Former Rockland Planning Board Member Reginald Newcomb Fined $5,000 for Violating the Conflict of Interest Law
According to the Disposition Agreement, Newcomb was an elected member of the Planning Board. Planning Board positions have been designated as special municipal employee positions for conflict of interest law purposes. In his private capacity, Newcomb performs real estate construction and rehabilitation work.
In May 2006, Newcomb purchased two adjacent residential lots on Hingham Street in Rockland ("Hingham Street lots"). He subdivided one of the lots into two lots and built three duplex condominium units on the lots. In June 2006, Newcomb purchased a lot on Salem Street ("Salem Street lot") in Rockland. Newcomb then attempted to divide the Salem Street Property into two lots. The Hingham Street lots and the Salem Street lot were owned by the Rehab Realty Trust ("the Trust"). Newcomb is the sole trustee of the Trust, and he and his wife are the Trust's beneficiaries.
The Hingham Street lots came before the Planning Board for site plan review on four occasions between September, 2006 and February, 2007. On each occasion, Newcomb stepped down from the Planning Board and presented the site plan on behalf of the Trust. On March 5, 2007, a State Ethics Commission investigator contacted Newcomb about his presentations before the Planning Board. According to the Disposition Agreement, during that conversation, "Newcomb confirmed that he made the presentations on behalf of the Trust, acknowledged that the conflict of interest law prohibited him from doing so, and agreed not to further represent the Trust before the Planning Board." Notwithstanding this conversation, during the period March 21, 2007 through August 31, 2007, Newcomb continued to represent the Trust before the Planning Board, the Rockland Town Clerk, and the Rockland Zoning Enforcement Officer with respect to both the Hingham Street lots and Salem Street lot.
On March 21, 2007, Newcomb presented to the Planning Board a Form A application for the Salem Street lot, which was intended to demonstrate the inapplicability of the Subdivision Control Law to the property. The Planning Board has 21 days to act on a Form A application, or else the application is constructively approved. The Planning Board informed Newcomb that it would deny the application unless Newcomb provided sufficient information to address issues raised by Town Counsel. Newcomb, through counsel, provided the Planning Board with a written extension request, allowing the Planning Board until June 18, 2007, to act on the Form A application without constructive approval occurring. On June 13, 2007, the Planning Board denied the application.
On June 14, 2007, Newcomb requested that the Planning Board Chair allow him to access the Planning Board office to verify the date that he filed the Form A application. The Chair permitted him to do so solely for the purpose of checking the date on his application. Although not authorized to do so, Newcomb removed the file from the Planning Board office to make a copy, and then returned the file. A subsequent review of the file revealed that Newcomb's written extension request was missing. When asked to return the document, Newcomb instead produced a copy. Also on June 14, 2007, Newcomb met with the Town Clerk and requested a certificate of approval as to the Salem Street lot Form A application based on the Planning Board's failure to act on the application within the required 21 days.
Section 17(c) of the Conflict of Interest Law prohibits a municipal employee, otherwise than in the proper discharge of official duties, from acting as agent for anyone in connection with any particular matter in which the municipality is a party or has a direct and substantial interest. Section 17 applies less restrictively to special municipal employees. A special municipal employee is subject to § 17(c) only relative to a particular matter (a) in which he has participated, (b) which is or within one year has been a subject of his official responsibility, or (c) which is pending before his own agency. The applications for the Hingham Street lots and Salem Street lot were particular matters in which the Town of Rockland had a direct and substantial interest. Although Newcomb did not participate as a Planning Board member in these applications, they were subject to his official responsibility as a Planning Board member. As a result, § 17(c) prevented Newcomb from acting as agent for the Trust in connection with these applications. Newcomb's actions as agent for the Trust were not taken in the proper discharge of his official duties as a Planning Board member. Therefore, Newcomb repeatedly violated § 17(c).
Section 23(b)(2) of G.L. c. 268A prohibits a municipal employee from, knowingly or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions of substantial value not properly available to similarly situated individuals. Newcomb knowingly used his position as a Planning Board member to obtain unsupervised access to the Planning Board office so that he could remove his written extension request from the Planning Board file for the Salem Street lot. Where Newcomb removed the extension request in an attempt to gain constructive approval of his Form A application, his removal of the document was a privilege of substantial value. It was an unwarranted privilege because the document was part of the official record and was relied upon by the Planning Board to satisfy the requirement that it acted on the application within 21 days. Therefore, Newcomb violated § 23(b)(2).
"The Conflict of Interest Law is less restrictive for special municipal employees. A special municipal employee is generally permitted to represent private business interests before his municipality, but not before his own board and not if it involves a matter which is a subject of his official responsibility," said Executive Director Karen L. Nober. "Although the Conflict of Interest Law allowed Mr. Newcomb to represent his own interests before the Planning Board, he could not represent a separate legal entity, such as a realty trust. Mr. Newcomb further violated the law by attempting to use his position to improperly gain approval of his Form A application by removing a critical document from the file. A public sanction of such conduct is appropriate."Disposition Agreement