Docket No. 335
In the Matter of Joseph D. Cellucci
May 24, 1988
Decision and Order
David A. Wilson, Esq.
Counsel for Petitioner
Paul G. Holian, Esq.
Counsel for Respondent
Diver, Ch., Basile, Epps
The Petitioner initiated these adjudicatory proceedings on
September 17, 1987 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 Joseph D. Cellucci (Respondent) had violated
G.L. c. 268A, s.19 by:
1. on June 11, 1986, ordering Cambridge Inspectional Services
Department (CISD) inspectors to terminate the inspection of a
dwelling at 150 Holworthy Street, Cambridge, a matter in which he
and/or members of his immediate family had a financial interest;
2. between June 11 and July 9, 1986, ordering a CISD inspector
to reinspect 150 Holworthy Street despite instructions to the
contrary from the state Department of Public Health (DPH) Director
of Community Sanitation;
3. on July 21, 1986, sending a letter to the Director of
Community Sanitation for DPH defending CISD's actions concerning
150 Holworthy Street and questioning the DPH's assertion of
jurisdiction over the inspection of 150 Holworthy Street;
4. on September 9, 1986, representing the City of Cambridge at
a DPH hearing concerning 150 Holworthy Street and raising the issue
of whether a CISD inspector's request for court orders as to
uncorrected violations at 150 Holworthy Street would interfere with
DPH's assertion of jurisdiction over 150 Holworthy Street; and
5. on September 9, 1986, making a notation in the CISD official
file regarding 150 Holworthy Street, which read:
Pursuant to a directive at a hearing on this date, only the
State will be responsible for the Enforcement of the State
Sanitary Code regarding this property until such time that
jurisdictional enforcement is resolved.
The Respondent filed his Answer to that Order on Octcber 28, 1987,
denying that he ordered CISD inspectors, on June 11, 1986, to
terminate the inspection of 150 Holworthy Street, denying that he,
between June 11 and July 9, 1986, ordered a CISD inspector to
reinspect 150 Holworthy Street. Cellucci denied all other material
allegations contained in the Order.
Prior to the hearings, Respondent filed a Motion to Dismiss
contending that Petitioner failed to comply with the Commission's
Rules of Practice and Procedure by disclosing confidential
information. The Motion was taken under advisement for the full
Commission by Commissioner Andrea W. Gargiulo, who was designated
as the Presiding Officer.
Adjudicatory hearings were held on November 30, 1987, December
7, 1987, January 11, 1988 and February 1, 1988. The parties filed
posthearing briefs and presented oral arguments before the
Commission on April 13, 1989. In rendering this Decision and Order,
each undersigned member ofthe Commission has considered the
testimony, evidence and argument of the parties.
II. Findings of Fact
1. At all times relevant to these proceedings, Respondent was
the CISD Commissioner and, as such, an employee of the City of
2. As Commissioner, Respondent is responsible for overseeing a
staff of sanitation inspectors whose responsibility is to respond
to complaints alleging unsanitary conditions in residential
buildings in Cambridge.
3. The CISD inspectors enforce the state Sanitary Code.
4. As CISD Commissioner, Respondent is responsible for the
enforcement of the Code in the City of Cambridge.
5. At all times relevant to these proceedings, a two family
dwelling at 150 Holworthy Street, Cambridge, was owned by members
of Respondent's immediate family. Respondent was a record owner of
an undivided one-sixth interest in 150 Holworthy Street from
October 20, 1983 until June 20, 1986, when he sold and transferred
that interest to members of his immediate family.
6. As of June, 1986, the downstairs apartment at 150 Holworthy
Street was occupied by tenants Michael and Marie Stanley. As of
June, 1986, the Stanleys had been served with an eviction notice
for non-payment of rent. Marie Stanley's father, Joseph Talarico,
was a former inspector for CISD.
7. On June 11, 1986, Marie Stanley called the CISD to complain
about conditions at 150 Holworthy Street. She originally spoke to
Joseph Nicoloro, senior sanitation inspector at CISD, a good friend
of Marie Stanley's father who referred the call to John Courtney's
department. John Courtney was an inspector with CISD. Marie Stanley
requested that John Courtney be assigned to her complaint.
8. Rudy Williams, a trainee at CISD, fielded the complaint and
filled out the official CISD complaint form.
9. Complaints received by the CISD are recorded on complaint
record forms which consist of two joined sheets, the top one being
white and the bottom one being a yellow carbonless copy referred
to as the "backup copy."
10. The CISD inspector writing up the complaint dates and time
stamps the complaint record and files the yellow back-up copy for
logging in an in-basket at the front of the CISD office. The white
original is placed into the CISD file folder for the particular
11. CISD office procedure requires that an office supervisor
assign a complaint to an inspector for investigation.
12. CISD inspectors were, at all relevant times, assigned to
specific field districts in Cambridge and not expected to
investigate complaints outside their districts. The Cellucci house
was located in Joseph Cremen's district. As of June 11, 1986, John
Courtney was an inspector with ClSD. He was also, as of June 11,
1986, the ClSD shop steward of the American Federation of State,
County and Municipal Employees. Respondent and John Courtney had
a history of animosity over union disputes. As of March 24, 1987,
John Courtney was suspended from his job at ClSD for misconduct.
The complaints leading to this suspension had been received as of
June 11, 1986.
13. Courtney took it upon himself to inspect 150 Holworthy
Street on June 11, 1986 without seeking, from a supervisor,
assignment of the complaint or permission to inspect property
outside his district.
14. Courtney asked Joseph Cremens and Rudy Williams to accompany
him to 150 Holworthy Street at about 9:45 am.
15. Courtney, Cremens and Williams proceeded to the Cellucci
house, and Courtney conducted a full inspection of 150
Holworthy Street. Courtney then called Howard Wensley, Director of Community
Sanitation at the DPH, on behalf of the Stanleys, left a message
with the Stanley's name, and left the house at 150 Holworthy
16. At home on the evening of June 11, 1986, Courtney wrote up
Housing Inspection Report and Order No. 12263 on 150 Holworthy
Street from notes he had made while conducting the inspection and
filed his inspection report on June 12, 1986, after it had been co-
signed by Cremens and Mr. Williams. The Cellucci family
ultimately spent approximately $5,000 correcting code violations
at 150 Holworthy Street.
17. On June 12, 1986, Respondent conferred with Attorney Robert
Amoroso, CISD's consultant attorney, concerning the inspection
already undertaken and a future course of conduct for the building
department. Mr. Amoroso indicated to Respondent that, because of
the inspection already undertaken, jurisdiction over the matter
rested with CISD.
18. Howard Wensley, DPH Director of Community Sanitation,
received phone calls on June 20, 1986 from Courtney and Michael
Stanley expressing concerns about multiple outstanding violations
of the state sanitary code and requesting DPH involvement in the
enforcement. Howard Wensley ordered DPH supervising sanitarian
Jeffrey Lane to inspect 150 Holworthy Street. These inspections
took place on June 23, 1986, August 5, 1986 and September 8,
19. Sometime between June 12 and July 9, 1986, Wensley told
Courtney not to reinspect 150 Holworthy Street because DPH had
assumed jurisdiction over the property.
20. Courtney reinspected 150 Holworthy Street on July 16, and
28, 1986. Courtney twice made the entry "Court order, please"
in the CISD file as to the June
11, 1986 Housing Inspection Report and once as to the separate July
16, 1986 Housing Inspection Report. The purpose of these
notations was to indicate to the CISD court officer that a court
order should be sought ordering the owner to show cause why the
owner should not be found in violation of the Code because there
had been insufficient progress in correcting the previously cited
violations. CISD inspectors request that a court order for a show
cause hearing before a magistrate be sought when in their judgment
there has been insufficient progress in correcting cited Code
violations. Courtney's request for a court order was denied by the
CISD court officer.
21. On July 17, 1986, Wensley wrote a letter to Respondent
informing him of the DPH inspection of 150 Holworthy Street,
highlighting the fact that Respondent's ownership interest in the
property created an appearance of a conflict of interest, and
informing him that DPH would issue an order concerning the
violations at 150 Holworthy Street.
22. Respondent wrote to Wensley on July 21, 1986, to assure the
state that his department was effectively enforcing the Code with
regard to 150 Holworthy Street and arguing that the state would not
have to intervene.
23. On July 21, 1986, Wensley on behalf of DPH, issued to
Respondent, as owner of 150 Holworthy Street, an order to correct
code violations at 150 Holworthy Street.
24. On August 19, 1986, Attorney Jeffrey M. Graber wrote to
Wensley on behalf of the owners of 150 Holworthy Street requesting
a hearing concerning the DPH's July 21, 1986 order.
25. The DPH show cause hearing, conducted by Hearing Officer
Priscilla Fox, was held on September 9, 1986.
26. Respondent attended the September 9, 1986 DPH hearing, as
the representative of CISD, to try to resolve the jurisdictional
dispute over 150 Holworthy Street.
27. At the September 9, 1986 hearing, two main issues were
discussed: the status of the violations at 150 Holworthy Street,
and whether the CISD or the DPH had jurisdiction.
28. Respondent's participation at the hearing consisted of
listing himself on the attendance sheet as representing the City
of Cambridge, discussing Courtney's outstanding requests for court
orders as they might interfere with DPH's jurisdiction, and
indicating that he would talk to Courtney about holding off on the
court orders while the jurisdictionai issue was resolved.
29. After the hearing on September 9, 1986, Respondent went to
the CISD office and wrote on the notation sheet for the CISD file
for 150 Holworthy Street:
Pursuant to the directive from Howard Wensley, State Director
at a hearing on this date, only the state will be responsible for
the enforcement of the State Sanitary Code regarding this property
until such time that jurisdictional enforcement is resolved. J.
30. Respondent's purpose in making this entry was to inform
his department's personnel that no further action was to be taken
in connection with 150 Holworthy Street.
The Respondent has been charged with five separate violations
of G.L. c. 268A, s.19. We will address each of these alleged
violations separately. Before turning to the five alleged
violations, however, we will discuss certain preliminary issues.
A. Respondent's Motion to Dismiss
Respondent moved, in accordance with 930 CMR 1.01(6) (d), for
dismissal on the grounds of Petitioner's failure to comply with the
Commission's Rules of Practice and Procedure. Specifically,
Respondent asserted that G.L. c. 268B, s.4 was violated by a
conversation a representative of the Enforcement Division had,
sometime in October of 1987, with Howard Wensley of the state
Department of Public Health (a witness in the case) indicating that
information was being sought to help settle the case. Petitioner
has responded that there was no disclosure of any information
required to be kept confidential by either G.L. c. 268B, s.4 or 930
Respondent has claimed no prejudice or harm from this alleged
breach of confidentiality. The issue of this breach of
confidentiality, if it was breached by Petitioner's disclosure that
the parties were discussing a settlement agreement, is best raised
in a separate prcceeding brought pursuant to 930 CMR 3.01(9) and
referred to the Attorney General for investigation.
Accordingly, Respondent's Motion to Dismiss is denied. We would
note, however, that the Order to Show Cause in this case was issued
in September of 1987. This case, at the time of the November, 1987
conversation at issue, was already public in accordance with G.L.
c. 268B, s.4(c) and (h).
B. Exemption Burden of Proof
Respondent has argued, in his post-hearing brief, for the
dismissal of the Order to Show Cause for failure to state a cause
of action. Since our Rules of Practice and Procedure make no
provision for a post-hearing motion to dismiss, 930 CMR 1.01(6)
(d),Respondent's argument as to statutory construction is discussed
below as an affirmative defense.
Respondent asserts that Petitioner was required to
plead and prove that Respondent's conduct was not within the
exception to G.L. c. 268A, s.19 set forth in s.19(b) (1).
Petitioner responds that Respondent had the burden of pleading and
proving a s.19(b) (1) exception as a matter of defense.
It is well established in Massachusetts law that, as a general
rule of pleading, when an exception or proviso is embodied in the
clause which defines the offense (the enacting clause), it must be
negatived in the indictment or complaint, but that if it is only
found in a subsequent distinct clause of the Same or another
statute, it need not be so negated. Commonwealth v. Jennings, 121
Mass. 47, 49(1876); G.L. c. 277, s.37. When an exception is not
stated in the enacting clause otherwise than by merely referring
to other provisions of the statute, it need not be negatived,
unless necessary to a complete definition of the offense." Id. at
51; G.L. c. 277, s.37. The exceptions of s.19(b), not being
embodied in the enacting clause of s.19, are matters of defense or
excuse which must be plead and proven by the Respondent.
Were we to assign the burden of proof of the exemption to the
Petitioner, such an allocation would be plainly inconsistent with
the expressed intent of the original framers of G.L. c. 268A In
its Final Report, the Special Commission on Code of Ethics
explained that the format they had chosen for the statute "was
deliberately designed in order to avoid the necessity of indictment
and proof which must carry the burden of negating all such possible
exceptions and exemptions" and declared that [i]t was the judgment
of the Commission that the burden of proof of an exception or
exemption should be on the public official who claims it." Mass.
House Doc. No. 3650, Final Report of the Massachusetts Special
Commission on Ethics, (April, 1962), at 10. But see, Buss, The
Massachusetts Conflict of Interest Statute: Analysis, 45
B.U.L. Rev. 299,360(1965).
Even assuming for the sake of argument that we were to adopt
Respondent's position, the evidence establishes that the s.19(b)
(1) exception is not applicable. Paragraph 20 of the Order to Show
Cause alleges that Respondent failed to comply with s.19(b) (1)
prior to the acts charged as constituting violations of s.19. In
addition, substantial evidence in the record establishes that
Respondent's partcipation was not authorized by his appointing
official under s.19(b) (1). Respondent testified that he approached
only CISD's consultant Attorney Joseph Amoroso to discuss the
conflict of interest law after the CISD inspection of 150 Holworthy
C. Substantive Violations
There is no dispute that as Superintendent of CISD, Respondent
is a municipal employee as that term is defined in G.L. c. 268A,
s.1(g). Section 19 of G.L. c. 268A prohibits him from participating
as a municipal employee in a particular matter in which, to his
knowledge, he or his immediate family has a financial interest.
Participation for purposes of G.L. c. 268A, s.19 is defined as
participation in agency action or in a particular matter personally
and substantially as a municipal employee, through approval,
disapproval, decision, recommendation, the rendering of advice,
investigation or otherwise. G.L. c. 268A, s.1(j). A particular
matter is 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. G.L. c. 268A, s.1(k). The
Commission finds that the determinations of whether there were
violations of the Code at 150 Holworthy Street, whether those
violations had been corrected and which agency (CISD or DPH) would
enforce the Code as to the property were particular matters within
the meaning of G.L. c. 268A, s.1(k), as was the DPH show cause
hearing concerning 150 Holworthy Street, and as was the
determination of whether court orders would be sought or other
action taken by CISD to enforce the Code as to violations which had
not been corrected by the owners of 150 Holworthy Street within the
time stipulated in the housing inspection reports and orders filed
by Courtney. The Commission also finds that the Respondent
participated in these particular matters by disapproving, in
his July 21, 1986 letter to Howard Wensley, of DPH's assertion
of jurisdiction over the inspection of 150 Holworthy Street, by
representing; on September 9, 1986, the City of Cambridge at a DPH
hearing concerning 150 Holworthy Street and raising the issue as
to whether a CISD inspector's request for court orders as to
uncorrected violations at 150 Holworthy Street would interfere with
DPH's assertion of jurisdiction over 150 Holworthy Street, and by
making a notation in the CISD file on 150 Holworthy Street, on
September 9, 1986, indicating that only the state would be
responsible for enforcement at 150 Holworthy Street. Petitioner
has also alleged additional violations of G.L. c. 268A, s.19 based
on Respondent's role in ordering CISD inspectors to leave an
ongoing inspection of 150 Holworthy Street on the morning of June
11, 1986, and Respondent's ordering a CISD inspector, sometime
between June 11 and July 9, 1986, to reinspect 150 Holworthy
Street. The Commission finds that there is insufficient credible
evidence to support these two allegations. The Commission, in
particular, finds CISD Inspector John Courtney's testimony on both
of these allegations not to be credible. Finally, the Commission
finds that Respondent and his immediate fitmily had a financial
interest in the controversy surrounding the inspection of 150
Holworthy Street because as owners of the property, Cellucci's
immediate family would bear the cost of repairs.
Respondent contends that his July 21, 1986 letter to DPH, his
September 9, 1986 appearance at the DPH hearing and his September
9, 1986 addition to the file on
150 Holworthy Street were all acts that did not violate G.L. c.
268A, s.19 in that these acts were done solely with regard to the
jurisdictional conflict with DPH. Respondent's attempt to draw a
line between his participation in resolving the jurisdictional
dispute between CISD and DPH and participation in the actual
inspection at 150 Holworthy Street fails, The determination of
whether there were violations of the Code at 150 Holworthy Street
is one of the particular matters in this case. The jurisdictional
issue arose in the context of the controversy surrounding the
inspection and a resolution of the jurisdictional issue would have
had a reasonably foreseeable impact on the financial interest of
Respondent and his immediate family in this case. The determination
of whether the violations occurred and which agency would enforce
the Code as to the property were "particular matters" within the
meaning of G.L. c. 268A, These matters were particular matters in
which members of Respondent's family had a direct financial
interest. Respondent's letter to Wensley on July 21, 1986 indicates
clear knowledge of his immediate family members' ownership interest
of 150 Holworthy Street.
Respondent's discussion of the particular status of the
inspection and reinspection of 150 Holworthy Street, in that
letter, demonstrates partitipation in that determination. The
Commission has held that, for the purposes of s.19(a),
"participation" is not limited to discretionary and/or final
decisions; rather it is enough that one has interjected oneself
into the making of a decision by a municipal agency, whether one's
duties required it or not, and that one's participation is deemed
substantial. See, In the Matter of George Najemy, 1984 SEC 223,224,
rev'd on other grounds Najemy v. State Ethics Commission, Worcester
Superior Court No. 85-31001 (1986); In the Matter of James J.
Craven, Jr., 19800 SEC 19,22 aff'd sub nom. Craven v. State Ethics
Comisssion, 390 Mass. 191(1983). Respondent's July 21, 1986 letter
falls well within this standard.
Respondent's participation in the September 9, 1986 DPH hearing
was clearly in his official capacity. The jurisdictional and
inspectional controversies were both addressed at the meeting. His
raising at the hearing Courtney's requests for court orders on 150
Holworthy Street was participation in a particular matter in which
he knew his immediate family member had a financial interest.
Respondent, by raising the issue, was attempting to secure
exclusive state jurisdiction over 150 Holworthy Street, just as
the July 21, 1986 letter to Howard Wensley, before Respondent knew
of CISD inspector requests for court orders, sought to secure
exclusive ClSD jurisdiction over 150 Holworthy Street Similarly,
Respondent's September 9, 1986 notation to the ClSD file, in light
of the unsettled jurisdictional question, was a further attempt to
secure exclusive state jurisdiction over 150 Holworthy Street. We
find that each of these three acts amounts to personal and
substantial participation as defined in G.L. c. 268A,s.1(j).
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 $6,000, we believe that the imposition of the
maximum fine is not wanted. This is because we find Respondent's
motives in these acts to have been a desire to repress
insubordination at CISD and to assert his authority against Howard
Wensley, intertwined with a desire to protect his family's
financial interests. A genuine complaint to CISD started this case,
but it was a complaint advanced by Respondent's antagonists at CISD
that created the context for Respondent's acts in violation of
s.19. The context of these violations serves as a mitigating
factor. Respondent's act's were not neutral, however, and did seek
to protect his family's financial interest. Therefore, a fine
reflecting these facts is appropriate.
On the basis of the foregoing pursuant to its authority under
G.L. c. 268B, s.4, the Commission orders Respondent to pay one
thousand dollars ($1,000.00) to the Commission as a civil penalty
for three violations of G.L. c. 268A, s.19.
 Commissioner Gargiulo resigned from the Commission prior to the
issuance of this Decision and Order and, therefore, she is not a
 Although the record reflects considerable evidence as to an
alleged telephone conversation between Courtney and Cellucci while
Courtney at was 150 Holworthy Street on the morning of June
11, 1986, the Commission does not find credible Courtney's
testimony that he spoke with Cellucci or that Cellucci ordered him
to terminate the inspection. Accordingly, Petitioner has not
carried the burden of proof on allegation number one from page one,
 This report listed 12 violations of the State Sanitary Code
including the need for the repair of selected stairs, selected
walk and ceilings, tiles in the bathroom, selected floors,windows, the
kitchen stove, the front exterior door, a second exterior door, a
leak in the cellar, exposed wires in the bathroom, and the
bathroom water pressure. In addition, the landlord had not posted
his name, address and phone number in the appropriate manner. The
report gave the owners 21 days to rectify the deficiencies and
stated a reinspection date of July 9, 1986.
 This report listed twenty-six violations of the State
Sanitary Code, including the need for the repair of the front
porch's ceiling paint, the front door, the door to the second
floor, the front hall ceiling, the kitchen floor, the kitchen
ovenn, the pantry floor, the bathroom wall tiles and grouting, the
bathroom faucet, the bathroom ceiling, a bedroom window, the living
room ceiling, a living room window, the front room's windows, the
rear closet walls, the leak in the cellar, the front steps. and the
rear stairs to the second floor. In addition, the kitchen was
infested with cockroaches, an old mattress needed to be moved from
the cellar, and the owner's name and address was not posted.
 This report listed fifteen violations of the State Sanitary
Code including eleven outstanding violations from the June 23, 1986
inspection. In addition, there were problem with a lack of hot
water, rodent infestation, the pantry windows and a hole in the
 This report listed fourteen violations of the State Sanitary
Code including a lack of hot water, rodent infestation, problems
with the pantry windows, the bathroom grouting, the bedroom
windows, the front room windows, a leak in the cellar, an old sofa
pad covering a hole in the cellar
floor, debris in the storage area. the front steps. the rear
stairway and the garage foundation.
 The July 16, 1986 reinspection prompted Courtney to write up
another report indicating that the Stanley's refrigerator was not
working Courtney, on that date, noted that, of the violations
listed in his report of June 11, 1986, numbers 1 and 2 were
partially done and there was no progress on numbers 5,9, and 12.
Volations numbers 3,4,6,7,8,10, and 11 were corrected Courtney
subsequently reported these developments on the Holworthy Street
file notation sheet. The July 28,1986 reinspection found that no
progress had been made on the outstanding (as of July 16, 1986)
violations from either the June 11, 1986 or July 16, 1986 reports
Courtney reported his findings on the CISD notation sheet.
 Although Courtney testified that he reinspected on the order
of Respondent, the Commission does not find this testimony
credible. we find more credible Respondent's testimony that he did
not discuss the inspection of 150 Holworthy Street with Courtney.
 This letter called upon Respondent to adjust the hot water,
exterminate for roach infestation, repair the oven element, repair
broken windows, fix a leak in the front hall, fix the kitchen and
pantry floors, repair bathroom tiles, repair bathroom grouting,
repair tile walls at the faucet spout, repair bathroom and living
room ceilings; repair the bath faucet, repair bedroom, living room
and front room windows, repair the rear closet, remove debris from
the cellar, repair the rear railing and stairway to second floor,
provide railing on both sides ofthe front steps, investigate and
repair the cause of mold growth on the living room ceiling and to
post the building with the name, address and telephone number of
 Complaints that Commission members and employees have violated
the provisions of M.G.L.c. 268B, 3,4 or 7 of these regulations
shall be referred to the Attorney General for investigation. Such
referral shall not preclude additional sanctions by the Commission.
 G.L. c. 268A,4(c) states:
"If a preliminary inquiry indicates reasonable cause for
belief that this chapter or said chapter two hundred sixty-
eight A has been violated, the Commission may, upon a majority
vote, initiate an adjudicatory proceeding to determine whether
there has been such a violation... (h) All adjudicatory
proceedings of the Commission carried out pursuant to the
provisions of this section shall be public, unless the members
vote to go into executive session."
 "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 oganizations, powers, duties, finances and