Decision  In the Matter of Alfred D. Smith

Date:	03/13/1985
Organization:	State Ethics Commission
Docket Number:	271

• Respondent: Alfred D. Smith, pro se
• Appearance for Petitioner: Thomas J. Driscoll, Esq.
• Commissioners: Diver, Ch., Brickman, Burns, Mulligan, Sweeney

I. Procedural History

The Petitioner filed an Order to Show Cause on October 26,
1984 alleging that the Respondent, Alfred D. Smith, had violated
G.L. c. 268B, s. 5[1] by failing to file his Statement of financial
Interests for calendar year 1983 (1983 SFI) within ten days of
receiving a Notice of Delinquency (Notice) from the Commission.
The Respondent did not file an Answer. Pursuant to notice, an
adjudicatory hearing was conducted on January 31, 1985 before David
Brickman, a Commission member duly designated as presiding officer.
See, G.L. c. 268B, s. 4(c). The Petitioner submitted a brief, and
the full Commission heard oral argument on February 26, 1985. In
rendering

Page 222

this Decision and Order, the members of the Commission have fully
considered the evidence and arguments presented by the parties.

II. Findings of Fact

1. The Respondent was employed by the Department of Social
Services as an area director from September, 1982 until December,
1984.

2. In January, 1984, the Respondent was designated by the
Executive Office of Human Services as a person holding a "major
policy making position"[2] for the purposes of filing a 1983 SFI.

3. The Respondent failed to file his 1983 SFI by May 1, 1984
as required by G.L. c. 268B, s. 5.

4. On June 27, 1984, the Respondent received a formal notice
of delinquency from the Commission requiring him to file his 1983
SFI within ten days of receipt of the Notice.

5. The Respondent failed to file his 1983 SFI within ten days
of receipt of the Notice.

6. The Commission authorized a preliminary inquiry on July
17, 1984 and the initiation of adjudicatory proceedings against the
Respondent thereafter.

7. The Respondent filed his 1983 SFI on September 5, 1984,
thirty-eight business days after the expiration of the ten-day
period contained in the Notice.

III. Decision

The elements necessary to establish a violation of G.L. c.
268B, s. 5 are: (1) the subject was a public employee (as defined
by the statute) during the year in question; (2) the subject was
notified in writing of his delinquency and the possible penalties
for failure to file his 1983 SFI; (3) the subject did not file
his 1983 SFI within ten days of receiving notice of delinquency.
Inasmuch as the Respondent admits the facts which constitute a
G.L. c. 268B, s. 5 violation, the Commission concludes that he
violated G.L. c. 268B, s. 5 by failing to file his 1983 SFI within
ten days of receiving a Notice from the Commission.

IV. Sanctions

Under G.L. c. 268B, s. 4(d), the Commission may order an
individual who violates G.L. c. 268B to pay a civil penalty of not
more than $2,000.00 for each violation. In cases involving
Statements of Financial Interests which are filed late, the
Commission imposes a fine calculated on the number of days which
elapse after the expiration of the ten-day period following the
Commission's notice. The fine schedule, which was adopted in
April, 1983, imposes a daily fine of $10.00 for the first ten
working days and $20.00 per working day thereafter, or a total of
$560.00 in the Respondent's case. However, the Commission has
adopted a $500.00 ceiling on the civil penalty to be imposed on
late filers. See, In the Matter of Vernon R. Thornton, 1984
Ethics Commission 171.

The Commission retains the discretion to adjust the civil
penalty in recognition of mitigating or aggravating circumstances
in individual cases. The following factors, if clearly
established, have served as adequate grounds in mitigation of a
civil fine:

1. The Respondent was unable to comply due to a documentable
physical or mental condition, either temporary or permanent;

2. Given the total circumstances, the Respondent made a
serious, good faith effort to comply as expeditiously and fully as
possible after being put on notice of the filing requirement. See,
In the Matter of Thomas A. Chilik, 1983 Ethics Commission 130.
Applying the above criteria to the Respondent, no mitigating
factors exist in this case sufficient to warrant reducing the
customary fine. The Commission is aware of the Respondent's
preoccupation with other pressing matters; however, this does not
excuse his disregard for the filing obligations of G.L. c. 268B.
Despite several opportunities to meet the requirements of the
financial disclosure law, the Respondent did not make a good faith
compliance effort and chose to delay complying with the statute.
Compare, In The Matter of Nicholas Paleologos, 1984 Ethics
Commission 169.

V. Order

On the basis of the foregoing, the Commission concludes that
Alfred D. Smith violated G.L. c. 268B, s. 5. Pursuant to the
authority granted it by G.L. c. 268B, s. 4(d), the Commission
orders Mr. Smith to pay a civil penalty of five hundred dollars
($500.00).

[1] G.L c. 268B, 15 states in relevant part:

(c) Every public employee shall file a statement of financial
interests for the proceeding calendar year with the Commission
within ten days after becoming a public employee, on or before May
first of each year thereafter that such person is a public employee
and on or before May first of the year after such person ceases to
be a public employee...

(g) Failure of a reporting person to file a statement of
financial interests within ten days alter receiving notice as
provided in clause (f) of section 3 of this chapter, or the filing
of an incomplete statement of financial interests after receipt of
such a notice, is a violation of this chapter and the Commission
may initiate appropriate proceedings pursuant to the provisions of
section 4 of this chapter.

[2] For the purposes of G.L c. 268B, major policy making
position is defined as: the executive or administrative head or
heads of a governmental body; all members of Ge judiciary; any
person whose salary equals or exceeds that of state employee
classified in step one of job groups XXV of the general salary
schedule contained in Massachusetts General Laws c. 30, s. 46 and
who reports directly to said executive or administrative head; the
head of each division, bureau or other major administrative unit
within such governmental body; and persons exercising similar
authority.