Docket No. 452

In the Matter of Robert F. Sheehan, Jr.

October 6, 1992

Disposition Agreement


This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Robert F.
Sheehan, Jr. (Mr. Sheehan) pursuant to Section S 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 February 19, 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 Mr.
Sheehan. The Commission has concluded its inquiry and, on June
16, 1992, found reasonable cause to believe that Mr. Sheehan
violated G.L. c. 268A.

The Commission and Mr. Sheehan now agree to the following
findings of fact and conclusions of law:

1. Mr. Sheehan was, during the time here relevant, a Board
of Health (BOH) member in the town of Granby. As such, Mr.
Sheehan was a municipal employee as that term is defined in G.L.
c. 268A, s.1.

Repair Percolation Tests

2. Among other public health issues, the BOH oversees town
septic system matters. BOH approval is necessary at several
stages in the construction of a new septic system and the repair
of an existing one.

3. The state environmental code requires that contractors
locate septic systems in suitable soil. Consequently, engineers
must conduct soil percolation tests to measure imperviousness.
The environmental code mandates that a BOH representative witness
percolation tests. Absent a successful percolation test, the BOH
cannot approve an application for a disposal works permit for the
construction of a septic system.

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4. When an existing septic system fails, the code requires
that a property owner conduct new or "repair" percolation tests
before installing a new system. A BOH representative must witness
these repair percolation tests. Following a successful repair
percolation test, a land owner or developer hires an engineer to
design the septic system (in some instances, however, the
engineer has already designed the system). Conversely, there is
no need for engineering design services when a property has
failed a percolation test. In Granby, land owners and developers
usually retain the same engineer who performed the percolation
tests to provide the design services.


5. Mr. Sheehan's father, Robert Sheehan, Sr., is a
registered professional engineer whose company, R.F. Sheehan
Associates, performs engineering work involving septic systems in
Granby. Typically, Sheehan Sr.'s fee for engineering services for
repair septic systems is between $300 and $400.

6. Upon joining the BOH in 1987, Mr. Sheehan sought advice
from town counsel as how to avoid conflicts of interest presented
by his father's business. Town counsel correctly advised Mr.
Sheehan to abstain from voting on BOH matters affecting his
father's company,[1] but neglected to inform him also to refrain
from conducting field inspections of R.F. Sheehan Associates'
work.[2]

7. During the period from January 1, 1990 to August 1,
1990, Mr. Sheehan officially witnessed eleven repair percolation tests
conducted by R.P. Sheehan Associates.

8. General Law chapter 268A, s.19 prohibits[3] a municipal
employee from participating as such in a particular matter[4] in
which to his knowledge a member of his immediate family has a
financial interest.

9. By witnessing the percolation tests, Mr. Sheehan
participated[5] in particular matters.

10. At the time he witnessed the percolation tests, Mr.
Sheehan was aware that engineers who conducted percolation tests
were usually retained to design the anticipated septic systems.
Therefore, Mr. Sheehan knew his father had a financial interest
in the percolation tests.

11. By witnessing the percolation tests, Mr. Sheehan
participated as a municipal employee in particular matters in
which to his knowledge an immediate family member[6] had a
financial interest, thereby violating s.19.

12. The Commission found no evidence that Mr. Sheehan was
improperly influenced in his review of the percolation tests, or
that he misrepresented test data. Since the witnessing of repair
percolation tests necessarily involves land that has already been
subject to prior successful percolation tests, there was a great
likelihood that the eleven tests would be successful. In
addition, other BOH members independently reviewed the eleven
percolation test results before issuing the respective disposal
works permits.

13. Given town counsel's limited advice, the evidence also
indicates Mr. Sheehan was unaware he was violating the conflict
of interest law when he witnessed the eleven tests.[7]

Top Soil/Sub Soil Inspection

14. The state environmental code mandates that a septic
system be located at least four feet above the water table or
ledge formations. Whenever a septic system is engineered so that
fill material must be added to create a four-foot layer beneath
the system, the code requires that the installer use clean
granular material free from impervious material to surround the
system in a ten foot radius in all directions. A BOH
representative ensures this requirement is satisfied by
conducting a topsoil/subsoil inspection of the material
surrounding the system.

15. A septic system installation may require anywhere
between 300 and 1500 yards of clean material. Generally, clean
fill costs between $4.00 and $7.00 a yard.

16. From April 1990 to December 1990, Mr. Sheehan was
employed by contractor Greg Orlen as an equipment operator.
During this time period, Mr. Sheehan conducted one top soil/sub
soil inspection of a septic system installed by Orlen.

17. General Laws, c. 268A, s. 19 also forbids a municipal
employee from participating as such in a particular matter in
which to his knowledge a business organization in which he is
serving as an employee has a financial interest.

Page 606

18. By conducting the topsoil/sub-soilinspection, Mr.
Sheehan participated in a particular matter.

19. At the time he performed the inspection, Mr. Sheehan was
aware his employer could not complete the septic system
installation for his client without the topsoil/sub-soil
inspection approval. Therefore, Mr. Sheehan knew that his
employer possessed a financial interest in the inspection.


20. By conducting the topsoil/sub-soilinspection, Mr.
Sheehan participated as a municipal employee in a particular
matter in which to his knowledge his employer had a financial
interest, thereby violating s.19.

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

1. that Mr. Sheehan pay to the Commission the sum of five
hundred dollars ($500.00) as a civil penalty for violating G.L.
c. 268A, s.19; and

2. that Mr. Sheehan 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.

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[1] Mr. Sheehan has consistently abstained from BOH votes
involving his father's engineering business.

[2] Only written legal advice made a matter of public record
and filed with the Commission constitutes a valid conflict of
interest defense. See, e.g., 930 CMR 1.03(3); In re Burgess, 1992
SEC 570; In re Lavoie, 1987 SEC 286.

[3] Except as otherwise permitted in s.19. None of the
exceptions, however, are applicable here.

[4] "Particular matter," 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, s.1(k). The Commission has determined
that the witnessing of a percolation test is a particular matter.
See In re Lawrence, 1987 SEC 284, 285.

[5] "Participate," participate in agency action or m 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.1(j).

[6] "Immediate family," the employee and his or her spouse,
and their parents, children, brothers and sisters. G.L. c. 268A,
s.1(e).

[7] Ignorance of the law is no defense to a violation of the
conflict of interest law. See e.g. Scola v. Scola, 318 Mass. 1, 7
(1945); In re Burgess, 1992 SEC 570; In re Doyle, 1980 SEC 11,
13.

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