| Date: | 06/19/1990 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | Docket No. 390 |
| Location: | Boston, MA |
The Commission approved a Disposition Agreement in which Tewksbury Planning Board member Robert Fowler admitted to violating § 17(c) of the conflict of interest law on several occasions and paid a $1,000 civil penalty.
This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Robert A. Fowler (Mr. Fowler) pursuant to Section 5 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, § 4(j).
On March 23, 1988, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G .L. c. 268A, by Mr. Fowler while he was a member of the Tewksbury Planning Board. The Commission has concluded its inquiry and, on May 10, 1989, by a majority vote, found reasonable cause to believe that Mr. Fowler violated G.L. c. 268A, § 17.
The Commission and Mr. Fowler now agree to the following findings of fact and conclusions of law:
1. At all times here relevant, Mr. Fowler was a member of the Tewksbury Planning Board (Planning Board). Planning Board members are elected, part-time, paid municipal employees, but are not special municipal employees within the meaning of G.L. c. 268A. In addition to serving on the Planning Board, Mr. Fowler was, during the relevant time period, employed as a lieutenant in the Tewksbury Fire Department and was also an unpaid reserve Tewksbury police officer in order to fulfill his duties as Arson Investigator for the Fire Department. Mr. Fowler was, therefore, during the period here relevant, a municipal employee as defined in § 1(g) of G.L.
c. 268A. At the times here relevant, Mr. Fowler was also self-employed as a homebuilder.
2. In 1984, a real estate developer named John Sullivan (Sullivan) was in the process of developing a subdivision in Tewksbury called Fox Run Estates. The subdivision consisted of 31 lots on a single-access road, Fox Run Drive. Mr. Fowler became interested in purchasing some of the Fox Run Estates subdivision lots so that he could build houses on the lots for resale. Sometime in mid-1984, Mr. Fowler and Sullivan began negotiations concerning the lots. These negotiations continued over several months.
3. At a Planning Board meeting on August 13, 1984, the Fox Run Estates subdivision was discussed. Mr. Fowler stepped down as a member of the Planning Board and told the Planning Board that he was requesting releases for building permits on Fox Run Estates Lots 5, 6, 7, 8, 28 and 29, after inspection by the town engineering consultant. Mr. Fowler did not say anything to indicate that he was acting on anyone's behalf other than his own in making this request. The Planning Board then voted 4-0, with Mr. Fowler abstaining, to release the lots as requested by Mr. Fowler for building permits, after town inspection. At the time Mr. Fowler requested building permits for Lots 5, 6, 7, 8, 28 and 29, Mr. Fowler did not own the lots. Lots 6, 7, 8, 28 and 29 were owned by Sullivan. Lot 5 was owned by a Tewksbury resident who had asked Mr. Fowler to request the release for him. Mr. Fowler also told the Planning Board that a Tri-Party Agreement would be submitted on Fox Run Estates.[1]
4. On October 31, 1984, Mr. Fowler, Sullivan and John F. Comeau (Comeau) incorporated Pike Properties, Inc., (Pike Properties). The stated purpose of the corporation was to carry on any and all aspects of real estate development, including, but not limited to, the buying and selling of real estate, and any and all aspects of building, rehabilitation, and development of real estate. The ownership of the corporation was divided equally among the three incorporators (Mr. Fowler, Sullivan and Comeau). The articles of incorporation show Mr. Fowler, Sullivan and Comeau as directors; Mr. Fowler as treasurer and president; and Mr. Fowler's wife, June M. Fowler, as clerk. Mr. Fowler received a $100.00 per week as a stipend for expense as president of the corporation. Mr. Fowler also received a portion of the profits from Pike Properties' business activities.
5. On or about November 5, 1984, Pike Properties purchased from Sullivan Fox Run Estates Lots 6, 7, 8, 27 and 28, for a total consideration of $200,000. The purchase of the lots was financed with a $525,200 development loan from the Andover Savings Bank. $120,000 of the loan was applied to the $200,000 purchase price for the lots; the remaining $405,200 portion of the loan was to be used to finance the construction of houses on the five lots. As part of the transaction, Sullivan received $24,000 cash for each of his five lots, for a total of $120,000 in cash, and took back a second mortgage on each lot of $16,000, for a total second mortgage of $80,000 for the five lots.
6. At a Planning Board meeting on March 11, 1985, the Fox Run Estates subdivision was again the subject of discussion. Mr. Fowler stepped down from the Board during discussion of Fox Run Estates in order to address the Board. Mr. Fowler explained to the Board the efforts which were being made to put together a Tri-Party Agreement for the Fox Run Estates subdivision. After the discussion of the TriParty Agreement, Mr. Fowler requested a release for conveyance of Lot 7 in the Fox Run Estates development and stated that a Tri-Party Agreement would be submitted for further releases.
7. On April 8, 1985, Mr. Fowler stepped down from the Board during the Board's discussion of the Fox Run Estates development. Mr. Fowler informed the Board that the attorney for the developer had drawn up a Tri-Party Agreement and that the agreement would be signed by Sullivan and the bank and presented to the chairman of the Planning Board. Mr. Fowler then requested that the Board act on the Tri-Party Agreement, subject to the Town's planning consultant agreeing that everything was "in line." The Board then voted 4-0 to approve the Tri-Party Agreement. Mr. Fowler did not vote.
8. Section 17(c) of G.L. c. 268A provides that no municipal employee shall, otherwise than in proper discharge of his official duties, act as agent or attorney for anyone other than the municipality in connection with any particular matter in which the same municipality is a party or has a direct and substantial interest.
9. The decisions of the Planning Board concerning releases of Fox Run Estate lots and other determinations concerning the subdivision described above on August 13, 1984, March 11, 1985 and April 8, 1985 were particular matters in which the Town of Tewksbury bad a direct and substantial interest within the meaning of G.L. c. 268A, § 17(c).
10. By requesting that the Planning Board take action on Fox Run Estates lots owned by Sullivan (and by another Tewksbury resident) on August 13, 1984 and by requesting Board action concerning lots owned by Pike Properties, Inc. on March 11, 1985 and April 8, 1985, Mr. Fowler acted as the agent for persons other that the Town of Tewksbury in connection with particular matters in which the town was a party or had a direct and substantial interest, thereby violating G.L. c. 268A, § 17(c).
11. The evidence indicates that Mr. Fowler did not intentionally violate the conflict of interest law.[2]
In view of the foregoing violations of G.L. c. 268A, § 17(c), 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 and conditions agreed to by Mr. Fowler:
1. that Mr. Fowler pay to the Commission the sum of one thousand dollars ($1,000.00) as a
civil penalty for violating G.L c. 268A, § 17(c); and
2. that Mr. Fowler waive all rights to contest the findings of fact, conclusions of law, and terms
and conditions contained in this agreement in any related administrative or judicial
proceeding to which the Commission is or may be a party.
