Docket No. 327

In the Matter of Clarence D. Race

February 3, 1988

Decision and Order



Appearing:

Marilyn Lyng O'Connell, Esq.
Stephen P. Fauteux, Esq. Counsel for
Petitioner


Alan J. Rilla, Esq.
John J. McQuade, Esq. Counsel for
Respondent

Commissioners:

Diver, Ch., Basile, Epps, Gargiulo, Jarris


Page 329

I. Procedural History

The Petitioner initiated these adjudicatory proceedings on March
13, 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 Clarence D. Race (Respondent) had violated
G.L. c. 268A, s.19[1] on November 8, 1983 by requesting, by letter
and as Chairman of the Egremont Board of Selectmen, that the
Deparment of Environmental Quality Engineer (DEQE) review a
particular set of septic plans in which the Respondent and his
immediate family had a financial interest.

The Respondent's Answer raised a statute of limitations defense
and denied that Respondent personally and substantially
participated in a matter in which he knew he or his family had a
financial interest in violation of s.19.

In lieu of a hearing, the parties stipulated to the relevant
facts. The parties filed briefs and presented oral arguments before
the Commission on January 6, 1988. In rendering the Decision and
Order, the Commission has considered the evidence and arguments of
the parties.

II. Findings of Fact

1. Respondent is a member ofand chairman ofthe Egremont Board
of Selectmen and has been since 1981.


2. In 1980, Respondent formed Egremont Contractors, Inc., a
family owned business engaged primarily in the construction of
single family homes. At all times relevant hereto, Respondent's
son, Thomas Race, has been the president and chief operating
officer of the corporation. Also at all times relevant hereto,
Respondent, his wife, Thomas Race and one other son were the sole
owners of the corporation.

3. In September, 1980, Respondent, his wife and two sons
purchased a 5.8 acre parcel of land located on Mt. Washington Road
in Egremont for $8,000. The land was purchased as a valid building
lot with satisfactory percolation test.

4. In the fall of 1983, the Races agreed to sell the Mt.
Washington Road property to Lindsey Crawford for $12,000. There was
no formal purchase and sale agreement nor another written
agreement, although in the fall of 1983 (and prior to November,
1983) Lindsey Crawford gave Respondent a $1,000 deposit on the
property.

5. On October 31, 1983, a registered engineer performed a
percolation test on the Mt. Washington Road property and designed
a septic system. The chairman of the Egremont Board of Health
reviewed the percolation test results and system design and
requested that the president of the privately owned South Egremont
Water Company also review the test results and system design
because the property was within the watershed. The water company
president then requested an opinion from the State Department of
Environmental Quality and Engineering (DEQE) as to whether this
system conformed to Title 5 of the State Sanitary Code.

6. On November 8, 1983, Respondent met with the Chairman of the
Egremont Board of Health at the Egremont Town Hall. Also present
were Thomas Race and Mary Brazie, the Selectman's secretary. A
discussion ensued concerning the request by the president of the
Egremont Water Company for an opinion from the DEQE as to whether
the system, as designed, complied with the requirements of Tide 5
of the State Sanitary Code. It was decided that the request be made
in writing and that it be signed by Respondent, in his capacity as
Chairman of the Egremont Board of Selectmen, to elicit a prompt
reply.

7. In the letter to the DEQE, dated November 8, 1983, Respondent
enclosed for its review the engineer's plans for a septic system
on the Mt. Washington Road property which his family intended to
sell to Lindsey Crawford. Respondent informed DEQE in this letter
that at least nine homes had been built in the watershed area. The
letter included a post-script signed by the Chairman of the
Egremont Board of Health which indicated his approval on behalf of
the Board of Health of the system design. DEQE responded to the
November 8, 1983 letter by letter dated November 18, 1983.

8. On December 2, 1983, Thomas Race, on behalf of Egremont
Contractors, Inc., applied for a permit to construct a sewage
disposal system on the Mt. Washington Road property. The permit was
approved on December 15, 1983.[2]

9. The sale of the property became final by deed dated January
30, 1984. Respondent's share ofthe profits in the sale amounted to
less than $1,000.

10. On February 10, 1984, Lindsey Crawford applied for and
received a building permit, in which he listed Egremont Contractors
as the contractor. The estimated cost of the construction was
listed at $35,000.

11. Egremont Contractors, Inc. did not participate in the
construction of the house or the sewage disposal system on the
parcel purchased by Lindsey Crawford.

Page 330

III. Decision

For the reasons stated below, the Commission concludes that the
Order to Show Cause was issued in a timely fashion and that
Respondent violated G.L. c. 268A, s.19.

A. Statute of Limitations

1. Sufficiency of Affidavits

The Commission has promulgated a regulation concerning the
assertion of a statute of limitations defense. 930 CMR 1.02(10)
(c). When a statute of limitations defense has been asserted,
Petitioner has the burden of showing that a disinterested person
learned of the violation no more than three years before the order
was issued. Petitioner has submitted the affidavits of Ms. Gallant,
Mr. Roberto, and Mr. Krant to satisfy this burden.

Respondent claims that District Attorney Roberto's affidavit is
legally deficient because it fails to explain whether such a
complaint has been received and fails to speak with certain
clarity. We decline to adopt a reading of 930 CMR 1.02(c) (2) that
would require District Attorney Roberto to have left no stone
unturned in his efforts to determine if such a complaint had been
filed. The regulation at issue does not appear to have contemplated
any such requirement even when, as here, there are no complaint
files to search. District Attorney Roberto's assertion that such
a complaint would have been brought to his attention and his lack
of recollection of such a complaint, coupled with his consultation
with present and former staff who similarly had no recollection of
such a complaint, is sufficient.

The second claim is related to the first. District Attorney
Roberto stated what efforts he made to ascertain whether a
complaint had been filed. His conclusion, at each stage of his
inquiry, was that no complaint had been made. This also satisfies
the requirements of 930 CMR 1.02(c) (2), as applied reasonably to
the situation where no complaint files are kept.

2. General Knowledge in the Community

930 CMR 1.02 (10) (d) (1) provides that if the Petitioner meets
his burden under 930 CMR 1.02(10) (c),the Respondent will prevail
on his statute of limitations defense only if he shows that more
than the three (3) years before the order was issued the relevant
events were a matter of general knowledge in the community.
Respondent argues that the facts that four people were present at
the Selectmen's office on November 8, 1983, when the letter which
is the subject of the Order to Show Cause was signed, that a deed
evidencing Respondent's (and his family's) ownership interest in
the subject property was recorded at the Registry of Deeds, that
a design for a sewage disposal system was prepared and percolation
test was conducted on the subject property by engineer George
Adote, that the water company president received a copy of the
November 8, 1983 letter and then wrote a letter to the Board of
Selectmen and the Board of Health (November 26, 1983), and that
certain officers of the water company may have been aware of that
November 26 letter as well, all indicate that, in a town with a
population of approximately 1,300, the matter was of general
knowledge in the community.

Not all of the people listed above knew enough of the relevant
events to be described as members of the community who knew about
the relevant events. Respondent, for example, makes no claim that
the selectmen (other than Respondent) knew that Respondent's family
owned the property which was a subject of dispute. The fact that
Respondent, as a Selectman, knew the relevant facts is irrelevant.
Nantucket v. Beinecke, 579 Mass. 345,350 (where the court refused
to attribute the knowledge of the defendant municipal employees to
the municipality being wronged by their acts). Neither the letter
of November 8, 1983 nor the letter of November 26, 1983 refers to
Respondent and his family's financial interest in the subject
property. Moreover, this crucial relevant fact was not known by
those listed above. We conclude, therefore, that the relevant facts
were not a matter of general knowledge in the community.

B. Substantive Violation

There is no dispute that as a member of the Egremont Board of
Selectmen, 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.


There is also no dispute that the November 8, 1983 request to
DEQE to review the septic plans was a particular matter as that
term is defined in G.L. c. 268A, s.1(k). This definition includes
a bequest for a ruling or other determination."

Respondent argues that G.L. c. 268A, s.1(j) requires personal
and substantial participation and that this requirement was not met
by the November 8, 1983 request to DEQE. He contends that the
letter was a ministerial act that did not directly affect a
particular matter and that the letter neutrally conveyed another's
request for review to DEQE. Petitioner responds that Respondent
both requested DEQE review and suggested the result which DEQE
should reach.

We conclude that Respondent's sending of the letter as Chairman
of the Board of Selectmen amounted to personal and substantial
participation as defined in G.L. c. 268A, s.1(j). Respondents
contention that his was a ministerial act fails here because,
although not every

Page 331


action by a public official will satisfy the substantiality
requirement, In the Matter of John R. Hickey, 1983 Ethics
Commission 158 at 159, this was more than a pro forma act. "For
purposes of s.19, 'participation' is not limited to discretionary
and/or final decisions." In the Matter of George Najemy, 1984
Ethics Commission 223 at 224. The November 8, 1983 letter's
inclusion of information about other, obviously acceptable,
completed septic plans in the area is clear evidence that this was
not merely a ministerial act by Respondent.

We conclude that the financial interests of Respondent and his
immediate family in the November 8, 1983 letter were both obvious
and reasonably foreseeable. Respondent knew of the agreement to
sell the lot to Mr. Crawford and of Mr. Crawford's intent to build
a house on the property. Respondent and his immediate family had
a financial interest as owners ofthe parcel and as prospective
sellers of the parcel.

IV. Sanction

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 $2,000, we believe that the imposition of the
maximum fine is not warranted, This violation involved less
attempted and less actual affect on a particular matter than is
found in some Commission precedent on s.19 violations. See, In the
Matter of Paul A. Bernard, 1985 Ethics Commission 226 (violation
of s.19 by member of planning board who approved and signed a plan
when he was also privately acting as a real estate broker for the
sale of the property involved).

Respondent's personal profit from this particular matter was
less than $1,000. There was no large personal stake here. His
personal participation did not have a determinative effect on
DEQE's decision. His participation was an attempt to effect DEQE's
decision on a disputed matter, however. Respondent's act was not
ministerial and not neutral. Therefore, a fine reflecting these
ficts is appropriate.

V. Order

On the basis of the foregoing pursuant to its authority under
G.L. c. 268B, s.4, the Commission orders Respondent to pay two
hundred and fifty dollars ($250.00) to the Commission as a civil
penalty for violation of G.L. c. 268A, s.19.

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

[1] "...a municipal employee who participates as such an employee
in a particular matter in which to his knowledge he, his immediate
family or partner, a business onganization in which he is serving
as officer, director, trustee, partner or employee, or any person
or onganization with whom he is negotiating or has any arrangement
concerning prospective employment has a financial interest, shall
be punished by a fine of not more than three thousand dollars or
by imprisonment for not more than two years, or both." G.L. c.
268A, s.l9.

[2] When a statute of limitations defense has been asserted, the
Petitioner will have the burden of showing that a disinterested
person earned of the violation no more than three (3) years before
the order was tssued. The burden will be satisfied by: (1) an
affidavit from the investigator currently responsible for the case
that the Enforcement Division's complaint files have been reviewed
and no complaint relating to the violation was received more than
three (3) years before the order was issued, and (2) with respect
to any violation of M.G.L,. c. 268A other than 23. affidavits from
the Department of the Attorney General and the appropriate Office
of the District Attorney that, respectively, each office has
reviewed its files and no complaint relating to the violation was
received more than three (3) years before the order was issued, or
(3) with respect to any violation of M.G.L. c. 268A, 23, an
affidavit from respondent's public agency that the agency has
reviewed its files and the agency was not aware of any complaint
relating to the violation more than three (3) years before the
order was issued.

[3] G.L. c. 268A, s.1(k) defines "particular matter" as any
judicial or other proceeding. application, submission, request for
a ruling or other determination, contract, claim, controversy,
charge, 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.

[4] Commissioners Basile and Jarvis concur with the conclusions of
this Decision and Order regarding the violation of 19 but believe
that the publicity of this finding, without a fine, is a sufficient
sanction under these circumstances.