s.17(c).[2]

18. There is no evidence to suggest that Mr. Townsend knowingly
or intentionally violated G.L. c. 268A. When he accepted his
position as a co-chairman of the Conservation Commission, he made
it clear that he would disqualify himself from participating
in any matter in which his firm was involved, and the evidence indicates
that he did so disqualify himself. In each of the matters involving
"The Glen" he abstained from participation as a member of the
Commission, and made it known that he was speaking only as the site
engineer.

WHEREFORE, the Commission has determined that the public
interest would be served by the disposition of this matter without
further Commission enforcement proceedings on the basis of the
following terms, to which Mr. Townsend has agreed:

(1) that he pay to the Commission a civil penalty in the amount
of $1,000 for violating G.L. c. 268A, s.s.17(a) and 17(c); and

(2) that he waive all rights to contest the findings of fact,
conclusions of law and terms contained in this Agreement in this
or any other related administrative or judicial proceedings in
which the Commission is a party.

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

[1] As detailed in paragraphs 7,12 and 13, Mr. Townsend did not
participate as a member of the Conservation Commission in the
particular matters regarding "The Glen," and therefore did not
violate s.19(a) of G.L c. 268A. As explained herein, even though
he properly abstained from participation as a municipal employee,
he still violated the conflict of interest Law by receiving
compensation from a private party and acting at agent for the
private party in connection with the particular matters regarding
"The Glen."

[2] Even if Mr. Townsend had not filed any documents with or made
any appearances before the Conservation Commission, his preparation
of the EIS, the Request for Determination and the Notice of Intent
and the plans relied upon in the Notice of Intent knowing that
these were particular matters in which the town would have a direct
and substantial interest and were within his official
responsibility at the Conservation Commission, would have been
sufficient to establish a violation of s.17(c).

End Of Decision