Decision  In the Matter of Delabarree F. Sullivan

Date:	01/12/1983
Organization:	State Ethics Commission
Docket Number:	176

• Appearance for Petitioner: David J. Burns, Esq.
• Appearance for Respondent: Thomas J. Hannon, Esq.
• Commissioners: Vorenberg, Ch.; Brickman, McLaughlin, Mulligan.

I. Procedural History

The Petitioner, State Ethics Commission (the Commission), filed an Order to Show Cause on October 1, 1982, alleging that Respondent Delabarre F. Sullivan (Respondent) had violated Section 5 of M.G.L. c. 268B, the financial disclosure law, by failing to file a Statement of Financial Interests (Statement) within ten days of his receipt of a Formal Notice of Delinquency. The Respondent filed an Answer which admitted the facts alleged, but asserted that there was no violation because, during the relevant period, the Respondent's mental condition was such that he did not comprehend the necessity for complying with G.L. c. 268B, s. 5.

Pursuant to notice, an evidentiary hearing was conducted on November 23, 1982, before Rev. Bernard P. McLaughlin, a member of the Commission duly designated as presiding officer. See M.G.L. c. 268B, s.4(c). The parties waived briefs and oral argument. In rendering this decision and Order, each of the four participating members of the Commission has considered the evidence presented by the parties.

II. Findings of Fact[1]

1. The Respondent, Delabarre F. Sullivan, the federal funds coordinator for Middlesex County, was required by G.L. c. 268B, s. 5 to file a Statement for calendar year 1981, on or before May 1, 1982. 

2. The Respondent failed to file his Statement on or before May 1,1982. 

3. Pursuant to G.L. c. 268B, s.3(f), the Respondent received a written Formal Notice of Delinquency ("Notice") from the Commission on May 19, 1982, requiring him to file a Statement within ten days of receiving the Notice. 

4. The Respondent failed to file his Statement within ten days of his receipt of the Notice. 

5. The Respondent's Statement was filed with the Commission on June 15,1982. 

6. The Commission initiated a preliminary inquiry on June 16,1982, as authorized by G.L. c. 268B, s.4(a).  Page 129 

7. The Respondent suffered a concussion on July 23, 1981, which left him partially disabled by brain damage. Since that time, he underwent psychotherapy and medication; the treatment continued through May and June of 1982. 

8. The Respondent has received Workmen's Compensation payments from Middlesex County from July 23,1981 through the present. 

9. The Respondent did not file a federal or state income tax return for the year 1981.

III. Decision

1. Jurisdiction

The parties agreed that the Respondent was, at all times relevant, subject to the provisions of G.L. c. 268B, s.5 and that the Commission was authorized to initiate and conduct adjudicatory proceedings pursuant to that statute.

2. Chapter 268B Allegation

G.L. c. 2688, s.5 states, in relevant part:

(c) Every public employee shall file a statement of financial interests for the preceding 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...

Failure of a 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,^[2] 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.

The elements necessary to establish a G.L. c. 268B, s. 5 violation are that: (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 a Statement; (3) the subject did not file a Statement within ten days of receiving notice. 

Inasmuch as the Respondent admitted, by way of demurrer, all the elements of 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 1981 Statement within ten days of receiving a delinquency notice from the Commission. With the violation established, the only issue left for the Commission to address is the sanction to be imposed.

IV. Sanction

In general, the Commission considers G. L. c. 268B, s. 5 violations, whether technical or flagrant, to be serious infractions which merit a penalty. Under G. L. c. 2688, s. 4(d), upon a finding... that there has been a violation of Chapter 268A or this chapter, [the Commission may] issue an order requiring the violator to:

(1) cease and desist such violation [of c. 268B];

(2) file any report, statement of other information as required by this chapter; or

(3) pay a civil penalty of not more than $1,000 for each violation of this chapter. ..^[3]

Pursuant to this section, the Commission has adopted a policy of levying civil fines on those who do not file timely statements as required by G. L. c. 268B.^[4] This policy, which has been followed in numerous Disposition Agreements filed with the Commission, and in a Decision and Order issued in another case on this date,^[5] establishes the fine according to the stage of legal proceedings reached by the time the Statement is filed. Commission practice under this policy has 

Page 130 

been to levy a fine of $100 when a Statement is filed after the expiration of the ten-day period following a delinquency notice, but before a preliminary inquiry has been initiated.  

As stated in the Chilik decision issued today, the Commission retains the discretion to adjust the civil penalty in recognition of mitigating or aggravating circumstances in individual cases. One of the mitigating circumstances is where the Respondent was unable to comply due to a documented physical or mental condition, either temporary or permanent.^[6] 

The case at hand presents just such circumstances, as outlined below. 

The Respondent suffered a concussion at work on July 23, 1981. Substantial documentation of his resultant condition was introduced into evidence, including documents detailing his brain damage, headaches, forgetfulness and depression. He was under psychiatric therapy from at least March through July, 1982, the time period covered by the Order to Show Cause, and also received workmen's compensation payments during that period. These facts, combined with his failure to file a 1981 income tax return (thereby subjecting him to possible criminal liability), persuaded the Commission that the Respondent's failure to comply with G. L. c. 268B, s. 5 was not intentional but caused by his continuing medical problems, physical and mental. Although these facts do not nullify the G. L. c. 268B, s. 5 violation, the Commission considers them sufficient grounds to forego the assessment of a fine against the Respondent. The Commission's forbearance of a fine here should in no way be read as diminishing the seriousness of a G. L. c. 268B, s. 5 violation, but rather as attributable to the substantive medical evidence on record in this case.

[1] These findings were all either admitted by the Respondent in his Answer by way of Demurrer, or were corroborated by exhibits introduced into evidence, or both. 

[2] "[The commission shall) inspect all statements of financial interests filed with the commission in order to ascertain whether any reporting person has failed to file such a statement or has filed a deficient statement. If, upon inspection. it is ascertained that a reporting person has failed to file a statement of financial interests, or if it is ascertained that any such statement filed with the commission fails to conform with the requirements of section five of this chapter, then the commission shall, in writing, notify the delinquent; such notice shall state in detail the deficiency and the penalties for failure to file a statement of financial interests." 

[3] St. 1982. c. 612. s. 16 raises the maximum fine to $2,000 per violation, effective 3/29/83. 

[4] See, Minutes of Commission Meeting. April 7,1980. 

[5] In the Matter of Thomas A. Chilik, Commission Adjudicatory Docket No. 182.  [6] Id. at 5.