The State Ethics Commission ("Commission ") and Henry Richenburg ("Richenburg") 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 July 16, 2014, 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 November 20, 2014, the Commission concluded its inquiry and voted to find reasonable cause to believe that Richenburg violated G.L. c. 268A, §§ 19 and 23(b)(3).
The Commission and Richenburg now agree to the following findings of fact and conclusions of law:
Findings of Fact
1. Richenburg is a member of the Salisbury Board of Selectmen ("BOS"). As such, Richenburg is a "municipal employee" as that term is defined in G.L. c. 268A, § 1.
2. On March 14, 2013, Richenburg's son-in-law filed an application with the town for a general license to operate a business to raise and sell poultry and eggs (the "poultry business") on property adjacent to Richenburg's property. Richenburg's son-in law and daughter owned that property. Although not stated in the application, Richenburg's son-in-law's intention was to operate the poultry business in part on property owned by Richenburg. Richenburg understood that to be the case.
3. On the application, Richenburg's son-in-law identified himself as the sole proprietor; however, Richenburg's daughter was directly involved in the daily operation of the poultry business. Richenburg was aware of his daughter's involvement in the poultry business.
4. On March 25, 2013, Richenburg's son-in-law's license application came before the BOS. Richenburg advised the BOS that the Board of Health ("BOH") must approve the license prior to the BOS acting on the application. The BOS, including Richenburg, then unanimously voted to table consideration of the application until BOH approval was obtained.
5. On May 7, 2013, Richenburg's son-in-law obtained BOH approval for the poultry business.
6. On June 10, 2013, the BOS, including Richenburg, voted unanimously to approve Richenburg's son-in-law's license. Richenburg and the other BOS members signed the license.
7. Richenburg's daughter and son-in-law thereafter operated the poultry business on both Richenburg's and their property.
8. In January 2014, the BOS renewed Richenburg's son-in-law's license for the poultry business; Richenburg was aware of the conflict of interest issues and did not participate in that matter.
9. In April, 2014, the BOS granted Richenburg's son-in-law an amended license for the poultry business, changing the business address to Richenburg's property; Richenburg did not participate in that matter.
Conclusions of Law
10. 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 matter3 in which, to his knowledge, he or an immediate family member4 has a financial interest.
11. Richenburg's son-in-law's license application for the poultry business was a particular matter.
12. Richenburg participated in this particular matter as a BOS member on two occasions by: (1) on March 25, 2013, voting to table consideration of the application until BOH approval was obtained; and (2) on June 10, 2013, voting to approve and then signing the license for the poultry business.
13. Richenburg had a financial interest in the application as the poultry business was to operate: ( 1) on property abutting his property, see Advisory 05-02: Voting on Matters Affecting Abutting or Nearby Property; and (2) in part on Richenburg's property.
14. Richenburg's daughter is a member of Richenburg's immediate family.
15. Richenburg's daughter had a financial interest in the application for the poultry business license as she was directly involved in the poultry business and owned property on which the poultry business was to operate.
16. At the times he participated as described above, Richenburg knew that both he and his daughter had a financial interest in the particular matter.
17. Therefore, Richenburg violated § 19 each time he participated as a BOS member on the application for a license for the poultry business in which both he and his daughter had a financial interest.
18. Section 23(b)(3) of G.L. c. 268A 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 he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. The section further provides that it shall be unreasonable to so conclude if such employee has disclosed in writing to his appointing authority the facts which would otherwise lead to such a conclusion. Such disclosure must be made before taking any official action.
19. Richenburg's conduct violated § 23(b)(3) in two respects. First, as a BOS member, on March 25, 2013, Richenburg voted to table consideration of his son-in-law's poultry business license application until BOH approval was obtained. Second, on June 10, 2013, Richenburg voted to approve and then signed the license for the poultry business, despite his son-in-law's interest in the business. In so doing, Richenburg created the appearance of a conflict of interest, and behaved in a manner that would cause a reasonable person to conclude that his son-in-law could unduly enjoy Richenburg' favor in the performance of his official duties.
20. Richenburg did not file a disclosure to dispel this appearance of a conflict of interest. Therefore, in so acting, Richenburg violated G.L. c. 268A, § 23(b)(3).
In view of the foregoing violations of G.L. c. 268A by Richenburg, 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 to which Richenburg has agreed:
(1) that Richenburg pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of Two Thousand Five Hundred Dollars ($2,500) as a civil penalty for violating G.L. c. 268A, §§ 19 and 23(b)(3); and
(2) that Richenburg 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.
DATE ISSUED: March 3, 2015
1 None of the exemptions in § 19 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, § 1G).
3 "Particular matter" is defined, in part, as "any judicial or other proceeding, application, submission , request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision [or] determination . . . ." G.L. c. 268A, § l (k).
4 "Immediate family" means the employee and his spouse, and their parents, children, brothers and sisters. G.L. c. 268A, § l (e).