Docket No. 567

In the Matter of Brian Main

Date: November 10, 1997

Disposition Agreement


The State Ethics Commission ("Commission") and Brian Main
("Main") enter into this Disposition Agreement ("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 October 15, 1996, the Commission initiated, pursuant to
G.L. c. 268B, 40), a preliminary inquiry into possible violations
of the conflict of interest law, G.L. c. 268A, by Main. The
Commission has concluded its inquiry and, on October 16, 1997,
found reasonable cause to believe that Main violated G.L. c. 268A,
s. 19.

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

1. Main was, during the time relevant, the Town of Hopedale
part-time building commissioner. As such, he was a municipal
employee as that term is defined in G.L. c. 268A, s.1. As building
commissioner Main was responsible for reviewing all building permit
applications and issuing building permits and occupancy permits.
Main was also responsible for reviewing plans to ensure they
complied with the zoning bylaw.

2. At all times relevant, Main was the owner of Bri-Con
Associates, an architectural firm doing business in the Hopedale
area.

3. Joseph Gorby, at all times relevant, was a developer in the
Hopedale area.

4. At some point in 1993 or 1994, Gorby hired Bri-Con to draft
preliminary plans for a 16 unit subdivision to be located on Boyd
Street in Hopedale ("Subdivision"). Main prepared these plans.[1]

5. In May 1994, the selectmen accepted G.L. c. 143, s.3Z,
which allows part-time building inspectors to perform private
construction work in a town provided the work is inspected by
another qualified inspector. On May 5, 1994, Main filed a letter of
disclosure with the town clerk disclosing he would be providing
architectural and consulting services to Gorby, and that if the
project proceeded, inspections would be conducted by the building
commissioner from the Town of Mendon.

6. On September 9, 1994, Gorby applied to the Hopedale ZBA for
a comprehensive permit to construct the Subdivision under a
so-called Local Initiative Program ("LIP").[2] This submission
consisted of an application and supporting house and site plans.
Main's name appeared on the application as the architect/engineer
of record and as the contractor/builder. In addition, the house
plans attached to the application were those drafted by Main,
however, the plans were certified by Main's partner at Bri-Con,
architect Brian Judge. (The site plans were drawn by an engineering
firm, not by Main or Bri-Con.)

This was the first time in Hopedale a developer had sought
such a comprehensive permit under the LIP. Consequently, there was
no clear procedure in place for processing Gorby's application.
Nevertheless, the consensus was that each town board having an
interest in the matter would be provided with an opportunity to
comment on the application. The Building Department was one of
those agencies.

7. On September 12, 1994, Main, as the building commissioner,
reviewed the drawings and site plans that accompanied the Gorby
application and certified that the development was in a certain
zoning district and that the plans and application were accurate.

8. On October 20, 1994, Main, as the building commissioner,
wrote to the ZBA chair stating that the house plans appeared to be
in conformance with the state codes[3] and that there were no
conditions that would adversely affect the Building Department's
ability to issue permits. (In so stating, Main was reviewing his

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own plans.) In addition, Main stated that the Building Department
would assure conformance with all applicable codes.[4] (If the
special permit had issued, supervision of the construction would
have been handled by an inspector from another town.)

9. When Main reviewed the original applications and plans on
September 12, 1994, and when he wrote his letter to the ZBA chair
on October 20, 1994, regarding the plans' and the project's
compliance with the state code, Main knew that he had the following
financial expectations regarding this project: First, he knew that
it was reasonably foreseeable that Gorby would hire him to be the
architect who would draft the detailed home construction plans.[5]
(It is traditional, according to Main, that the architect who does
the preliminary drawings is hired to do the detailed drawings.)
Second, Main also knew that if the permit were approved and the
construction went forward, Main planned to bid to become the
construction manager for the project.[6] Third, Main knew that if
there were problems with the preliminary drawings, any need for
revisions would be directed back to Bri-Con Associates.

10. 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 has a
financial interest.

11. The determination by the Town of Hopedale as to whether to
approve the comprehensive permit was a particular matter.[8] In
addition, the individual decisions by Main as to whether the plans
were accurate and complied with State Building Code and his
decision to offer assurances that his department (though, not Main
personally) would ensure that the actual construction complied with
the code were also particular matters.

12. Main participated[9] in those particular matters by
deciding that the plans were accurate and complied with the code,
and by communicating that his department would ensure that these
units would comply with the code.

13. At the time he so acted, he expected to do the detailed
plans for the project, expected to seek other work on the
subdivision which was dependent on the permit being approved, and
knew that if the plans were determined to be inadequate, that would
affect him financially. Consequently, he knew that he had a
financial interest in these particular matters.

14. Therefore, by approving the plans on September 12, 1994,
by recommending in an October 20, 1994 letter to the ZBA chair that
the plan be approved, and by stating that his department would
ensure that the actual construction would comply with the state
code, Main participated as a municipal employee in particular
matters in which to his knowledge he had a financial interest,
thereby violating s.19.

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

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

(2) that Main 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] Main received approximately $2,000 for the work he did on
the preliminary plans.

[2] Under the LIP a developer is allowed to construct a
multi-unit housing development under less stringent zoning
guidelines than would otherwise apply, provided that a certain
percentage of the homes constructed are priced to sell to
low-income homebuyers.

[3] The Commission is not aware of any evidence indicating the
plans did not conform with the code.

[4] This assurance was important. The application had
generated significant controversy including a concern that the
construction would be substandard. Consequently, Main's assurance
that the construction would comply with all codes helped allay
those concerns.

[5] Main expected to receive approximately $5,000 for the
detailed plan work.

[6] Main also hoped to act as the developer's liaison with the
realtors in getting units ready by picking out colors for carpets,
and matters of that sort. The cost for this service would be about
$1,000 per house.

[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,

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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.10).

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End of Decision