Public Enforcement Letter 99-3

Jennie Caissie

c/o Attorney Michael V. Caplette
Three Bowlen Avenue
Southbridge, MA 01550-2455

February 25, 1999


Dear Ms. Caissie:

As you know, the State Ethics Commission ("the
Commission") has conducted a preliminary inquiry into allegations
that you violated the state conflict of interest law, General Laws
C. 268A, by participating as an Oxford Board of Selectman ("BOS")
member in a decision to issue an outdoor business permit to Gary
Kettle ("Kettle") for a fruit stand while your family operated a
competing outdoor fruit stand. Based on the staff s inquiry
(discussed below), the Commission voted on

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January 13, 1999, that there is reasonable cause to believe that
you violated the state conflict of interest law, G.L. c. 268A, s.s.
19 and 23(b)(3).

For the reasons discussed below, the Commission does not
believe that further proceedings are warranted. Instead, the
Commission has determined that the public interest would be better
served by bringing to your attention, and to the public's
attention, the facts revealed by the preliminary inquiry and by
explaining the application of the law to the facts, with the
expectation that this advice will ensure your understanding of and
future compliance with the conflict of interest law. By agreeing to
this public letter as a final resolution of this matter, you do not
admit to the facts and law discussed below. The Commission and you
have agreed that there will be no formal action against you in this
matter and that you have chosen not to exercise your right to a
hearing before the Commission.


I. Facts


1. Oxford covers 26.71 square miles with 81 miles of
public roads. Oxford's population is 13,298.

2. You serve as an Oxford selectman, having been elected
in May 1997.

3. Your immediate family[1/] has owned and operated a
fruit and vegetable stand at 233 Main Street in Oxford since 1995.
Your family's business permit allows the stand to operate from July
to December. Goods are sold off a truck and trailer parked at 233
Main Street.

4. On August 12, 1997, Kettle appeared before the BOS
requesting an outdoor business permit to operate a fruit and
vegetable stand on Charlton Street in Oxford. Kettle has not
previously operated such a stand in Oxford. Kettle wanted to build
a wooden fruit stand 20 feet by 24 feet, with a parking area of 300
feet by 50 feet. Kettle's business permit application states that
his stand would operate from April to December. It would be
approximately 2/2 miles from your family's fruit stand.

5. According to the BOS minutes, you were significantly
involved in the discussion concerning Kettle's application for this
permit.[2/]

6. The BOS approved Kettle's permit application. The vote
was 3-0 with you abstaining and one BOS member absent.

7. You sent the following letter dated October 17, 1997,
to the State Ethics Commission:

An issue came before the Board of Selectmen regarding whether
to issue Mr. Kettle a permit to build a fruit stand at a location in
close proximity to a major river in Oxford. The Board of Selectmen
voted to issue Mr. Kettle the permit. In lieu (sic) of the fact that I
hold a fruit stand permit in Oxford and sell vegetables in the community,
I did not vote on the issue when it came before the Board of Selectmen,
as I believed it to be improper for me to take action on the matter.[3/]


II. Discussion


As a selectman, you are a municipal employee subject to
the conflict of interest law, G.L. c. 268A.[4/] You are subject to
c. 268A generally and, in particular, to s. 191[5/] which prohibits
a municipal employee from participating[6/] in particular
matters[7/] in which she or a member of her immediate family[8/]
has a financial interest.[9/] The concern of this section is that
the objectivity and integrity of municipal employees can be
compromised if they act on matters affecting the financial
interests of people or businesses with whom they are closely
related. The Massachusetts Supreme Judicial Court has determined
that participation involves more than just voting, and includes any
significant involvement in a discussion leading up to a vote. See
Graham v. McGrail, 370 Mass. 133, 138 (1976). In that case, the
Court advised, "The wise course for one who is disqualified from
all participation is to leave the room." Id.

Your family's fruit stand business and Kettle's proposed
fruit stand would be competitors. Both are in the same business
(selling fruits and vegetables) and operate in a small town. The
stands are 2 1/2 miles away from each other and operate basically
at the same times during the year. Furthermore, in your
above-described October l7, 1997 letter, you in effect concede that
it would have been improper for you to vote on Kettle's permit
because you would be competitors.

The decision to approve Kettle's application for a permit
to operate a fruit and vegetable stand was a particular matter.
Because Kettle's proposed business, if approved, would compete with
your family's fruit stand, you and/or your immediate family had a
financial interest in this decision. You were aware of that
financial interest. Your involvement in this decision was
substantial because you contributed significantly to the discussion
leading up to the vote. Therefore, by participating in the
discussion concerning Kettle's application for an outdoor permit to
operate a fruit and vegetable stand, there is reasonable cause that
you violated s. 19.

In the future, to avoid violating s. 19, you should
completely abstain from any involvement in a particular matter in
which your family's business has a financial interest (either
directly, or indirectly through actions affecting a competitor)and
you should consider leaving the room if a group discussion is
involved, as the Court advised in Graham v. McGrail, supra.[10/]

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III. Disposition


The Commission is authorized to resolve violations of
G.L. c. 268A with civil penalties of up to $2,000 for each
violation. The Commission chose to resolve this case with a public
enforcement letter rather than imposing a fine because it believes
the public interest would best be served by doing so.

Based upon its review of this matter ' the Commission has
determined that your receipt of this public enforcement letter
should be sufficient to ensure your understanding of and future
compliance with the conflict of interest law.

This matter is now closed.


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


[1/] Your family has owned and operated the fruit stand for a
number of years. The permit has either been in your and/or your
father's name.

[2/] Examples of your involvement are:

"Selectman Caissie asked how close the fruit stand was to
the river."

"Selectman Caissie asked if this [the fruit stand being
only 16 feet from the river bank] was a pollution issue."

"Selectman Caissie said that she had a concern about
people pulling out around that comer on Charlton Street."

"Chairman Saad said that he would entertain a Motion to
grant the Outdoor Business Permit. Selectman Caissie
asked that the Board's vote be contingent upon the
Conservation Commission's decision."'

[3/] There are four fruit stand permits in Oxford (this number
includes your and Kettle's businesses).

[4/] A copy of G.L. c. 268A is attached for your information.

[5/] Section 19 provides in pertinent part,

(a) Except as permitted by paragraph (b), a
municipal employee who participates as such an
employee in a particular matter in which to
his knowledge he, his immediate family or
partner, a business organization in which he is
serving as officer, director, trustee, partner
or employee, or any person or organization
with whom he is negotiating or has any
arrangement concerning prospective employment
has a financial interest. shall be punished by
a fine of not more than three thousand dollars
or by imprisonment for not more than two
years, or both.

[6/] "Participate" means to 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.

[7/] "Particular matter" means 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.

[8/] "Immediate family" means the employee and his spouse, and
their parents, children, brothers and sisters.

[9/] "Financial interest" means any economic interest of a
particular individual that is not shared with a substantial segment
of the population of the municipality. See Graham v. McGrail, 370
Mass. 133 (1976). This definition has embraced private interests,
no matter how small, which are direct, immediate or reasonably
foreseeable. See EC-COI-84-98. The interest can be affected in
either a positive or negative way. See EC-COI-84-96.

[10/] Your actions also raise concerns under s.23. Section 23
is the so called "code of conduct" section of the conflict of
interest. The sub-part of that section which appears to apply to
your situation is s.23(b)(3). Section 23(b)(3) prohibits a
municipal employee from knowingly, or with reason to know, acting
in a manner which would cause a reasonable person. with knowledge
of the relevant facts. to conclude that anyone can improperly
influence or unduly enjoy her favor in the performance of official
duties, or that she is likely to act or fail to act as a result of
kinship, rank, position or undue influence. This subsection's
purpose is to deal with appearances of impropriety and, in
particular, appearances that public officials have given people
preferential treatment. This subsection goes on to provide that the
appearance of impropriety can be avoided if the public employee
discloses in writing to her appointing authority (or if she does
not have an appointing authority, discloses in a manner which is
public in nature (such as filing a written disclosure with the town
clerk)) all of the relevant circumstances which would otherwise
create the appearance of conflict. The appointing authority or town
clerk (for elected employees) must maintain that written disclosure
as a public record.

Even if for some reason you and/or your immediate family
did not have a financial interest in the Kettle permit particular
matter which triggered a s. 19 problem, there would still be
reasonable cause to believe that you violated s.23(b)(3). That is,
by participating in matters affecting a competitor's permit
application, you acted in a manner which would cause a reasonable
person to conclude that you might be unduly influenced by your
family's business interests in the performance of your official
selectman duties. Your having a competitor relationship with Kettle
would give you a bias as to Kettle's application. It would not
matter whether, in fact, you acted on or were affected by that
bias. The mere fact that a reasonable person could conclude that
you had the bias would be enough to create an appearance problem
under s.23(b)(3). Consequently, if there had not been a s. 19 bar
to your participating, as discussed above, you still should not
have participated under s.23(b)(3) unless you first made a written
s.23(b)(3) disclosure. Again, on the present facts, s. 19 would
appear to have applied for the reasons discussed above.

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End of Decision