Docket No. 546

In the Matter of Louis Zwingelstein

Date: March 11, 1996

Disposition Agreement


The State Ethics Commission ("Commission") and Louis
Zwingelstein ("Zwingelstein") enter into this Disposition Agreement
("Agreement") pursuant to s.5 of the Commission's Enforcement
Procedures. This Agreement constitutes a consented to final order
enforceable in the Superior Court, pursuant to G.L. c. 268B,
s.4(j).

On July 11, 1995, the Commission initiated, pursuant to G.L.
c. 268B, s.4(j), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A, by Zwingelstein. The
Commission has concluded its inquiry and, on February 14, 1996,
found reasonable cause to believe that Zwingelstein violated G.L.
c. 268A, s.s.17 and 19.

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

1. Zwingelstein was, during the time relevant, a Sheffield
Conservation Commission member. As such, Zwingelstein was a
municipal employee as that term is defined in G.L. c. 268A, s.1.

2. During the time relevant, Zwingelstein has owned and is
president of Soil Tech, Inc. ("Soil Tech"), a Massachusetts
corporation which provides a wide range of engineering consulting
services. Zwingelstein receives a weekly salary from Soil Tech.

3. In or about December 1993, William Harris, a Sheffield
resident, hired Soil Tech to design a plan for a fire pond that
Harris wanted to build on his property in Sheffield.

4. Zwingelstein prepared the design, completing it on or
about January 4, 1994. Harris paid Soil Tech for this design.
Part of Zwingelstein's Soil Tech salary was attributable to the
work he did on this design.[1]

5. In or about late December 1993, Harris applied to the
Sheffield Conservation Commission for a determination of
applicability regarding his intention to construct the pond.[2]

Page 782

6. On January 28, 1994, the Conservation Commission signed
Harris' determination of applicability (for permission to dig
monitor wells to verify water levels), finding that although the
work was within a buffer zone, it would not alter any wetlands.
Zwingelstein participated in this by discussing and signing the
determination of applicability.

7. In September 1994 (prior to September 22, 1994), Harris
submitted a Notice of Intent to the Conservation Commission
regarding his plan to construct the above pond.[3] The drawing
submitted in connection with the Notice of Intent was based on the
design prepared by Zwingelstein discussed above.

8. At a September 22, 1994 public hearing, the Conservation
Commission reviewed Harris' Notice of Intent. Zwingelstein
involved himself in the discussion of the Notice of Intent by, as
a Conservation Commission member, making comments in support of the
project. At that time, the Commission continued the hearing, and
decided to conduct a site visit. Zwingelstein supported those
decisions.

9. On October 10, 1994, Zwingelstein (as a Conservation
Commission member), along with certain other members of the
Commission, viewed the site.[4]

10. On October 13, 1994, the Conservation Commission resumed
the public hearing regarding the Harris Notice of Intent.
Zwingelstein, acting as a Conservation Commission member, involved
himself in the discussion. After some extensive discussion, the
Commission, with Zwingelstein concurring, agreed to continue the
hearing.

11. The Conservation Commission next considered the Notice of
Intent on October 27, 1994. The Commission approved the Notice of
Intent by a 2 to 1 vote. Zwingelstein was not present. According
to Zwingelstein, he did not attend this meeting because, as he
understood the conflict of interest law, while he could act as a
private engineer regarding matters that would come before his
board, and while he could discuss those matters as a member of the
board, he could not participate in definitive votes on any such
matters.[5]

12. At its October 27, 1994 meeting, the Conservation
Commission decided to issue an Order of Conditions with the
following conditions for the project: compliance with Fire
Department fire pond standards; mulch would be made out of straw or
hay from adjacent fields; pesticide, herbicide or any other
chemical application would be regulated within the resource area of
the project and the buffer zone; and the project would be carried
out between July 1 and October 30, 1994.[6]

13. On January 25, 1995, Zwingelstein resigned as a
Conservation Commission member.

14. Section 17(a) of G.L. c. 268A prohibits a municipal
employee from directly or indirectly receiving compensation from
anyone other than the municipality in relation to a particular
matter in which the municipality has a direct and substantial
interest.

15. The decisions made by the Conservation Commission
regarding the determination of applicability and the notice of
intent were particular matters.

16. The town had a direct and substantial interest in those
particular matters.

17. Zwingelstein received $1,100 (Harris paid to Soil Tech)
for designing a plan which he knew would go before the Conservation
Commission in relation to the notice of intent.

18. Therefore, by indirectly receiving compensation from
Harris for designing a plan in relation to the Conservation
Commission's decision regarding the notice of intent, Zwingelstein
received compensation in relation to a particular matter in which
the town had a direct and substantial interest, thereby violating
s.17(a).

19. Section 17(c) of G.L. c. 268A prohibits a municipal
employee from acting as agent or attorney for anyone other than the
municipality in relation to a particular matter in which the town
has a direct and substantial interest.

20. By preparing and placing his initials on the above
described plan, where he knew that plan was going to be submitted
to the Conservation Commission, Zwingelstein acted as Harris' agent
in relation to a particular matter in which the town had a direct
and substantial interest, thereby violating s.17(c).

21. Except as otherwise permitted by that section,[7] General
Law c. 268A, s.19 prohibits a municipal employee from participating
as such in a particular matter in which to his knowledge he, a
member of his immediate family, or a business organization the
employee is involved with has a financial interest.

22. As discussed above, the decisions by the Conservation
Commission regarding the determination

Page 783

of applicability and notice of intent were particular matters.[8]

23. Zwingelstein participated[9] in the decision regarding
the determination of applicability by discussing it at the January
1994 Conservation Commission meeting, and by signing the
determination. He participated in the Notice of Intent by
discussing the issue at Conservation Commission meetings on
September 22, 1994 and October 27, 1994; and by going on the site
visit on October 10, 1994.

24. At the time he so acted, Zwingelstein was aware that Soil
Tech would be the clerk of the works for the project if the
Conservation Commission approved the project. Consequently, he
knew that he and/or a business organization by which he was
employed had a financial interest in these particular matters.

25. Therefore, by acting as described above, Zwingelstein
participated as a Conservation Commission member in particular
matters in which to his knowledge he and/or a business organization
by which he was employed had a financial interest, thereby
violating s.19.

26. Zwingelstein cooperated with the Commission's
investigation.

In view of the foregoing violations of G.L. c. 268A by
Zwingelstein, 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 and conditions agreed to by Zwingelstein:

(1) that Zwingelstein pay to the Commission the sum of two
thousand dollars ($2,000) as a civil penalty for violating
G.L. c. 268A, s.s.17 and 19;

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

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

[1] Harris paid Soil Tech approximately $1,100 for this design
work. In addition, Zwingelstein would supervise the construction
of the fire pond, discussed infra.

[2] A determination of applicability is a filing required with
the Conservation Commission for projects near wetlands, per G.L. c.
131, s.40 (Massachusetts Wetlands Protection Act).

[3] A Notice of Intent is a filing required when a project
takes place within 100 feet of a "buffer zone" (wetlands, river,
lakes or other bodies of water). The notice describes the proposed
project and how it would affect the buffer zone.

[4] The purpose of a Conservation Commission site visit in
connection with a Notice of Intent is to view the project site and
ask questions. Site visits are not required, and are not conducted
for all projects.

[5] As is discussed infra, Zwingelstein's understanding of the
law was incorrect.

[6] Zwingelstein terminated his and his company's involvement
with the project in June 1995, after being contacted by the State
Ethics Commission. Thus, he did not serve as clerk of the works on
the project.

[7] None of the exceptions applies.

[8] "Particular matter," 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 organizations, powers, duties, finances and
property. G.L. c. 268A, s.1(k).

[9] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s.1(j).

Page 784

End of Decision