Docket Nos. 350 and 351

In the Matter of Joseph Zora, Jr. and Joseph Zora, Sr.

May 12, 1989

Decision and Order


Appearing:

Freda K. Fishman
Robert A. Levite
Counsel for Petitioner

Donald J. Fleming
Counsel for Respondents

Commissioners:

Diver, Ch., Basile, Epps, Jarvis, Pappalardo


I. Procedural History

The Petitioner initiated these adjudicatory proceedings on
December 9, 1987 by filing Orders to Show Cause pursuant to the
Commission's Rules of Practice and Procedure, 930 CMR 1.01(5)(a).
The Orders alleged that Joseph Zora, Jr. (Zora Jr.) had violated
G.L. c. 268A, s.17(c) on six separate occasions and that Joseph
Zora, Sr. (Zora Sr.) had violated G.L. c. 268A, s.17(c) on four
separate occasions.

Specifically, the Order to Show Cause alleges that Zora Jr.
violated s.17(c) of the conflict law by:

1. on April 10, 1985, appearing at a meeting of the Marion
Conservation Commission (MCC) and acting as agent for Zora
Enterprises, Inc.;

2. on April 10 and 12, 1985 making telephone calls, as the agent
of Zora Sr., to the chairman of the MCC regarding the MCC's failure
to post legal notices of the time and place of its meetings on the
Rider Notice of Intent;

3. on April 12, 1985, acting as agent for Zora Enterprises whlie
walking lot #45 with the MCC and a representative from the
Department of Environmental Quality Engineering (DEQE);

4. on April 19, 1985, acting as agent for Zora

Page 402

Enterprises in discussions before the MCC regarding lot #45; and

5. on April 24, 1985, acting as agent for Zora Enterprises in
a discussion regarding lot #45 by suggesting to the MCC that it
needed to review some of its procedures regarding its requirements
for issuance of a decision on a pending application.

Specifically, the Order to Show Cause alleges that Zora Sr.
violated s.17(c) of the conflict law by:

1. on April 19, 1985, appearing at a MCC meeting as an agent for
Zora Enterprises and the Riders, and substantially participating
in discussions regarding whether or not the MCC had jurisdiction
to make decisions regarding percolation tests on lot #45 and
submitting a written memorandum expressing 13 concerns relating to
the hearing process;

2. authorizing his son on two occasions to contact the Chairman
of the MCC regarding the MCC's failure to post legal notices of the
time and place of its meetings on the Rider Notice of Intent; and

3. on April 24, 1985, acting as agent for Zora Enterprises and
the Riders at a MCC meeting by participating in a discussion
involving the procedural aspects of the MCC's hearing requirements
in connection with the Rider Notice of Intent and by submitting a
letter from an engineer regarding a percolation test performed on
lot #45.

Each of the Respondents filed an Answer on February 12, 1988.

Zora Jr. raised the following defenses:

1. Article 15 Part I of the Declaration of Rights to the
Massachusetts Constitution guarantees a right to trial by jury in
proceedings before the State Ethics Commission;

2. that the speech complained of is protected under the
Massachusetts and Federal constitutions;

3. that this action is barred by the applicable statute of
limitations and his due process rights are violated by the
Commission's proceedings in light of this;

4. that he was not a regular municipal employee as a member of
the MCC;

5. that he abstained from any MCC activity on March 24, 1985
and resigned on that date;

6. that the MCC's meeting on April 19, 1985 was not lawful and
so he could not, as a matter of law, have violated s.17 at that
meeting; and


7. that a percolation test is not a "particular matter" within
the meaning of the statute since the MCC does not have the legal
authority to conduct a percolation test.

Zora Sr. raised the followings defenses:


1. Article 15 of Part I of the Declaration of Rights to the
Massachusetts Constitution guarantees a right to trial by jury in
proceedings before the State Ethics Commission;

2. that the action is barred by the applicable statute of
limitations and his due process rights are violated by the
Commission's proceedings;

3. that the speech and acts complained of is protected under
the Massachusetts and Federal constitutions;

4. that his due process rights have been violated by ex parte
proceedings in the reasonable cause determination;

5. that he was a special municipal employee as a member of the
Marion Board of Selectmen and that he was not a Selectman at
times pertinent to the Order to Show Cause;

6. that he and the MCC at all times treated the land owned by
Zora Enterprises as land owned by the Respondent individually;

7. that in March and April of 1985, lot #45 was not under any
written purchase and sale agreement, nor had any tide passed to
Rider;


8. on April 19, 1985 there was no scheduled meeting of the
MCC;

9. on April 19, 1985 he was not acting as agent for another;

10. he did not authorize his son on two occasions to contact
the Chairman of the MCC regarding the MCC's failure to post legal
notices of the time and place of its meetings on the Rider
petition;

11. on April 24, 1985 he did not act as an agent for the
Riders; and

Page 403

12. in that the MCC is not authorized by law to conduct
percolation tests on his land, that act cannot be a "particular
matter" within the meaning of the statute.

Both Respondents denied all other material allegations contained
in the Orders.

Prior to the hearings, Respondents moved to dismiss on the
grounds of statute of limitations and denial of jury trial. Zora
Jr. moved for summary judgment on first amendment grounds. Zora Sr.
also moved for summary judgment on this ground as well as on the
ground that his acts were permissible under G.L.c. 268A, s.17(c)'s
fiduciary exemption. Commissioner Archie Epps, who was designated
as Presiding Officer, denied these motions.

These cases were consolidated on March 29,1988 following
separate Motions to Consolidate filed by all parties. A pre-hearing
conference was held on April 13,1988 and adjudicatory hearings were
held On April 22,29, May 13 and 30, 1988. The parties filed
posthearing briefs and presented oral arguments before the
Commission on February 8, 1989. Respondent's grounds for summary
judgment and dismissal are renewed in their briefs.

In rendering this Decision and Order, each undersigned member
of the Commission has considered the testimony, evidence and
argument of the parties.[1]

II. Findings of Fact

1. At all times relevant to this case, Joseph P. Zora, Sr. was
a Selectman for the Town of Marion. The members of the Marion Board
of Selectmen, at all times relevant to this case, were regular
municipal employees.

2. At all times relevant to this case, Joseph P. Zora, Jr. was
a member of the MCC[2] The MCC members, at all times relevant to
this case, were regular municipal employees.

3. The respondents are father and son.

4. In the early 1960's, Zora Sr. and his wife purchased
approximately 75 acres of land in the Town of Marion.

5. Subsequent to that time, but prior to 1985, they acquired
additional land in the Town.

6. Zora Sr. intended to develop the land for single family
housing.

7. On or about January 12, 1972, Zora Enterprises was
incorporated pursuant to G.L. c. 156B, "to carry out the business
of developing and improving real property." Zora Sr. was named
president and treasurer of the corporation, his wife, Glenna M.
Zora, was named clerk, and their children were named directors.

8. By June of 1983, the title to the land previously held by Bra
Sr. et ux had been transferred to bra Enterprises, Inc.

9. In June of 1983, Zora Enterprises, Inc. filed a subdivision
plan at the Plymouth County Registry of Deeds for a hundred acre
subdivision divided into 45 lots.

10. In late 1984 or early 1985, Roy and Sheila Rider approached
Zora Sr. to express an interest in buying Lot #45 in the
subdivision owned by Zora Enterprises, Inc.

11. Zora Enterprises, Inc. and the Riders entered into a
Purchase and Sale Agreement on Lot #45 for the sum of twenty-five
thousand dollars on or about February 6, 1985. The Agreement was
conditioned on the performance of a percolation test or tests to
be performed on or before February 20, 1985 with the buyers having
the option to terminate the agreement and recover the deposit "[i]f
said tests do not meet the minimum standard set forth in 310 CMR
15.00 et seq."

12. Sometime prior to March 27, 1985, the Riders filed a Notice
of Intent under G.L.c. 131, s.40 (the Massachusetts Wetlands
Protection Act) with the MCC with respect to Lot #45. A Notice of
Intent seeks a permit, otherwise known as an Order of Conditions,
to perform work on the land subject to s.40.

13. The Riders were seeking an Order of Conditions from the MCC
to construct a house, fill part of the property to accommodate a
subsurface sewage disposal system and install a swnnming pool on
Lot #45.

14. Lot #45 was subject to the jurisdiction of the MCC because
it lies lower than 14.5 feet above sea level. G.L. c. 131, s.40.
The MCC reviews plans for construction on land within its
jurisdiction for impact on ground water supply, shellfish and
fisheries, flood control, wetland alteration or replication, storm
damage control and pollution.

15. On March 27, 1985, the MCC held a public hearing on the
Rider's Notice of Intent.

Page 404

16. At the hearing, Zora Jr. announced that he would not
participate in the Rider's public hearing because of his father's
financial interest in the property. However, he was present during
the bearing.

17. After Roy Rider presented his Notice of Intent to the MCC,
MCC member Jolin Rockwell informed the MCC that he had gone
out to the property himself a few days previously and had dug some holes
in the land, and the property seemed very wet to him and he was
concerned that the water table was in fact higher than that
reported. He suggested to the MCC that a second percolation test
be done on the lot. Due to the fact that the Riders bad already
paid for a test, the MCC voted to conduct a second test at Town
expense, and subsequenlly voted to continue the bearing until the
additional information was submitted.

18. Zora Sr. subsequently learned of the MCC's actions with
respect to Lot #45 and was angered at the outcome of the meeting.
He regarded the MCC's actions as an attack on his. integrity.

19. Sometime prior to the next scheduled meeting of the MCC on
April 10, 1985, Zora Sr. telephoned Janice Mendes, MCC Chair, and
threatened the MCC with a lawsuit if anyone set foot on Lot #45.

20. On April 10, 1985, Zora Jr. attended the scheduled meeting
of the MCC as a result of a discussion with his father, who
complained that he was unable to get information about the hearing
continuance on the Rider Notice of Intent. Zora Jr. told his father
that he would obtain the information.33

21. At the meeting, Zora Jr. stated that he was there as agent
for Zora Enterprises, Inc..[4] His presence as "agent" and not as
"member" was noted in the minutes.[5]

22. Zora Jr. stated that with respect to the Rider Notice of
Intent, the MCC did not have the authority to order a second
percolation test; the percolation test was the obligation of the
applicant. He also stated that the MCC did not have the right to
dig on Lot #45.

23. MCC Chair Mendes told Zora Jr. that the Rider's Notice of
Intent could not be processed without a site inspection which she
was now unwilling to perform without written permission from Zora
Sr. due to his threats of litigation.

24. Zora Jr. stated that Zora Sr. had already given them
permission to go on the property. He further stated that he himself
was reiterating permission for the members of the MCC to on the
property.

25. Subsequently, Mendes spoke by telephone with Zora Sr. who
stated that the MCC could go on the land as long as his
representative was present and the MCC dug no holes. On April 12,
1985, a site inspection of Lot #45 took place. MCC members John
Rockwell, Janice Mendes, Joyce West, Jack Taliaferro and Ann
Chismare participated. Also present were Arthur Thompson, whose
firm had conducted the original percolation test, Joseph Hartley,
DEQE Wetlands Division Section Chief and Zora Jr.

26. Zora Jr. had been authorized by his father to represent the
interests of Zora Enterprises as Zora Sr. was not available to
attend.

27. The group convened at the Town Hall, where Zora Jr. first
objected to the presence of a DEQE representative stating that
contacting DEQE was an official action of the MCC which had not
been duly voted. He did, however, give permission for the DEQE
representative to enter the property.

28. The MCC conducted a site inspection. If the inspection
resulted in a determination that the land was wetlands, the value
of the land would substantially diminish.

29. Zora Jr. accompanied the group during their inspection. He
expressed disagreement that 50% of the lot contained wetlands
vegetation and stated that the observations of some of the MCC
members were "baloney' or "bull__."

30. The MCC met on April 19, 1985 to continue the public hearing
on the Rider's Notice of Intent.

31. Zora Jr., Zora Sr., and Roy Rider attended the meeting.
Rider authorized Zora Sr. to speak on his behalf with respect to
the way the MCC was administering the Wellands Protection Act in
relation to the Rider Notice of Intent because Rider felt that Zora
Sr. had more expertise in this area.[6]


32. Zora Sr. proceeded to address the MCC at length, criticiaing
various aspects of their procedures.

33. Zora Sr. also submitted a memorandum detailing his
objections to the MCC's conduct.

34. The memorandum was addressed to the MCC from Joseph P. Zora,
President of Zora Enterprises, Inc. Prior to submitting the
memorandum, Zora Jr.

Page 405

and Zora Sr. discussed its contents.

35. Among other things, the memorandum stated that after Zora
Jr. withdrew from sitting on the MCC due to the pending Rider
Notice of Intent, he was present to represent bra Enterprises, Inc.
before the MCC "clarity[ing] and protest[ing] actions taken against
bra Enterprises concerning Lot #45" and "on behalf of Zora
Enterprises," granting permission to the MCC for a site inspection.

36. Following the bra presentation, the MCC discussed the
question of the deadline for its decision on the Rider Notice of
Intent. The MCC was of the opinion that it had 21 more days in
which to issue its ruling under the applicable regulation.

37. Zora Jr. disputed this, stating that the 21 day period ran
from the date of the originial hearing and that the MCC had run out
of time and had to render its decision that day.

38. The discussion concluded with the MCC voting to issue an
Order of Conditions on the Rider Notice of Intent after the Zoras
had left the meeting.

39. On April 24, 1985, both Zora Jr. and Zora Sr. accompanied
by an attorney, again appeared at the MCC meeting.

40. Zora Sr. provided the MCC with a letter from an engineer who
had performed a second percolation test on Lot #45.

41. Zora Jr. and Zora Sr. were informed that the Order of
Conditions had already been voted on at the previous meeting.

42. As the Zoras left, Zora Jr. commented that "you guys have
a lot of work to do knowing what your procedures are.

43. Following the resolution of the Rider matter, Zora Jr.
resumed his participation as a member of the MCC.

III. Decision

Respondents Zora Jr. and Zora Sr. have been charged with six and
four separate violations of G.L.c. 268A, s.17(c), respectively.
Before turning to the alleged violations, however, we will discuss
certain preliminary issues.

A. Procedural
1. Statute of Limitations

Both Zora Jr. and Zora Sr. contend that the Commission has
violated their due process rights by proceeding on matters where
the statute of limitations has run.

This Commission has, by regulation, codified a three-year
statute of limitations pursuant to its regulatory authority, 930
CMR 1.02(10). The Orders to Show Cause in this case were issued on
December 9, 1987. All of the acts at issue in this case took place
in the spring of 1985. The facts alleged in these Orders to Show
Cause all occurred, therefore, within the applicable statute of
limitations. The issue of the applicability of G.L. c. 260, s.5
which establishes a two-year statute of limitations in actions for
penalties to be given to the Commonwealth has been raised and
rejected elsewhere. See, In the Matter of Robert P. Sullivan, 1987
SEC 312.

2. First Amendment and Due Process Rights

Respondents have filed a memorandum arguing that the speech and
acts involved in the Orders to Show Cause are protected under the
state and federal constitutions. Because we customarily assume
the constitutionality of G.L. c. 268A, and Commission procedures,
we do not usually address the constitutional challenges at the
administrative level. We would note, however, that s.17(c), as
applied in this case, does not abridge Respondents' freedom of
speech, does not punish the contect of their speech, and does not
limit their access to the corporate form. Section 17(c), as
applied, only limits their right to act as agent for others, a
limitation well within the authority of the legislature. See, eg.,
G.L. c. 221, s.43 (agents prohibited from soliciting clients on
behalf of attorney). Similarly, Respondents' rights to due process
before the MCC are not harmed in any way by G.L. c. 268A, s.17(c),
as applied.

3. Right to Trial by Jury

Respondents have filed a memorandum arguing that they have a
right to a trial by jury under Article 15 of Part I of the
Declaration of Rights to the Massachusetts Constitution. The
Supreme Judicial Court, however, has previously determined that our
proceedings do not implicate the right to trial by jury. See,
Opinion of the Justices of the Senate, 375 Mass. 795,820 (1978).

Page 406

B. Substantive Violations

The relevant 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 matter in which the municipality or
an agency of the same municipality is a party or has a direct and
substantial interest.

1. Status as Municipal Employees

General Laws chapter 268A, s.1(g) defines "municipal employee"
as a "person performing services for or holding an office,
position, employment or membership in a municipal agency, whether
by election, appointment, contract of hire or engagement whether
serving with or without compensation on a full, regular, part-time,
intermittent or consultant basis." There is no dispute that both
Zora Jr. ad Zora Sr. were municipal employees within the meaning
of the statute during March ad April of 1985 when Zora Sr. was a
member of the Marion Board of Selectmen and Zora Jr. was a member
of the Marion Conservation Commission. What was disputed was
whether the respondents were regular or special municipal
employees.

G.L. c. 268A, s.1(n) defines "special municipal employee" as
a municipal employee who is not a mayor, a member of a board of
aldermen, a member of a city council or a selectman in a town
with a population in excess of five thousand persons, and whose
position or employment has been expressly classified by the city
council, or board of aldermen if there is no city council, or
the board of selectmen as that of a special employee under the
terms and provisions of this chapter. All employees who hold
equivalent offices, positions, employment or membership in the
same municipal agency shall have the same classification;
provided, however, no municipal employee shall be classified as
a "special municipal employee" uniess he occupies a position for
which no compensation is provided or which, by its
classification in the municipal agency involved or by the terms
of the contract or conditions of employment, permits personal
or private employment during normal working hours, or uniess he
in fact does not earn compensation as a municipal employee for
a aggregate of more than eight hundred hours during the
preceding three hundred and sixty-five days.

For this purpose compensation by the day shall be considered as
equivalent to compensation for seven hours per day. A special
municipal employee shall be in such status on days for which he
is not compensated as well as on days on which he earns
compensation. All employees of any city or town wherein no such
classification has been made shall be deemed to be "municipal
employees" and shall be subject to all the provisions of this
chapter with respect thereto without exception.

General Laws Chapter 268A, s.17 indicates, in pertinent part,
that the prohibitions of s.17(c) shall not apply to a special
municipal employee if the particular matter at issue is neither
before his own agency, nor within his official responsibility, nor
one in which he has ever participated in his official capacity.
As special" status is an affirmative defense to a s.17(c)
violation, the burden of proof lies with respondents. See, In the
Matter of Joseph Cellucci, 1988 SEC 346 (Adjudicatory Docket No.
335). Respondents have failed to meet this burden.

Zora Jr. asserted in his brief that G.L. c. 268A, s.1(n)
requires that he be classified as a special municipal employee.
The statute expressly provides, however, that there is no automatic
special municipal employee status. Certain categories of employees
are eligible for classification but, absent classification, are to
be deemed regular municipal employees. Zora Jr. offered no evidence
of such designation or status for the times relevant to this case.
He offered no evidence of the vote that would have created the
status, and no evidence as to the date of the vote that would have
created the status.

Similarly, Zora Sr. claimed he was a special municipal employee.
He testified credibly that he believed he was a special municipal
employee, although he did not understand with any accuracy how the
status was obtained. His claim to this status is dependent upon
a reading of the May 28, 1985 Board of Selectmen minutes and
attachments that assume that an undocumented designation took place
prior to May 28, 1985 ad that the May 28, 1985 minutes memorialize
that vote. We do not find this evidence adequate to find that the
Board of Selectmen voted to designate itself special status at any
point. The March 28 minutes evidence of genuine awareness in Marion
of special municipal employee status and of a genuine attempt to
confer it. Zora Sr.'s good faith belief that he was a special
municipal employee, however, is a mitigating factor and not
evidence that G.L.c. 268A, s.1(n) was satisfied. We also reject
Zora's argument that he automatically became a special municipal

Page 407

employee, as a member of the Marion Board of Selectmen, because in
another position he held bad special municipal employee status.
Special municipal employee status attaches to the position and not
to the person. See G.L. c.268A, s.1(n). In short, the record
indicates that the bras were regular municipal employees at all
times relevant to the Orders to Show Cause.

2. Particular Matter

General Laws chapter 268A, s.1(k) defines a "particular matter"
as "any judicial or other proceeding, application, submission,
request for a ruling or other determination, contract, claim,
controversy, charge, accusation, arrest, decision, determination,
finding, but excluding enactment of general legislation by the
general court and petitions of cities, towns, counties and
districts for special laws related to their governmental
orgamzations, powers, duties, finances and property."


It is not disputed that a Notice of Intent like the one
submitted by the Riders to build on their chosen design on Lot #45
is a particular matter. Respondents argue, rather, that of the
particular matters Petitioner is targeting here (all meetings,
discussions, votes, surveys, correspondence relating to the Rider
Notice of Intent) the MCC's decision to conduct a percolation test
on Lot #45 and the April 19,1985 meeting of the MCC are not
particular matters within the meaning of the statute. Respondents
argue that the former is not a particular matter because the MCC
exceeded its authority when it ordered the test. Similarly, they
contend that the April 19, 1985 meeting is not a particular matter
because it was not a meeting conducted in accordance with the Open
Meeting Law. We decline to inquire into the strict legality of
every particular matter involving the handling of an application
of a permit in order to enforce the conflict of interest law. A
federal courts considering the same argument in relation to the
interpretation of 18 U.S.C. 203, has, concluded that lack of
authority is no defense in a gratuity case. U.S. v. Evans, 572 F2d
455 (5th Cir. 1978). The Rider Notice of Intent for an Order of
Conditions is clearly a particular matter, something bra Jr.'s own
s.19 abstention highlights.

We also find that each of these matters was of direct and
substantial interest to the Town of Marion,-and the Respondents
have not asserted otherwise. We regard the Town's interest in the
MCC proceedings, particularly in the maintenance of an unpolluted
water supply and in protection from flood and storm damage, to be
direct and substantial.

3. Agency - Zora Jr.

The term "agent" is not defined in G.L. c. 268A, but the
Commission has indicated that it includes merely speaking or
writing on behalf of a nongovernment party. EC-COI-84-6. "[T]he
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, negotating, signing documents and submitting
applications [citation omitted]." In the Matter of Robert P.
Sullivan, 1987 SEC 312,314. Zora Jr.'s appearance as self-described
agent" at the April 19, 1985 MCC meeting where he questionned the
MCC's authority to conduct a second percolation test on Lot #45
clearly falls within this definition.

His April 12,1985 appearance at the site inspection review,
where he once again declared himself the agent of another,
authorized the entry of a DEQE representative on the land, and
commented on the site inspection review, also indicates an occasion
where he was acting on behalf of another. Finally, his April 19,
1985 appearance at the MCC hearing, where he told the MCC that a
statutory time period for completing its review on the Rider Notice
of Intent had lapsed and they were obligated to issue the permit
that night, also indicates an occasion where he was acting on
behalf of another.

We have indicated previously that if the conduct of a 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. Sullivan, supra at 315. There can be little doubt
that such an inference was warranted on these occasions because of
bra Jr.'s self-identification, the manner in which he presented
himself, and the public knowledge that his father considered him
an agent of bra Enterprises, Inc. There is no evidence that bra
Jr. was acting on behalf of his own interests. Further, the fact
that bra Jr. was acting on behalf of a corporation whose owners
were rmmediate family members does not insulate bra Jr. from
liability although, as indicated below, it is relevant
consideration for disposition purposes.

4. Agency - Zora Sr.

At the time the Riders' Notice of Intent was taken up by the
MCC, negotations for the purchase of the lot had concluded and a
Purchase and Sale Agreement executed. It is undisputed that one
condition of the sale was that the lot satisfy state percolation
standards. A decision that the land did not "perc" would

Page 408

effectively render it unsaleable. Accordingly, the indication by
the MCC on March 27, 1985 that it was not satisfied with the perc
test the Riders submitted, was a direct threat to the consummation
of the deal. The seller of the land had a direct financial interest
in the proceedings of the MCC with respect to the Rider's Notice
of Intent. It is undisputed that the seller was not Zora Sr. but
the corporate entity, Zora Enterprises, Inc., of which Zora Sr. was
the president.

It is also undisputed that Zora Sr. appeared before the MCC.
What is disputed is whether his appearance was "in connection with"
Rider Notice of Intent. The facts are clear, however, that although
Zora Sr.'s motives were mixed, all of his acts in question were
directly in connection with issues that arose under the Rider
Notice of Intent application. His integrity was questionned only
in that context. Zora Sr.'s attempt to draw a line between his
concern with his integrity ad his concern with the Rider Notice of
Intent application fails. All of his concerns, as expressed in the
memorandum submitted at the April 19, 1985 MCC meeting, arose in
the context of the application and were in relation to the
processing of and the MCC decisions to be made on that application.

Respondent's argument that no agency can be established here
since his interests were identical to the interests of the family
corporation, Zora Enterprises, Inc. also fails. The Commission has
indicated elsewhere that, as a family trust was a distinct legal
entity, a municipal employee who was also a trustee would be acting
on behalf of another in seeking occupancy permits for buildings
owned by the trust, even if he and immediate family members were
the sole beneficiaries of the trust. EC-COI-84-117. The same rule
applies to the family corporation found here. Just as the
Commission declined in Sullivan, supra, to rule that a president,
director or stockholder of a closely held corporation was not an
agent of a corporation in all situations for the conflict of
interest law purposes, we follow a similar reasoning here. We
conclude that such an officer is an agent of the corporation in the
ordinary scope of canym.g out its business before a municipal
agency on the facts of this case.

Finally, Zora Sr. and Rider confirm that at the April 19, 1985
MCC meeting Zora Sr. spoke on behalf of Rider as well as himself.
This role of spokesman was clearly in relation to the Rider Notice
of Intent as well.

IV.Conclusion

Zora Sr. violated s.17(c) on two occasions, at the
April 19 and 24, 1985 MCC meetings, by acting as agent for Zora
Enterprises and the Riders in connection with the Rider application
for an Order of Conditions in which the Town of Marion was a party
or had a direct and substantial interest. Section 17(c)'s fiduciary
exemption, by its express langnage, is not available to an elected
official. EC-COI-84-117. We find that the Petitioner has not
sufficiently established on the record the factual basis for
allegations that Zora Sr. authorrzed his son to contact the MCC
Chair. Consequently, we find no violation of s.17(c) with respect
to these additional allegations.

Zora Jr. violated s.17(c) on four occasions at the April 10, 19
and 24, 1985 MCC meetings and on the April 12, 1985 site inspection
of Lot #45. A finding that two s.17(c) violations occurred based
on Zora Jr.'s phone calls to the MCC Chair as agent of his father
was not substantiated in the record.

V.Sanction

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 maxmum fine
on Zora Jr. is $8,000.00 and on Zora Sr. is $4,000.00, we believe
that the imposition of fines in this case is not warranted.

With regard to Zora Sr., this is because all of his violations
would have been avoided had he in fact obtained the special
municipal employee status. Zora Sr. was particularly credible on
the point of his belief that he had this status at all times. The
evidence also indicates that, equally important, the Marion
Selectmen thought he had special status and had wanted him to have
special status. Simply, no evidence was entered that he had been
properly designated. In light of this gennine confusion as to
special municipal employee status and the evidence that those with
the authority to confer this designation intended to confer this
status (and believed that they had conferred this status), the
Commission declines to impose a fine.

With regard to Zora Jr., several factors persuade us that a fine
should not be imposed. These include the evidence that he made an
effort to comply with G.L. c. 268A by not participating as a
municipal employee in particular matters in which Zora Enterprises,
Inc. had a financial interest, see, G.L. c. 268A, s.19, the lack
of evidence that Zora Jr.'s acts of agency had any determinative
effect on the outcome of decisions made by the MCC, and the fact
that Zora Jr. made no effort to conceal his involvement in these
matters. More importantly, we note Zora Jr.'s actions as agent for
Zora Enterprises were on behalf of a corporation the

Page 409

owners and officers of which were all family members. While Zora
Jr. is clearly not entitled to the protection s.17 provides for
municipal employees who act as agent for immediate family
members,[7] his actions, viewed in the context of the family
corporation, do not merit the imposition of a fine.

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[1] Respondents' concern that G.L. c. 30A, s.11(7) be complied with
has been noted. A majority of those signatory to this Decision and
Order have either heard or read the official record in this matter.

[2] Zora Jr. raised a defense alleging his March 24, 1985
resignation in his Answer but then abandoned it. It is not
addressed here both because of its abandonment and because of the
facts found to the contrary. See page 10 infra.

[3] The Commission specifically credits Janet Mendes' testimony as
well as Zora Jr.'s and Zora Sr.'s depositions as found in Exhibits
P9 and P10.

[4] Janet Mendes was credible on this point and on the point that
Zora Jr. gave every appearance of acting as agent for Zora Sr. and
Zora Enterprises, Inc.

[5] This finding of fact uses Marion Town minutes that were entered
into evidence over Respondents' objection -- an objection they
reiterate in their brief. These certified minutes were ruled
admissible under the standards of 930 CMR 1.01(9)(f)2. Respondents
were given considerable leeway in their attempts to prove that the
minutes were forged or incorrect, but offered no substantial
evidence on these points beyond the undisputed fact that the
minutes were misplaced for some period of time.

[6] See the discussion "in connection with" requirement found on
page 15 infra.

[7] Paragraph 6 of s.17 does not provide protection under the facts
of this case because (1) Zora Jr. was legally acting on behalf of
a corporation, not individual family members; (2) the particular
matters involved were the subject of his official responsibility
as a member of the MCC; and (3) there is no evidence that he sought
or received prior approval for his actions from his appointing
authority. See, G.L. c. 268A, s.17, paragraph 6.