Docket No. 468

In the Matter of Robert Columbus

May 26, 1993

Disposition Agreement




This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Robert
Columbus (Mr. Columbus) 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 September 10, 1992, the Commission initiated, pursuant to
G.L. c. 268B, s. 4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by
Columbus. The Commission has concluded its inquiry and, on March
30, 1993, found reasonable cause to believe that Columbus
violated G.L. c. 268A. On May 21, 1993, the Commission's
Enforcement Division issued an Order to Show Cause, commencing
adjudicatory proceedings. The Order to Show Cause alleged that
Columbus violated G.L. c. 268A, s. 19 by issuing building permits
to himself or his sons. On May 25, 1993, the Enforcement Division
and Columbus informed the Commission that they proposed to
resolve the matter.

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

1. At all relevant times, Columbus was employed as a
building inspector for the Town of Stoneham. As such, Columbus
was a municipal employee as that term is defined in G.L. c. 268A,
s. 1(g).

2. Columbus' official duties as the Stoneham Building
Inspector include the issuing of building permits for
construction being done in the town and ensuring all work
performed pursuant to such permits complies with local building
codes.

3. At all relevant times, Columbus owned property at 1
Brookbridge Road in Stoneham, his son Stephen Columbus (Stephen)
owned Stoneham properties at 25 Washington Street and 76 Williams
Street, and his son Robert Columbus (Robert) owned Stoneham
property at 86 Pleasant Street.

4. On the following dates, and at the places indicated,
Columbus, in his capacity as Stoneham Building Inspector, issued
the following building permits:

(a) a November 6, 1987 building permit to Stephen for 25
Washington Street for a re-roof;

(b) a November 6, 1987 building permit to Robert for 86
Pleasant Street for a kitchen addition;

(c) an April 24, 1990 building permit to Stephen for 76
Williams Street for a re-roof and interior alterations; and

(d) an August 29, 1991 building permit to a contractor for
Columbus' property at 1 Brookbridge for a re-roof [1].

5. Section 19 of G.L. c. 268A, except as permitted by
paragraph (b), [2] prohibits a municipal employee from
participating as such an employee in a particular matter in which
to his knowledge he or an immediate family member has a financial
interest.

6. The decisions to issue the building permits described
in paragraph 4, above, were particular matters.

7. As set forth in paragraph 4, above, Columbus
participated as a building inspector in those particular matters
by issuing the building permits.

8. Either Columbus or one of his sons had a financial
interest in each of the foregoing building permits.

9. Columbus, by issuing the building permits to himself or
his sons, as set forth in paragraph 4, participated in his
official capacity in particular matters in which he knew he or an
immediate family member had a financial interest, thereby
violating G.L. c. 268A, s. 19 [3].

10. In connection with the above-described conduct, the
Commission has found no evidence of corrupt intent [4].

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

-636-

(1) that Columbus pay to the Commission the sum of seven
hundred and fifty dollars ($750) as a civil penalty for
violating G.L. c. 268A, s. 19 as stated above;

(2) that Columbus will act in conformance with the
requirements of G.L. c. 268A, s. 19 in the future; and

(3) that Columbus 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] The Order to Show Cause included a November 19, 1990
building permit to Robert for 86 Pleasant Street for a sunroom,
woodburning stove and temporary kitchen. The Commission has
decided not to pursue this matter based on evidence that Columbus
was out of state when the permit issued and that his secretary
typed his name in the signature space in his absence.

[2] None of those exemptions apply here.

[3] Columbus was also involved in a significant controversy
in the spring of 1992, concerning a certificate of occupancy for
property owned by Stephen at 76 Williams Street. On January 2,
1992, Columbus obtained a s. 19(b)(1) exemption from the town
administrator to participate as building inspector in an addition
Stephen was constructing at the above property. (Section s.
19(b)(1) provides that it shall not be a violation of s. 19 "if
the municipal employee first advises the official responsible for
appointment to his position of the nature and circumstances of
the particular matter and makes full disclosure of such financial
interest, and receives in advance a written determination made by
that official that the interest is not so substantial as to be
deemed likely to affect the integrity of the services which the
municipality may expect from the employee.") Subsequently,
questions arose concerning the size of the addition and whether
the structure violated zoning regulations. On February 24, 1992,
the town administrator wrote a memorandum to Columbus stating,
"Any future requests for building permits involving your
immediate family (spouse, child, mother, father, sisters and
brothers) will be referred to this office because you are the
only Building Inspector for the Town of Stoneham. I have
previously felt that having only one Building Inspector would
necessitate your issuance of permits for everyone including
family members. Upon reflection and advice, I will appoint an
Acting Building Inspector to issue future building permits to
resolve any question for the potential of either a conflict of
interest or the applicability of a concept of `necessity'
resulting from one Building Inspector." On March 7, 1992, a local
inspector appointed by the town administrator denied Stephen's
application for a certificate of occupancy and issued a cease and
desist order. According to Columbus, on April 7, 1992, Columbus,
relying on advice he received from private legal counsel
indicating he could do so, signed a certificate of occupancy for
76 Williams Street but did not physically deliver the certificate
to Stephen. The town administrator suspended Columbus for
planning to issue the certificate of occupancy in violation of
his directive. On April 14, 1992, Columbus signed a letter to the
town administrator stating, "I am revoking the Occupancy Permit
in recognition of the fact that its issuance was inappropriate
given your legitimate contrary instructions as Town Administrator
not to be involved in this matter involving my son and not on the
specific merits as to whether a Certificate of Occupancy should
be issued." Columbus contends that he signed the letter in order
to get his job back and without the benefit of counsel.

Although the Order to Show Cause included the above matter,
the Commission has agreed to the proposal of the Enforcement
Division and Columbus not to pursue the matter further because
Columbus showed sensitivity to the conflict issue by originally
seeking and obtaining a s. 19(b)(1) exemption from his appointing
authority, and because the town administrator and Columbus
immediately took action to remedy the situation. The Commission
also notes that Columbus acted in reliance on private legal
advice (albeit incorrect), although we point out, as we have done
in the past, that if a public employee involved in a potentially
serious conflict of interest situation seeks to rely on a legal
opinion as a shield against action by this Commission, the
opinion must be from town counsel, in writing and made a matter
of public record, and forwarded to the Commission for review
pursuant to 930 CMR 1.03(3). In re Lavoie, 1987 SEC 286, 287.

[4] Corrupt intent is not an element of a s. 19 violation.