Decision  In the Matter of Ann Carroll

Date:	02/15/1983
Organization:	State Ethics Commission
Docket Number:	175

Appearances

Marilyn L. O'Connell, Esq.: Counsel for the State Ethics Commission

William J. Carroll, Esq.: Counsel for the Respondent Ann R. Carroll

Commissioners: Vorenberg, Ch.; Brickman, Burns, McLaughlin, Mulligan

I. Procedural Background

The Petitioner initiated these adjudicatory proceedings by
filing an Order to Show Cause on October 1, 1982 pursuant to the
Commission's Rules of Practice and Procedure, 990 CMR 1.01 (5)(a).
The Order alleged that the Respondent Ann R. Carroll, Director of
Student Services at

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Quinsigamond Community College (QCC) had violated G.L. c. 268B,
s.5[1] by failing to file her Statement of Financial Interests
(SFI) for calendar year 1981 within ten days of her May 10, 1982
receipt of a Formal Notice of Delinquency (Notice) from the State
Ethics Commission (Commission). In her Answer, the Respondent
contended that she did not receive the Notice until her return from
an out-of-state conference on May 17, 1982 and that the Commission
received her SFI within the permissible ten-day period following
her receipt of the Notice.

An adjudicatory hearing was conducted in this matter on
November 16, 1982 before Commissioner Bernard McLaughlin, who was
designated as the Presiding Officer under G.L. c. 2688, s.4(c). The
parties thereafter filed post-hearing briefs and waived oral
argument before the full Commission, In rendering this Decision and
Order each member of the Commission has considered the testimony,
evidence and arguments presented by the parties.

II. Findings of Fact [2]

1. The Respondent is the Director of Student Services at QCC
and was designated as a reporting person under G.L. c. 2688, s.1(r)
and was required to file her 1981 SFI by May 1,1982.

2. The Respondent did not file her 1981 SFI by May 1,1982.

3. On Friday, May 7,1982, the Commission sent a Notice by
certified mail to the Respondent at her QCC mailing address. The
Notice stated that the Commission would commence enforcement
proceedings if she failed to file her SFI within ten days after
receiving the Notice.

4. On Monday, May 10,1982, Leo DiPilato, a QCC mailroom
employee, signed the signature card for the Notice and sorted the
Notice together with regular QCC mail for delivery on that day.

5. The Respondent was at work at QCC on Monday, May 10,1982
and was preparing for an out-of-state conference which began on the
following day and which lasted until the end of that week.

6. The Respondent received the Notice on May 10, 1982 prior
to her leaving for the conference.

7. The Respondent returned to QCC on Monday, May 17,1982, She
mailed her 1981 SFI on May 24,1982, and the Commission received it
on May 27, 1982.

III. Decision

The Commission concludes that the Respondent violated G.L. c.
268B, s.5 by failing to file her 1981 SFI within ten days after
receipt of the Commission's Notice. In so ruling, the Commission
finds that the Petitioner has satisfied its burden of proving by
a preponderance of the evidence, that the Respondent received the
Commission's Notice on May 10, 1982. See, Commission Rules of
Practice and Procedure, 930 CMR 1.01(9)(m)(2). The inferences
supporting this finding outweigh the Respondent's assertion that
she did not receive Notice until after her return from the out-of-
state conference, See, 1001 Plays, Inc. v. Mayor of Boston, 387
Mass. 879, 887 (1983); Arthun v. Board of Registration in Medicine,
1981 Mass. Adv. Sh. 849, 860-861. In particular, the Commission
finds persuasive the testimony of Martin Howard, the Commission
Executive Accountant, who spoke with the Respondent by telephone
on May 25,1982 at which time she told Mr. Howard that she had put
the SFI form aside and had failed to mail it in; and the
Respondent's June 16, 1982 letter to Mr. Howard in which she stated
"[a]t the time I received the notice, I was preparing for an
important seminar out-of-state,"

The Commission has carefully considered the evidence
introduced from which a contrary inference may be drawn, but finds
the evidence, taken as a whole, unpersuasive. While affidavits in
evidence suggest a possibility that a piece of certified mail
received by QCC mail room personnel might not be delivered to the
addressee on that same day, no QCC mailroom employees could recall
handling the particular Notice to the Respondent following
DiPilato's signature, Moreover, other evidence suggests that the
day of receipt of a certified letter might depend on the time of
day that the letter was received in the mailroom and that the
Notice could very well

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have been received by the Respondent on the same day. Absent first-
hand testimony from QCC mailroom employees regarding the actual
delivery of the Notice to the Respondent, the Commission finds the
inference suggested by the Respondent to be inconclusive. To the
extent that the Respondent's hearing testimony regarding the date
of receipt of Notice conflicts with her written and oral statements
to Mr. Howard, the Commission credits the position of the
Petitioner. This finding is supported by the observations of the
Presiding Officer who viewed the testimony and demeanor of the
witnesses during the hearing and whose observations regarding the
conflicting testimony, as found here, are entitled to deference.
See, Duato v. Commissioner of Public Welfare, 359 Mass.
635,641(1971).

IV. Order

On the basis of the foregoing, the Commission concludes that
the Respondent Ann R. Carroll violated G.L. c. 2688, s.5 by failing
to file her 1981 SFI within ten days of her receipt of a Formal
Notice of Delinquency from the Commission. Pursuant to its
authority under G.L. c. 2688, s.4(d),[3] the Commission hereby
orders the Respondent to pay a civil penalty of $100 (one hundred
dollars) to the Commission within thirty days of receipt of this
Decision and Order.

[1] G.L. c. 268B, s.5 provides as follows:

Failure of reporting person to file a statement of financial
interests within ten days after 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] Findings 1, 2, 3, 4, 5 and 7, which are undisputed, are based
on the Respondent's Answer, exhibits received into evidence during
the adjudicatory hearings, and the testimony of witnesses at the
hearing. The reasons for Finding 6 are explained in the Decision,
infra.

[3] The $100 penalty imposed in this case is consistent with the
Civil Penalty guidelines adopted by the Commission on April 7, 1980
for cases where SFIs have been filed after the ten-day notice of
delinquency period has expired but prior to the initiation of a
preliminary inquiry.