Public Enforcement Letter 89-3


Mr. Joseph Zeneski

Dear Mr. Zeneski:

As you know, the State Ethics Commission has conducted a
preliminary inquiry regarding information that, as the director of
the Mansfield Department of Public Works, you may have reviewed
work submitted by Dunn Engineering, Inc. (Dunn Engineering) while
you had an offer of employment pending with that company. The
results of our investigation (set forth below) indicate that the
state conflict of interest law (G.L. c. 268A) appears to have been
violated in this case. Nevertheless, in view of certain mitigating
factors (also discussed below), the Commission does not feel that
further proceedings in this matter are warranted. Rather, the
Commission has determined that the public interest would be better
served by disclosing the facts revealed by our investigation and
explaining the application of the law to such facts, trusting that
this advice will ensure your future understanding of and compliance
with the conflict of interest law. By agreeing to this public
letter as a final resolution of this matter, the Commission and you
are agreeing that there will be no formal action against you and
that you have chosen not to exercise your right to a hearing before
the Commission.

I. The Facts

1. You are the former Public Works Director and Town Engineer
for the Town of Mansfield. You were appointed by the Mansfield
Town Manager in April, 1983 and served until October, 1985, at a salary
range of $30,000 to $32,000 a year. As the Public Works Director
and Town Engineer, you were responsible for water, sewer, street
design, maintenance and subdivision plan review for the Mansfield
Planning Board (Planning Board). You resigned your municipal
position effective September 30,1985 and joined Dunn Engineering
one week later.

2. Dunn Engineering is a civil engineering and surveying company
based in Foxboro. You are presently employed by Dunn Engineering
at its office in Uxbridge.

3. You have stated to us that you approached James Dunn (Dunn),
the owner of Dunn Engineering, concerning employment on Labor Day,
September 2,1985. At that point, you and Dunn met for lunch to
discuss the possibility of your employment with Dunn Engineering.
You said that you received a formal offer of employment from Dunn
Engineering on September 6, 1985. You signed Dunn Engineering's
offer and returned it to Dunn on September 16,1985, accepting the
offer. According to you, on or about September 16,1985, you
submitted a letter of resignation to the Mansfield Town Manager
that was effective September 30, 1985. The letter did not disclose
your plans to join Dunn Engineering. You did not otherwise disclose
to the Town Manager

Page 367

or any other town officials, prior to your leaving municipal
employment, your plans to join Dunn Engineering.

The Pratt Street Sewer Connection

4. According to you, in 1985 a family on Pratt Street, Mansfield
(the family) desired to build a new wing on their home that would
encroach upon their septic system's leaching field. Accordingly,
the family planned to hook up to the town sewer. According to you,
because the town sewer line which the family needed to connect with
was not in front of their house, the family's sewer pipe had to
leave their property at an angle, which presented some problems.
Dunn Engineering did the engineering work on the family's project,
and Dunn Engineering employee and vice-president John Parmentier
(Parmentier) represented the family at meetings before town boards
concerning the project.

5. You said that you originally approved the family's sewer
connection on July 24,1985.[1] You rescinded your approval of the
proposed sewer connection permit application on September 4,1985.
You said that you initially did not give the family's connection
much thought; but shortly thereafter, there were problems with
other sewer connections in town, including one on Pratt Street.
According to you, effluent was backing up into the cellar of a home
on Pratt Street, and the owner charged that it was the town's
responsibility to clean up the mess and repair the sewer
connections. You said that, with these problems in mind, you
rescinded the family's permit so you could give the project more
thought. You said that when you began studying the family's hook-
up, you noticed that there was a gas main running near the sewer
pipe that did not allow the recommended 1% to 2% slope for the
sewer pipe. You said you recommended that the family install a
grinder-pump in the sewer line to overcome this slope problem.
According to you, the grinder pump would have cost the family
approximately $3,000. You said the family did not want to install
the grinder pump and wanted the town to accept the liability for
their sewer connection.

6. On September 4,1985, the still-unresolved issue of the
family's sewer connection was raised at the Selectmen's meeting,
and it was decided that the Selectmen would meet with the family,
town counsel and you at their next meeting to settle the matter.
The Selectmen's next meeting was on September 11,1985, and you
attended. The family was represented at the meeting by Parmentier
of Dunn Engineering. You stated at this meeting that your first
concern about the proposed connection was the slope of the sewer
pipe, and your second concern was the pipe's length. You told the
Selectmen that you still, as previously, recommended the use of a
grinder pump, which you said would be more expensive. After a
recess to discuss a proposal that the family agree to maintain the
connection and bear the cost of a second (replacement) connection
to the main sewer line if it were extended to a point where a
better connection could be made, Parmentier suggested that the
family be allowed to use an .8% slope, with pea gravel around the
pipe as insulation, According to the minutes, you felt the new
slope (.8%) was close enough to the minimum to be allowed. You
recommended that the family agree to have their engineer (Dunn
Engineering) on site when the installation was done so that the
engineer could certify that plans were followed. The Selectmen
adopted this recommendation. In addition, the Selectmen conditioned
their approval on the family agreeing to waive any claim against
the town for the freezing of the sewer line and that they would
hook up to the main sewer line if it were extended up Pratt Street.
The Selectmen then voted four to one to approve the family's sewer
connection.

7. According to Dunn, Dunn Engineering lost money on the family
project because the negotiations that took place required the firm
to perform revision work for the family for which the firm did not
charge.

Hallet Crossing I Subdivision

8. On August 21, 1985, Dunn, as President of Dunn Engineering,
submitted to the Planning Board, on behalf of the developer Walmark
Corporation (Walmark), documents constituting an application for
the approval of a residential subdivision off Fruit Street in
Mansfield, subsequently designated as Hallet Crossing I. You there-
after reviewed this subdivision plan at the Planning Board's
request as Mansfield Director of Public Works.

9. On September 3, 1985, Parmentier,as Vice President of Dunn
Engineering, submitted to you, as Director of Public Works, a
drainage plan for the Hallet Crossing I subdivision. You
subsequently reviewed this drainage plan as the Director of Public
Works.

10. On September 13,1985, you sent a memorandum to the Planning
Board in which you made four comments on the Hallet Crossing I
subdivision. First, you recommended that the road for the
subdivision use the street section approved by the Planning Board
for use for minor streets" (allowing a 24 rather than 30 foot
width). Second, you observed that the plan should show that the
sewer is existing. Third, you stated that the water main need only
be eight inches in diameter. Fourth, you recommended the
installation of a fence along the sub division property line to
prevent easy access to the subdivision by off-road vehicles. In a
separate memorandum to the Planning Board, also dated September
13,1985, you made recommendations concerning the drainage plan for
Hailet Crossing I. You recommended that a
predevelopment/postdevelopment comparison of total runoff and rates
should be presented" and that the board should consider the overall
impact of the proposed project.

11. On September 25, 1985, there was a public hear-

Page 368

ing before the Planning Board concerning the Hallet Crossing I
definitive subdivision plan. Dunn personally made the presentation
for Walmark at this hearing. You attended this hearing and
commented on the rebuilding of Fruit Street, the length of the
Hallet Crossing I subdivision road, and the location of the Hallet
Crossing I subdivision. There apparently was no public opposition
to Walmark's plan at the meeting. The Planning Board took no action
on Hallet Crossing I at the September 25, 1985 hearing.

12. Subsequently, by letter dated October 4,1985, the Planning
Board informed Walmark that it had some concerns with the Hallet
Crossing I definitive subdivision plan, including '"[t]he comments
from the DPW Director, dated September 13,1985." A copy of your
September 13,1985 memorandum to the Planning Board was attached to
the letter. The letter further informed Walmark that "[t]he
Planning Board requests that you address these concerns and submit
a revised plan to the Board for further review."

13. In response to the Planning Board's directive, Dunn
Engineering made revisions to the Hallet Crossing I plan. On
October 30,1985, the Planning Board approved the subdvision plan.
On November 23,1985, Dunn Engineering billed Walmark an additional
$2,355 for work on Hallet Crossing I, including $554 for "October
29-30, 1985, changes to subdivision plan prior to Planning Board
signatures.

II. The Conflict Law

As the Director of the Mansfield Department of Public Works, you
were a municipal employee for the purposes of the conflict of
interest law, G.L. c. 268A.


In pertinent part, G.L. c. 268A, s.19(a) prohibits a municipal
employee from participating[2] as such in any particular matted in
which he knows an organization with which he is negotiating or has
any arrangement concerning prospective employment has a financial
interest. Accordingly, your participation as a municipal
employee in official matters concerning Dunn Engineering raised conflict of
interest issues once you began negotiating with Dunn Engineering
regarding prospective employment.

The evidence developed shows that, during the three-week period
between your receiving a job offer from Dunn Engineering on
September 6,1985 and your leaving municipal employment on September
30,1985, you took official action concerning projects on which Dunn
Engineering had performed engineering services. Whether your
actions violated s.19 turns on whether your participation was
"personal and substantial" as required by s.1(j) and on whether
Dunn Engineering had a financial interest in each particular matter
in which you participated.

Your actions on September 11,1985 concerning the Pratt Street
sewer permit application related directly to Dunn Engineering's
work and were substantial in nature, In making recommendations to
the Selectmen as to the adequacy of the .8% slope proposed by Dunn
Engineering and the conditions under which the permit application
would be approved, you participated personally and substantially,
as DPW Director, in the process by which the Selectmen decided to
approve the family's permit request. The family's application's
approval with conditions was a particular matter in which Dunn
Engineering had a financial interest. Dunn Engineering's financial
interest was clearly implicated by the approval condition
(recommended by you and adopted by the Selectmen) that the family
agree to have their engineer (Dunn Engineering) present while the
sewer line was installed. This condition would (unless the family
changed engineers) obviously result in Dunn Engineering performing
additional services for the family, to the company s gain or loss
(depending on whether it received payment for the services).
Accordingly, you appear to have violated s.19 on September 11,1985.

Similarly, your September 13, 1985 recommendations to the
Planning Board concerning the Hallet Crossing I subdivision
amounted to personal and substantial participation by you in the
Planning Board's consideration and approval of the subdivision.
Acting as Public Works Director, you interjected yourself into the
Planning Board's process of making a decision concerning the
subdivision by making recommendations concerning substantive
changes to the plans which you believed the board should require
for their approval. Additionally, to the extent they were adopted
by the Planning Board,your recommendations resulted in revisions
and/ or additions to the subdivision plans by Dunn Engineering for
which Dunn Engineering charged its client. Thus, in making the
recommendations regarding Hallet Crossing I, you participated
personally and substantially in a particular matter in which Dunn
Engineering had a financial interest. Accordingly, you appear to
have violated s.19 on September 13,1985.

Although you appear to have violated G.L. c. 268, s.19 on
September 11 and 13, 1985, the Commission has decided that this
case does not warrant the initiation of formal adjudicatory
proceedings because:

1. Dunn Engineering's financial interest in the matters in which
you participated on September 11 and 13,1985, while sufficient for
s.19 purposes, was indirect and, under the circumstances,
relatively small;

2. the facts do not show that the public interest was
compromised by favoritism on your part towards Dunn Engineering;

3. there is no evidence that your motivation in acting as you
did was other than to act in what you in good faith believed to be
the public interest; and

4. you have fully cooperated in the Commission's investigation
of this matter and have provided all infor-

Page 369

mation requested.

The Commission's decision to allow you to resolve this matter
with a public enforcement letter, however,' should not be construed
as indicating that it does not consider the issues raised by your
conduct to be serious. Section 19 ofG.L. c. 268A, like many other
sections ofthe conflict law, is intended to prevent any questions
arising as to whether the public interest has been served with the
single-minded devotion required of public employees. This concern
is compounded when, as was the case here, the employee does not
disclose to his appointing official the private employment
arrangements he has made. Had you made such a disclosure, the Town
Manager, pursuant to the law, could have made a determination
whether or not to permit you to continue to participate in matters
concerning Dunn Engineering.

III Disposition

Based on its review of this matter, the Commission has
determined that the sending of this letter should be sufficient to
ensure your understanding of the law. This matter is now closed.
Thank you very much for your cooperation. If you have any
questions, please contact me at 727-0060.

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

[1] The minutes of the Selectmen's meeting on July 24,1985 indicate
that a condition of your approval of the connection was that a 1%
minimum slope of the sewer line would be maintained. The minutes
further show that the Selectmen did not approve the connection at
this meeting but rather voted to table the matter in order to give
town counsel the opportunity to review the legal issue of who would
be responsible for the sewer connection in the event of future
problem.

[2] "Participate," participate in agency action or in a particular
matter personally and substantially as a state, county or municipal
employee, through approval, disapproval, decision, recomendation,
the rendering of advice, investigation or otherwise.

[3] "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 organitations, powers, duties, finances and
property.