Date: July 25, 2013

Disposition Agreement

The State Ethics Commission (“Commission”) and former Templeton Selectman Dennis O’Brien (“O’Brien”) 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, § 4(j). 

On January 18, 2013, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A.  On March 15, 2013, the Commission concluded its inquiry and found reasonable cause to believe that O’Brien violated G.L. c. 268A, §§ 19, 23(b)(2)(ii) and 23(b)(3).

The Commission and O’Brien now agree to the following findings of fact and conclusions of law:

Findings of Fact

  1. O’Brien was elected to the Templeton Board of Selectman (“BOS”) in 2007 and served one three-year term.
  2.  O’Brien has lived with his wife in a house in Templeton for 23 years (the “O’Brien Family Home”).  The O’Brien Family Home is held in a trust (the “Trust”), with O’Brien as the trustee, O’Brien and his wife as holders of a life estate, and O’Brien’s three adult children as the beneficiaries. 
  3. Directly across the street from the O’Brien Family Home is a vacant building (the “Building”), which had been an operational factory until 2009.  O’Brien has described the Building as an “eyesore.”
  4. The Town of Templeton (the “Town”) has never had a town hall.  In 2009, the Town formed a Municipal Building Study Committee (“the Committee”) to look into whether the Town could afford to buy a building to be used as its town hall, and to develop specifications for a Request for Proposals (”RFP”) to identify a suitable building the Town could purchase for that purpose. 
  5. In 2009, O’Brien became a member of the Committee. 
  6. The Committee, including O’Brien, met with an architect who determined that the town needed a town hall with at least 12,000 square feet of space in order to accommodate the Town’s offices.
  7. In 2010, the Committee, including O’Brien, gave the specifications to the BOS for it to use in drafting an RFP.  In or around spring 2010, the BOS, including O’Brien, drafted, voted upon and issued the RFP to identify a suitable building within the Town that the Town could purchase containing at least 12,000 square feet. 
  8. The Town received four responses to the RFP proposing buildings for sale that were potential sites for the town hall, including the Building, which was exactly 12,000 square feet.
  9. Of the four responses to the RFP, the only one that met the RFP’s specifications was the one that proposed the Building.
  10. The Committee, including O’Brien, voted to recommend at the 2010 Town Meeting that the Town purchase the Building.
  11. The 2010 Town Meeting approved the purchase of the Building, and the Town, through the BOS, eventually purchased the Building, with the deed being transferred to the Town on November 1, 2010. 
  12. As a member of the BOS, O’Brien signed several of the required purchase and sale documents regarding the Building, including, but not limited to, the acceptance of the deed, and O’Brien voted to authorize payment of roughly $400,000 for the Building. 
  13. The Town planned to renovate the Building’s interior and improve the look of the Building’s exterior. 
  14. O’Brien never disclosed formally or informally to the Committee or to the BOS that the O’Brien Family Home was directly across the street from the Building.  However, according to O’Brien and the Committee chairman, who was also the BOS chairman, the Committee members and the BOS members knew that the Building was across the street from the O’Brien Family Home.
  15. The Town, for financial reasons, never renovated the Building, or moved the Town’s offices into the Building.  The Town is currently in the process of selling the Building.  The Building has remained vacant since 2009.

Conclusions of Law
Section 19

  1.  Except as otherwise permitted,[1] § 19 of G.L. c. 268A prohibits a municipal employee from participating[2] as such an employee in a particular matter[3] in which, to his knowledge, he or an immediate family member[4] has a financial interest.[5]
  2. As a Selectman and as a Committee member, O’Brien was a municipal employee within the meaning of § 19. 
  3. The Town’s decision to acquire an existing building to use as its town hall was a particular matter. 
  4. O’Brien participated as a municipal employee in the Town’s decision to acquire an existing building to use as its town hall, as a Committee member and/or as a Selectman, by:  (1) drafting the RFP specifications; (2) voting upon and issuing the RFP; (3) voting to recommend the purchase of the Building by the Town at Town Meeting; and (4) signing the purchase and sale transaction paperwork.
  5. Because it is located directly across the street from the O’Brien Family Home, the Building is an abutting property to the O’Brien Family Home.[6]
  6. The Commission will presume that a property owner has a financial interest in matters affecting abutting property unless the property owner rebuts the presumption with competent evidence, showing that the matter will not affect the property owner’s financial interest.[7]  O’Brien failed to provide any evidence to rebut this presumption.
  7. Moreover, O’Brien knew that he and his wife as holders of a life estate in the O’Brien Family Home, and his three adult children as beneficiaries of the Trust, had a financial interest in the town’s 2010 purchase of the Building because he knew that the renovation and improvement of the empty former factory building across the street from the O’Brien Family Home for use as a town hall would affect the value of the O’Brien Family Home.  Given O’Brien’s description of the Building as an “eyesore,” it is evident that O’Brien and/or his immediate family had a positive financial interest in the Town’s decision to purchase, renovate and improve the Building, which would eliminate the existing eyesore directly across the street from the O’Brien Family Home and positively affect the value of the O’Brien Family Home. 
  8. Even if, as O’Brien claimed, the impact of the Town’s decision on the value of the O’Brien Family Home would be a negative one due to the amount of traffic a town hall would bring to his neighborhood, O’Brien still knew that he and/or his immediate family had a financial interest in the Town’s decision to buy and renovate the building.  The Commission has found that a negative financial interest is a financial interest for § 19 purposes.
  9. Therefore, at the time of his participation in the Town’s decision to purchase and renovate an existing building for use as its town hall, O’Brien knew that he and/or his immediate family members had a financial interest in that decision.                     
  10. Accordingly, by, as described above, participating as a Committee member and/or Selectman in a particular matter in which he knew that he, his wife and/or their three adult children had a financial interest, O’Brien violated § 19.

Resolution

In view of the foregoing violation of G.L. c. 268A by O’Brien, 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 O’Brien:

(1)          that O’Brien pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $1,000 as a civil penalty for violating G.L. c. 268A, § 19;

(2)          that O’Brien waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement; and

By signing below, Dennis O’Brien acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to all of the terms and conditions therein.

STATE ETHICS COMMISSION

//signed//                                  Date
Dennis O’Brien                       6/19/13

//signed//                                  Date
Karen L. Nober                       7/25/13
Executive Director

 

 

[1] None of the exemptions applies.
[2] “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.  G.L. c. 268A, § 1(j).
[3] “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.  G.L. c. 268A, § 1(k).
[4] “Immediate family” means the employee and his spouse, and their parents, children, brothers and sisters.  G.L. c. 268A, § 1(e).
[5] “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.  EC-COI-84-96.
[6] Commission Advisory 05-02: Voting on Matters Affecting Abutting or Nearby Property, considers property that is directly across the street from a property to be abutting property.
[7]See Commission Advisory 05-02.