Ethics Commission Issues Public Education Letter to Town of Holland Selectmen and Town Highway Surveyor
Selectmen authorized use of Town funds to pay for Highway Surveyor’s private lawsuit
On March 19, 2015, the State Ethics Commission (“Commission”) voted to find reasonable cause to believe that Town of Holland (“Town”) Board of Selectmen (“BOS”) members James Wettlaufer, Michael Kennedy, Christian Petersen and Lynn Arnold violated G.L. c. 268A, the conflict of interest law, by authorizing the use of Town funds to pay for Town Highway Surveyor Brian Johnson’s private civil lawsuit against a local blogger. The Commission also voted to find reasonable cause to believe that Johnson violated the conflict of interest law by receiving payment of the legal fees in his private civil lawsuit. Rather than authorizing adjudicatory proceedings, the Commission chose to resolve the matter by issuing a Public Education Letter (“PEL”) because the Town has been reimbursed in full and there is a question as to whether the BOS members relied on advice of counsel.
According to the PEL, on February 19, 2011, Johnson participated in a local ice-fishing derby on a Town lake. Local blogger Peter Frei’s home is located on the lake. Frei regularly publishes articles on his blog that are critical of Town officials generally, and of Johnson and his family in particular. An altercation between Frei and Johnson ensued at the ice-fishing derby, which Frei secretly audio-recorded. Johnson subsequently asked Wettlaufer, then Chairman of the BOS, what the Town could do to prevent Frei from “harassing” him. Johnson believed he had a viable claim against Frei for secretly recording him. Wettlaufer said that he would bring the matter to the other BOS members. Shortly thereafter, Wettlaufer told Johnson that the Town would pay Johnson’s legal fees to pursue his civil action against Frei, concluding that Frei would not have harassed Johnson but for his status as a public official, and that such an action could discourage Frei from continuing litigation against the Town and its officials.
On June 9, 2011, Johnson filed a civil complaint against Frei for illegal wiretapping based on Frei’s recording of the confrontation during the ice-fishing incident. Frei filed a number of counterclaims against Johnson. At different times during 2011 through 2013, Wettlaufer, Kennedy, Petersen and Arnold authorized payment of Town funds in the total amount of $23,023 to Special Town Counsel Tani Sapirstein for her representation of Johnson in his private lawsuit against Frei.
Section 23(b)(2)(ii) of the conflict of interest law 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, which are not properly available to similarly situated individuals. The PEL states that Wettlaufer, Kennedy, Petersen and Arnold violated section 23(b)(2)(ii) by authorizing the use of Town funds to pay for Johnson’s private civil lawsuit against Frei. Section 23(b)(2)(i) prohibits a municipal employee from knowingly, or with reason to know, soliciting or receiving anything of substantial value for himself, which is not otherwise authorized by statute or regulation, for or because of his official position. The PEL states that Johnson violated section 23(b)(2)(i) by receiving payment of the legal fees in his private civil lawsuit for or because of his official position.
As noted in the PEL, “there was no legal justification for using public funds to pay for a private civil lawsuit. Moreover, the Commission does not accept that the aim of deterring future lawsuits against the Town is a legitimate justification for this expenditure of Town funds.” The PEL further noted that, “[t]he incident did not relate to Johnson’s duties as Town Highway Surveyor, and his role in the incident was entirely that of a private party.”
Selectmen Arnold, Wettlaufer, Kennedy and Petersen have voluntarily reimbursed the Town $23,023 from their personal funds.