Docket No. 369

In the Matter of Arthur Tucker

June 2, 1989

Disposition Agreement




This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Arthur Tucker (Mr.
Tucker) pursuant to Section 11 of the Commission's Enforcement
Procedures. This Agreement constitutes a consented to final
Commission order enforceable in the Superior Court pursuant to G.L.
c. 268B, s.4(j).

On January 6, 1988, the Commission initiated, pursuant to G.L.
c. 268B, s.4(a), a preliminary inquiry into a possible violation
of the conflict of interest law, G.L. c. 268A, by Mr. Tucker. The
Commission has concluded that inquiry and, on November 21, 1988,
found reasonable cause to believe that Mr. Tucker violated G.L. c.
268A, s.19.

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

1. Mr. Tucker is and at all material times herein was the
building inspector for the Town of Oakham, commencing November,
1983. Mr. Tucker is, therefore, a municipal employee as defined
in s.1(g) of G.L. c. 268A. Mr. Tucker is also the full-time
building inspector for the Town of Spencer.

2. Since 1977, Mr. Tucker has owned and resides year-round on
Lots 16 and 17 on Pine Lane in Oakham. The area is a summer camp
area next to a lake. Mr. Tucker's house on Lot 17 contains three
bedrooms and has been converted to year-round use. Mr. Tucker's Lot
No. 17 directly abuts Lot No. 18, owned by Mr. John Lane.

3. Mr. Lane has owned Lots 18, 19,26 and 27 on Pine Lie in
Oakham (hereafter referred to collectively as the Property) since
1966. Mr. Lane's house, which straddles Lots 18 and 19, is the only
one

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in the neighborhood that has not been converted to year-round use.
There is a well on Lot 18.

4. Mr. Tucker can see Mr. Lane's house from his own, as the Lane
house is less than 40 feet from Mr. Tucker's.

5. Until sometime in 1983, a tenant resided in the house on the
Property. During this time, while an open cesspool leeched into
the surrounding ground, neither Mr. Tucker nor anyone else reported
this condition to the Oakham Board of Health. From 1983 until
January, 1986, the Property remained vacant.

6. In January, 1986, Mr. Tucker learned that Mr. Lane was
selling the Property. Mr. Tucker approached Mr. Lane and expressed
interest in purchasing the Property so that he could use the well
water, as his present well was shallow and had limited water
supply.[1] When Mr. Lane explained that he was considering selling
off the Property in two pieces (Lots 18 and 19 together, and its
26 and 27 together), each as buildable lots, Mr. Tucker told Mr.
Lane that he could have problems if he did that (presumably because
the lots would not satisfy the zoning requirements)[2] Mr. Tucker
did not approach Mr. Lane as the building inspector. No offer was
made, and there was no further discussion about a possible
arrangement between the two after that date.

7. On or about January 30, 1986, Mr. Lane sold Lots 18 and 19
to a Mr. Alfred LaPrade.

8. Mr. Tucker learned of the sale, and, in his capacity as
Building Inspector,[3] on or about February 10, 1986, told the
Oakham Board of Selectmen (Selectmen) at their meeting that he
believed the sale to Mr. LaPrade had involved an illegal
subdivision. At that time, Mr. Tucker did not tell the Selectmen
of his having discussed purchasing the property with Mr. Lane.
(The Selectmen did not learn of this until a meeting on March 24.
See 14, below.) Mr. Tucker states, and the Commission has no
information to the contrary, that, because he was Mr. Lane's
abutter, he requested that someone other than he should issue the
zoning enforcement order.

9. Because Oakham is such a small town, the Selectmen knew the
proximity of Mr. Tucker's property to Mr. Lane's, although they
may not have known precisely how close Mr. Tucker's house was to
Mr. Lane's.

10. By letter dated February 17, 1986, the Selectmen notified
Mr. Lane that the sale to Mr. LaPrade violated Oakham zoning
regulations.

11. At a Selectmen's meeting on or about March 3, 1986, Mr.
Tucker, striving not to be directly involved because of the reasons
mentioned in 8, requested that the Selectmen visit Mr. Lane's
house on Pine Lane to see the condition of the property.

12. At a Selectmen's meeting on or about March 17, 1986, Mr.
Tucker explained that the house at Pine Lane appeared to have been
gutted and was being reconstructed, even though it remained an
illegal subdivision, in violation of the Selectmen's order, and
non-conforming use. He also told the Selectmen that no building
permit had been applied for. As a result of this report, the
Selectmen asked Mr. Tucker to issue a stop-work order to Mr.
LaPrade, which Mr. Tucker did on or about March 20, 1986.

13. On March 21, 1986, Mr. Tucker sent a letter, at the request
of the Selectmen, to Mr. LaPrade and Mr. Lane, stating that the
owner was violating the building code by beginning reconstruction
without a building permit, that the zoning problems remained, and
that the stop-work order would be in effect until a building permit
was obtained.

14. On or about March 24, 1986, in response to that stop-work
order, Mr. Tucker and Mr. Lane attended the Selectmen's meeting.
During the meeting, Mr. Lane told the Selectmen of his conversation
with Mr. Tucker in January, 1986 during which Mr. Tucker inquired
about buying Mr. Lane's property. The March 24, 1986 meeting was
the first time the Selectmen were told of Mr. Tucker's interest in
buying Mr. Lane's property.

15. On or about June 20, 1986, Mr. LaPrade deeded back Lots 18
and 19 to Mr. Lane because the lots, even when combined, were not
buildable.

16. By letter dated July 21, 1986, Mr. Tucker, as a private
citizen, wrote to the Board of Health, requesting that it inspect
the Property because it had been abandoned and left dangerous,
unsafe and unsanitary. Mr. Tucker mentioned problems with the
septic system, electrical and plumbing systems, bare interior
walls, unboarded windows and doors, scattered debris with nails
protruding, and with Mr. Lane's lack of effort to make the property
safe and secure.

17. On or about September 8, 1986; Mr. Tucker posted the
Property as being dangerous and unsafe, and notified Mr. Lane, in
writing, that he could receive a building permit to remodel the
Property, but must first receive Board of Health approval for his
existing septic system, repairs to it, or approval of a design for
a new system; otherwise he would have to demolish

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the structure. The letter demanded that Mr. Lane obtain a disposal
works construction permit and a building permit by December 31,
1986.

18. By letter dated December 17, 1986, Mr. Tucker explained to
Mr. Lane that his request to postpone the approval of a plan for
an existing or a new septic system until June, 1987 was merely an
attempt to stall.

19. By letter dated December 22, 1986, Mr. Tucker informed Mr.
Lane that Mr. Tucker had been informed of the Board of Health's
decision to allow him until June 1, 1987 to have a suitable sub-
surface sanitary disposal system designed, approved and installed.
Mr. Tucker, therefore, granted Mr. Lane an extension until June 1,
1987 to make the structure safe. By letter dated December 26, 1986,
the Board of Health informed Mr. Lane that, based on a December 6,
1986 inspection, the Board of Health wanted to see engineer-
prepared septic systems before March 1, 1987.

20. By letter dated March 6, 1987, in accordance with M.G.L. c.
143, s.8, Mr. Tucker asked the department heads of the Oaltham Fire
Department, Planning Board and Board of Health to convene an
impartial survey board to survey the house on the Property, to
determine if it was unused, uninhabited, abandoned, or especially
unsafe in case of fire, and to serve a report of the survey's
findings on Mr. Lane. Mr. Tucker suggested to the Selectmen that
the committee work independently of him.

21. Section 19 of G.L. c. 268A provides in relevant part that,
except as permitted by s.19,[4] municipal employees may not
partiupate as such in particular matters in which they have a
financial interest.

22. The particular matters were: (1) the decision that the sale
by Mr. Lane to Mr. LaPrade was an iliegal subdivision, (2) the
decision as to whether renovations could proceed without a disposal
works permit, and (3) the decision as to whether the property was
a public nuisance.

23. Mr. Tucker participated in these matters by, as the building
inspector, bringing them before the Selectmen, asking the Selectmen
to inspect the Property, issning stop-work orders, writing letters
to the owners concerning conditions on the Property, convening a
survey board, and posting the Property as being dangerous and
unsafe.

24. Mr. Tucker had an initial financial interest as a potential
purchaser and an ongoing financial interest as an abutter in these
matters.

25. Therefore, by participating as the building inspector in the
foregoing decisions while he had a financial interest in those
decisions, Mr. Tucker violated s.19.

26. While the Commission can impose up to a $2,000 fine for each
violation of s.19, it has determined that a relatively small fine
is appropriate for the following reasons:

the Commission staff found credible Mr. Tucker's assertions that
(1) because he was an abutter, he obtained the Selectmen's approval
for his actions as building inspector regarding the property; (2)
at all times subsequent to the March 24, 1986 Selectmen's meeting,
the Selectmen knew the full extent of Mr. Tucker's interest in the
Lane property; and (3) he was unaware that he was violating G.L.
c. 268A, s.19.[5]

Based on the foregoing facts, 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 agreed to by Mr. Tucker:

1.. that he pay to the Commission the amount of two hundred
fifty dollars ($250.00) as a civil penalty for his violation of
s.19;

2. that he refrain from participating as a municipal employee
in any matter in which he has a financial interest; and
specifically, that he refrain from participating, as a municipal
employee, in any matter that affects either the Lane property
on Pine Lane or any other property abutting Mr. Tucker's
property uniess he follows the procedure outlined in s.19(b) and
receives the written permission provided for therein; and

3. that he waive all rights to contest the findings of fact,
conclusions of law, and terms and conditions proposed under this
agreement in this or any related administrative or a judicial
civil proceeding in which the Commission is a party.

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[1] In fact, since March of 1986, Mr. Tucker has had to drill down
about 65 feet to get more water from his well, at a cost of
approximately $2,500. Mr. Tucker

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believed, on the other hand, that Mr. Lane's well was only six
feet below the surface.

[2] Under the zoning statute, c. 40A, each of the two resulting
lots would be too small. Indeed, the Property, consisting of all
four lots, was too small to qualify as a buildable lot under the
current zoning. Consequently, its grandfathered nonconforming
status could not be exacerbated by the sale of any portion of the
Property.

[3] Unless otherwise specified, Mr. Tucker's actions were performed
in his official capacity as Oakham Building Inspector.

[4] None of the s.19 exceptions applies to this case.

[5] Ignorance of the law is no defense to a violation of G.L. c.
268A. In the Matter of Joseph Doyle, 1980 SEC 11,13.