Decision

Decision  In the Matter of Clarence D. Race

Date: 02/03/1988
Organization: State Ethics Commission
Docket Number: 327
  • Appearance for Petitioner: Marilyn Lyng O'Connell, Esq.
  • Appearance for Respondent: Alan J. Rilla, Esq. and John J. McQuade, Esq.
  • Commissioners: Diver, Ch., Basile, Epps, Gargiulo, Jarris

Table of Contents

I. Procedural History

The Petitioner initiated these adjudicatory proceedings on March 13, 1987 by filing an Order to Show Cause pursuant to the Commission's Rules of Practice and Procedure, 930 CMR 1.01(5) (a). The Order alleged that Clarence D. Race (Respondent) had violated G.L. c. 268A, s.19[1] on November 8, 1983 by requesting, by letter and as Chairman of the Egremont Board of Selectmen, that the Department of Environmental Quality Engineer (DEQE) review a particular set of septic plans in which the Respondent and his immediate family had a financial interest. 

The Respondent's Answer raised a statute of limitations defense and denied that Respondent personally and substantially participated in a matter in which he knew he or his family had a financial interest in violation of s.19. 

In lieu of a hearing, the parties stipulated to the relevant facts. The parties filed briefs and presented oral arguments before the Commission on January 6, 1988. In rendering the Decision and Order, the Commission has considered the evidence and arguments of the parties.

II. Findings of Fact

1. Respondent is a member of and chairman of the Egremont Board of Selectmen and has been since 1981.

2. In 1980, Respondent formed Egremont Contractors, Inc., a family owned business engaged primarily in the construction of single family homes. At all times relevant hereto, Respondent's son, Thomas Race, has been the president and chief operating officer of the corporation. Also at all times relevant hereto, Respondent, his wife, Thomas Race and one other son were the sole owners of the corporation.

3. In September, 1980, Respondent, his wife and two sons purchased a 5.8 acre parcel of land located on Mt. Washington Road in Egremont for $8,000. The land was purchased as a valid building lot with satisfactory percolation test.

4. In the fall of 1983, the Races agreed to sell the Mt. Washington Road property to Lindsey Crawford for $12,000. There was no formal purchase and sale agreement nor another written agreement, although in the fall of 1983 (and prior to November, 1983) Lindsey Crawford gave Respondent a $1,000 deposit on the property.

5. On October 31, 1983, a registered engineer performed a percolation test on the Mt. Washington Road property and designed a septic system. The chairman of the Egremont Board of Health reviewed the percolation test results and system design and requested that the president of the privately owned South Egremont Water Company also review the test results and system design because the property was within the watershed. The water company president then requested an opinion from the State Department of Environmental Quality and Engineering (DEQE) as to whether this system conformed to Title 5 of the State Sanitary Code.

6. On November 8, 1983, Respondent met with the Chairman of the Egremont Board of Health at the Egremont Town Hall. Also present were Thomas Race and Mary Brazie, the Selectman's secretary. A discussion ensued concerning the request by the president of the Egremont Water Company for an opinion from the DEQE as to whether the system, as designed, complied with the requirements of Tide 5 of the State Sanitary Code. It was decided that the request be made in writing and that it be signed by Respondent, in his capacity as Chairman of the Egremont Board of Selectmen, to elicit a prompt reply.

7. In the letter to the DEQE, dated November 8, 1983, Respondent enclosed for its review the engineer's plans for a septic system on the Mt. Washington Road property which his family intended to sell to Lindsey Crawford. Respondent informed DEQE in this letter that at least nine homes had been built in the watershed area. The letter included a post-script signed by the Chairman of the Egremont Board of Health which indicated his approval on behalf of the Board of Health of the system design. DEQE responded to the November 8, 1983 letter by letter dated November 18, 1983.

8. On December 2, 1983, Thomas Race, on behalf of Egremont Contractors, Inc., applied for a permit to construct a sewage disposal system on the Mt. Washington Road property. The permit was approved on December 15, 1983.[2]

9. The sale of the property became final by deed dated January 30, 1984. Respondent's share of the profits in the sale amounted to less than $1,000.

10. On February 10, 1984, Lindsey Crawford applied for and received a building permit, in which he listed Egremont Contractors as the contractor. The estimated cost of the construction was listed at $35,000.

11. Egremont Contractors, Inc. did not participate in the construction of the house or the sewage disposal system on the parcel purchased by Lindsey Crawford. 

Page 330

III. Decision

For the reasons stated below, the Commission concludes that the Order to Show Cause was issued in a timely fashion and that Respondent violated G.L. c. 268A, s.19.

A. Statute of Limitations

1. Sufficiency of Affidavits

The Commission has promulgated a regulation concerning the assertion of a statute of limitations defense. 930 CMR 1.02(10) (c). When a statute of limitations defense has been asserted, Petitioner has the burden of showing that a disinterested person learned of the violation no more than three years before the order was issued. Petitioner has submitted the affidavits of Ms. Gallant, Mr. Roberto, and Mr. Krant to satisfy this burden.

Respondent claims that District Attorney Roberto's affidavit is legally deficient because it fails to explain whether such a complaint has been received and fails to speak with certain clarity. We decline to adopt a reading of 930 CMR 1.02(c) (2) that would require District Attorney Roberto to have left no stone unturned in his efforts to determine if such a complaint had been filed. The regulation at issue does not appear to have contemplated any such requirement even when, as here, there are no complaint files to search. District Attorney Roberto's assertion that such a complaint would have been brought to his attention and his lack of recollection of such a complaint, coupled with his consultation with present and former staff who similarly had no recollection of such a complaint, is sufficient.

The second claim is related to the first. District Attorney Roberto stated what efforts he made to ascertain whether a complaint had been filed. His conclusion, at each stage of his inquiry, was that no complaint had been made. This also satisfies the requirements of 930 CMR 1.02(c) (2), as applied reasonably to the situation where no complaint files are kept.

2. General Knowledge in the Community

930 CMR 1.02 (10) (d) (1) provides that if the Petitioner meets his burden under 930 CMR 1.02(10) (c),the Respondent will prevail on his statute of limitations defense only if he shows that more than the three (3) years before the order was issued the relevant events were a matter of general knowledge in the community. Respondent argues that the facts that four people were present at the Selectmen's office on November 8, 1983, when the letter which is the subject of the Order to Show Cause was signed, that a deed evidencing Respondent's (and his family's) ownership interest in the subject property was recorded at the Registry of Deeds, that a design for a sewage disposal system was prepared and percolation test was conducted on the subject property by engineer George Adote, that the water company president received a copy of the November 8, 1983 letter and then wrote a letter to the Board of Selectmen and the Board of Health (November 26, 1983), and that certain officers of the water company may have been aware of that November 26 letter as well, all indicate that, in a town with a population of approximately 1,300, the matter was of general knowledge in the community.

Not all of the people listed above knew enough of the relevant events to be described as members of the community who knew about the relevant events. Respondent, for example, makes no claim that the selectmen (other than Respondent) knew that Respondent's family owned the property which was a subject of dispute. The fact that Respondent, as a Selectman, knew the relevant facts is irrelevant. Nantucket v. Beinecke, 579 Mass. 345,350 (where the court refused to attribute the knowledge of the defendant municipal employees to the municipality being wronged by their acts). Neither the letter of November 8, 1983 nor the letter of November 26, 1983 refers to Respondent and his family's financial interest in the subject property. Moreover, this crucial relevant fact was not known by those listed above. We conclude, therefore, that the relevant facts were not a matter of general knowledge in the community.

B. Substantive Violation

There is no dispute that as a member of the Egremont Board of Selectmen, Respondent is a municipal employee, as that term is defined in G.L. c. 268A, s.1(g). Section 19 of G.L. c. 268A prohibits him from participating as a municipal employee in a particular matter in which, to his knowledge, he or his immediate family, has a financial interest.

There is also no dispute that the November 8, 1983 request to DEQE to review the septic plans was a particular matter as that term is defined in G.L. c. 268A, s.1(k). This definition includes a bequest for a ruling or other determination."

Respondent argues that G.L. c. 268A, s.1(j) requires personal and substantial participation and that this requirement was not met by the November 8, 1983 request to DEQE. He contends that the letter was a ministerial act that did not directly affect a particular matter and that the letter neutrally conveyed another's request for review to DEQE. Petitioner responds that Respondent both requested DEQE review and suggested the result which DEQE should reach.

We conclude that Respondent's sending of the letter as Chairman of the Board of Selectmen amounted to personal and substantial participation as defined in G.L. c. 268A, s.1(j). Respondents contention that his was a ministerial act fails here because, although not every 

Page 331

action by a public official will satisfy the substantiality requirement, In the Matter of John R. Hickey, 1983 Ethics Commission 158 at 159, this was more than a pro forma act. "For purposes of s.19, 'participation' is not limited to discretionary and/or final decisions." In the Matter of George Najemy, 1984 Ethics Commission 223 at 224. The November 8, 1983 letter's inclusion of information about other, obviously acceptable, completed septic plans in the area is clear evidence that this was not merely a ministerial act by Respondent.

We conclude that the financial interests of Respondent and his immediate family in the November 8, 1983 letter were both obvious and reasonably foreseeable. Respondent knew of the agreement to sell the lot to Mr. Crawford and of Mr. Crawford's intent to build a house on the property. Respondent and his immediate family had a financial interest as owners of the parcel and as prospective sellers of the parcel.

IV. Sanction

The Commission may require a violator to pay a civil penalty of not more than two thousand dollars for each violation of G.L. c. 268A G.L. c. 268B, s.4(j)(3). Although the potential maximum fine in this case is $2,000, we believe that the imposition of the maximum fine is not warranted, This violation involved less attempted and less actual affect on a particular matter than is found in some Commission precedent on s.19 violations. See, In the Matter of Paul A. Bernard, 1985 Ethics Commission 226 (violation of s.19 by member of planning board who approved and signed a plan when he was also privately acting as a real estate broker for the sale of the property involved).

Respondent's personal profit from this particular matter was less than $1,000. There was no large personal stake here. His personal participation did not have a determinative effect on DEQE's decision. His participation was an attempt to effect DEQE's decision on a disputed matter, however. Respondent's act was not ministerial and not neutral. Therefore, a fine reflecting these facts is appropriate.

V. Order

On the basis of the foregoing pursuant to its authority under G.L. c. 268B, s.4, the Commission orders Respondent to pay two hundred and fifty dollars ($250.00) to the Commission as a civil penalty for violation of G.L. c. 268A, s.19.

[1] "...a municipal employee who participates as such an employee in a particular matter in which to his knowledge he, his immediate family or partner, a business organization in which he is serving as officer, director, trustee, partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment has a financial interest, shall be punished by a fine of not more than three thousand dollars or by imprisonment for not more than two years, or both." G.L. c. 268A, s.l9. 

[2] When a statute of limitations defense has been asserted, the Petitioner will have the burden of showing that a disinterested person earned of the violation no more than three (3) years before the order was issued. The burden will be satisfied by:

(1) an affidavit from the investigator currently responsible for the case that the Enforcement Division's complaint files have been reviewed and no complaint relating to the violation was received more than three (3) years before the order was issued, and

(2) with respect to any violation of M.G.L,. c. 268A other than 23. affidavits from the Department of the Attorney General and the appropriate Office of the District Attorney that, respectively, each office has reviewed its files and no complaint relating to the violation was received more than three (3) years before the order was issued, or

(3) with respect to any violation of M.G.L. c. 268A, 23, an affidavit from respondent's public agency that the agency has reviewed its files and the agency was not aware of any complaint relating to the violation more than three (3) years before the order was issued. 

[3] G.L. c. 268A, s.1(k) defines "particular matter" as any judicial or other proceeding. application, submission, request for a ruling or other determination, contract, claim, controversy, charge, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. 

[4] Commissioners Basile and Jarvis concur with the conclusions of this Decision and Order regarding the violation of 19 but believe that the publicity of this finding, without a fine, is a sufficient sanction under these circumstances.

Help Us Improve Mass.gov  with your feedback

Please do not include personal or contact information.
Feedback