Docket No. 636

In the Matter of Peter Curtin

August 21, 2001

Disposition Agreement


The State Ethics Commission and Peter Curtin enter into this
Disposition Agreement pursuant to Section 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.40).

On June 23, 1999, the Commission initiated, pursuant to G.L.
c. 268B, s.4(a), a preliminary inquiry into possible violations of
the conflict of interest law by Curtin. The Commission concluded
that inquiry, and on March 1, 2001, found reasonable cause to
believe that Curtin violated G.L. c. 268A.

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

Findings of Fact

1. At all times relevant, Curtin served on the Tyringham Board
of Selectmen ("BOS"). As such, he was a municipal employee within
the meaning of s. 1 of the conflict of interest law, G.L. c. 268A.

2. The selectmen also serve as the Board of Health ("BOH").

3. Curtin was employed as a caretaker for a property in
Tyringham.

4. In summer 1997, a pond located on the property was dredged.

5. At its September 25, 1997 meeting, the BOH decided that the
silt from the pond dredging would be dumped at the Tyringham
Transfer Station ("TTS"). Curtin asserts he did not participate in
this decision.

6. On September 27, 1997, Curtin arranged to have the silt
dumped at the TTS.

7. Shortly thereafter a heavy rain caused the silt to
"run-off' and damage the nearby wetlands.

8. A local restaurant owner, Donald Hale, complained to the
Division of Environmental Protection about the damage.

Page 1023

9. Shortly after Hale reported this matter to the DEP, Curtin,
as a Board member, requested local and state health and building
inspections of Hale's restaurant All the inspections were within
the authority of the Board to order.

10. In December 1997, the DEP fined Curtin for illegal dumping
in a wetlands area and ordered him to submit a restoration plan and
restore the site by June 1, 1998.

11. At the December 22, 1997 Board meeting the Board decided
the town was responsible for the wet lands violation and that the
town, as opposed to Curtin would restore the wetlands as the Board
members had agreed where to put the silt. Curtin significantly
involve himself as a Board member in this decision by advocating in
the discussion that the town should assume responsibility for any
damage caused by the dumping.

12. White Engineering and Wilkinson Excavating restored the
wetlands at a cost of $1,8 60 and sent bill in that amount to the
town.

13. On April 13, 1998, Curtin signed a warrant which included
a $1,140 payment to White Engineering for the restoration plan. On
June 22, 1998, Curtin sign& a warrant that included a $720 payment
to Wilkinson Excavating for the restoration.

14. On September 17, 1998, Commission Enforcement staff
questioned Curtin about this matter. Or October 1, 1998, Curtin
reimbursed the town for the $1,860 in clean-up expenses paid to
White Engineering and Wilkinson Excavating.

Conclusions of Law
Curtin and the Clean-Up

15. Section 19 of G.L. c. 268A, except as other wise permitted
in that section, prohibits a municipal employee from participating
as such an employee in a particular matter in which to his
knowledge he has a financial interest. None of the exceptions in s.
19 apply.

16. The decision made at the December 22, 199, BOH meeting to
make the town responsible for the wet lands violation was a
particular matter. In addition, the decision to have the town pay
White Engineering and Wilkinson Excavating a total of $1,860 for
the restoration work was a particular matter.[1]

17. As set forth above, Curtin participated[2] as BOH member
by 1) significantly involving himself as BOH member in the December
22, 1997 BOH meeting to have the town, rather than Curtin restore
the wetlands and 2) approving warrants totaling $1,860 for the
restoration work.

18. Curtin had a financial interest in the town paying for the
restoration as the DEP had indicated that Curtin was responsible
for the clean-up. Curtin was aware of his financial interest at the
time he participated.

19. Accordingly, by 1) participating in the December 22, 1997
BOH meeting to have the town restore the wetlands; and 2) approving
warrants totaling $1,860 for the restoration work, Curtin
participated as a municipal employee in particular matters in which
he knew he had a financial interest. In so doing, Curtin violated
G.L. c. 268A, s. 19 on each occasion.

Retaliation against Hale

20. 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, having knowledge of the relevant
circumstances, to conclude that any person can improperly influence
or unduly enjoy his favor in the performance of his official
duties, or that s he is likely to act or fall to act as a result of
kinship, rank, position or undue influence of any party or person.

21. By requesting local and state health and building
inspections of Hale's restaurant shortly after Hale complained
about the silt run-off to the DEP, Curtin acted in a manner which
would cause a reasonable person knowing all of these facts to
conclude that Curtin was likely to act as a result of Hale's
position as the DEP complainant. Therefore, Curtin violated
s.23(b)(3).

Resolution

In view of the foregoing violations of G.L. c. 268A, 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 Curtin:

(1) that Curtin pay to the Commission the sum of $1,500 as a
civil penalty for violating GL. c. 268A, s. 19;[3]

(2) that Curtin pay to the Commission the sum of $1,000 as a
civil penalty for violating GL. c. 268A, s.23(b)(3); and

(3) that Curtin 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 proceeding to which the Commission is or may be a
party.

Page 1024

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

[1] "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).

[2]"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. GL.c.268A,s.10).

[3] In imposing this fine, we note that Curtin has reimbursed
the town $1,860 for the restoration costs.