| Date: | 12/02/2020 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 20-0007 |
| Referenced Sources: | G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011 |
The Order to Show Cause (“OTSC”) in this case alleges that Respondent Christopher Hicks violated G.L. c. 268A, §§ 27 and 28 because he failed to provide the Town Clerk in Berkley an acknowledgment of having received a summary of the conflict of interest law and failed to complete the State Ethics Commission’s online training within 30 days after joining the Planning Board in Berkley in May, 2018 or thereafter.
On August 19, 2020, Petitioner filed a Motion for Summary Decision (“Motion”) pursuant to 930 CMR 1.01(6)(e)2 on the grounds that Respondent had failed to file an Answer to the OTSC. In a Decision and Order issued on October 20, 2020, the Commission allowed the Motion.
The Commission also determined that a civil penalty of $2,000 should be assessed against Respondent. Respondent was given two weeks from the date of the Decision and Order to provide any facts that would justify mitigation of this penalty. If Respondent provided such facts, Petitioner was given one week from the date of Respondent’s submission to file a response. The Order informed the parties that, in the event that Respondent failed to provide any mitigating facts, the penalty of $2,000 will stand.
Having received no response from Respondent, we order Respondent, Christopher Hicks, to pay a civil penalty of $2,000. Reasons for the allowance of Petitioner’s Motion for Summary Decision and for the amount of the civil penalty are reiterated below.
The OTSC was filed on July 22, 2020. Notices scheduling a Pre-Hearing Conference on August 25, 2020 and an Adjudicatory Hearing on October 20, 2020 were sent to the parties.
Respondent has been representing himself throughout this proceeding. An Answer was to be filed by Respondent in accordance with 930 CMR 1.01(5)(c) by August 12, 2020. Respondent did not file an Answer.
On August 19, 2020, Petitioner filed a Motion for Summary Decision pursuant to 930 CMR 1.01(6)(e)2, which states:
2. When the record discloses the failure of the Respondent to file documents required by 930 CMR 1.00, to respond to notices or correspondence, or to comply with orders of the Commission or Presiding Officer, or otherwise indicates a substantial failure to cooperate with the Adjudicatory Proceeding, the Presiding Officer may issue an order requiring that the Respondent show cause why a Summary Decision should not be entered against him or her. If the Respondent fails to show such cause, a Summary Decision may be entered in favor of the Petitioner. Any such Summary Decision shall be granted only by the Commission, shall be a Final Decision, and shall be made in writing as provided in 930 CMR 1.01(10)(o).
The grounds for the Motion are that Respondent had failed to file an Answer, a document required by 930 CMR 1.00.
A Pre-Hearing Conference was held on August 25, 2020 at 9:30 a.m. Respondent did not attend.
At 10:13 a.m. that day, Respondent e-mailed Petitioner a Certificate indicating that he completed the State Ethics Commission’s online training on August 2, 2020 and an Acknowledgement of Receipt indicating that he acknowledged receiving a summary of the conflict of interest law on August 2, 2020. He also stated that he “took the test and resigned” and that he works 80 hours a week running “a paving company for a widow and … can’t take time off for the meeting.”
On August 27, 2020, the Presiding Officer issued an Order After Pre-Hearing Conference. The Order stated that the documents sent by Respondent on August 25, 2020 did not resolve the case as they did not address his alleged failure to meet legal requirements during the relevant time period. Noting that a response to the Motion for Summary Decision was due by September 2, 2020, the Order explained that Hicks also could file an Answer to resolve the Motion. In addition, the Order stated that the Presiding Officer has the authority to issue an order requiring that the Respondent show cause why Summary Decision should not be entered against him.
Respondent did not file a response to the Motion on September 2, 2020 or file an Answer. On September 3, 2020, the Presiding Officer issued an Order to Respondent to Show Cause Why Summary Decision Should Not Be Entered and scheduled a hearing for September 16, 2020.
The hearing was held on September 16, 2020. Respondent did not appear.
Later on September 16, Petitioner filed Petitioner’s Civil Penalty Recommendation. It states, “While the Commission is authorized to impose a penalty of $10,000 for each violation of §§ 27 and 28, the Petitioner recommends a civil penalty of $5,000 per violation.” The recommendation is for a $10,000 penalty.
As provided in 930 CMR 1.01(6)(e)2, a Presiding Officer may deny a motion for summary decision, but only the full Commission may allow it. After notice, a hearing on the Motion was held on October 15, 2020 before the full Commission. Respondent did not appear.
The Commission allowed the Motion in a Decision and Order issued on October 20, 2020. The Motion was allowed because, as of that date, Respondent still had not filed an Answer, and he also had failed to respond to notices and appear at a Pre-Hearing Conference on August 25, 2020, a hearing before the Presiding Officer on the Order to Respondent to Show Cause Why Summary Decision Should Not Be Entered on September 16, 2020, and the hearing before the full Commission on the Motion for Summary Decision on October 15, 2020.
Respondent has engaged in this adjudicatory proceeding only once, when he sent his e-mail on August 25, 2020 attaching the Certificate of having completed the online training and the Acknowledgement of having received the summary of the conflict of interest law, each dated August 2, 2020. This compliance more than two years after he joined the Planning Board does not excuse his failure to satisfy the training requirements during the relevant time period, April, 2018 to July 22, 2020, and it did not excuse him from filing an Answer or appearing before this agency when required to do so.
Section 27 of the conflict of interest law states:
…Every state, county, and municipal employee shall, within 30 days of becoming such an employee, and on an annual basis thereafter, be furnished with a summary of this chapter prepared by the commission and sign a written acknowledgement that he has been provided with the summary. Municipal employees shall be furnished with the summary by, and file an acknowledgement with, the city or town clerk….
Section 28 states:
…Every state, county, and municipal employee shall, within 30 days after becoming such an employee, and every 2 years thereafter, complete the online training program. Upon completion of the online training program, the employee shall provide notice of such completion to be retained for 6 years by the appropriate employer….
When a municipal employee completes the online training program, the program produces a Certificate showing the date of completion, and the employee is required to submit it to the employer.
By analogy with cases in which courts set penalties after a defendant has defaulted, we accept the factual allegations in the OTSC as true for purposes of establishing liability. See, e.g., Rodriguez v. Parks and Woolson Machine Co, Inc., Worcester Superior Court No. 1997-CV-0831 (Agnes, J. July 9, 2007).
The following factual allegations in the OTSC are accepted as true: Respondent was elected to the Berkley Planning Board in May, 2018. Consequently, he was a municipal employee for purposes of the conflict of interest law, G.L. c. 268A. The Berkley Town Clerk provided Respondent with a packet of materials, including a summary of the conflict of interest law, at Respondent’s swearing-in as a Planning Board member. The Town Clerk also notified Respondent that he was required to acknowledge receipt of a summary of the conflict of interest law and to take the State Ethics Commission’s online training program.
Respondent failed both to acknowledge receipt of the summary of conflict of interest law and to take the online training after being advised by the Town Clerk of the statutory requirements. The Commission’s Public Education Division repeatedly sought Respondent’s compliance with the statutory requirements in June, August and October of 2019. As of the date of the OTSC, July 22, 2020, Respondent still had not acknowledged receipt of the summary of the conflict of interest law or taken the online training program.
On the facts as alleged, the Commission finds that Respondent was a municipal employee as a member of the Berkley Planning Board for purposes of the conflict of interest law, and that he failed to acknowledge receipt of a summary of the conflict of interest law within 30 days of joining the Berkley Planning Board in May, 2018 or at any time thereafter through July 22, 2020, and therefore violated G.L c. 268A, § 27.
The Commission also finds that Respondent failed to take the State Ethics Commission’s online training within 30 days of joining the Berkley Planning Board in May, 2018 or at any time thereafter through July 22, 2020, and that he therefore violated G.L c. 268A, § 28.
The purpose of the two statutory training requirements in G.L. c. 268A, 27 and 28, is to ensure that state, municipal and county employees are made aware of their obligations under the conflict of interest law. The vital goal is to prevent self-dealing and other instances of corruption by employees while serving government. Disregard of our agency’s educational requirements undermines our mission of preserving integrity in public service. We cannot allow public employees to thumb their noses at these requirements. We also note that Respondent’s continuing recalcitrance needlessly caused State Ethics Commission staff to spend agency time and resources persuading him to do what he was legally required to do.
With regard to both the violations and a penalty, this is a case of first impression. We acknowledge that, while serious, violation of the training requirements is not as concerning as egregious violations of the public trust, such as violations under § 19 for using government to serve a personal financial interest or violations under § 23(b)(2) for misuse of official position, for which the Commission has assessed penalties between $5,000 and $10,000. See, e.g., In the Matter of Robert Nichols, 2015 SEC 2570; In the Matter of Edward McGovern, 2016 SEC 2590, aff’d, McGovern v. State Ethics Commission, Hampden Superior Court No. 1679-CV-00082 (Goodwin, J. May 2, 2018), aff’d, 96 Mass. App. Ct. 221 (2019), further appellate review denied, 483 Mass. 1108 (2019); In the Matter of Stephen Comtois, Commission Docket No. 19-0003, Decision and Order, August 18, 2020. The Commission has concluded that, in the current case, a penalty of $5,000 per violation would be excessive.
The closest analogy to the current case is cases regarding the failure to file a Statement of Financial Interests (“SFI”) in a timely manner in accordance with G.L. c. 268B, § 5. In 2009, the Commission increased the maximum penalty for such violations from $2,000 to $10,000. Penalties increase as more time passes after a Formal Notice of Lateness has been received. A schedule of penalties sets the increases. The first penalty for filing 1 - 10 days late is $100. The penalty for filing between 121 days late and the date when an OTSC is issued is $1,250. The penalty for filing after the date of an Order to Show Cause, but before a Decision and Order, is $ 2,500. If no SFI is filed on or after the date of a Decision and Order, the penalty may be up to $10,000. Actual penalties have been in the range of $1,000 to $2,000. The Commission has assessed penalties lower than those in the schedule of penalties in instances where Respondents have demonstrated that there were mitigating circumstances.
Respondent’s failure to comply with the statutory training requirements extended for more than two years before the OTSC was filed, despite the repeated efforts by State Ethics Commission staff to remind him of his duties. Although he was given an opportunity to do so, he has not made the Commission aware of any circumstances justifying mitigation.
We hereby ORDER Respondent, Christopher Hicks, to pay a penalty of $2,000 for the violations of G.L. c. 268A, §§ 27 and 28 -- $1,000 for failing to comply with the statutory training requirements in 2018, and $1,000 for continuing to fail to comply in 2019.
DATE AUTHORIZED: November 18, 2020
DATE ISSUED: December 2, 2020
