Decision  In the Matter of Helen Donohue - Decision and Order

Date:	08/19/2020
Organization:	State Ethics Commission
Docket Number:	19-0005
Location:	Boston, MA
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

• Appearance for Petitioner: Tracy Morong, Esq.
• Respondent: Helen Donohue, Esq.
• Commissioners: Maria J. Krokidas, Thomas J. Sartory, R. Marc Kantrowitz, Josefina Martinez, Wilbur P. Edwards Jr.
• Presiding Officer: R. Marc Kantrowitz

Decision and Order

DECISION AND ORDER

Petitioner filed an Order to Show Cause (“OTSC”) on June 17, 2019 against Respondent Helen Donohue (“Donohue”).  The OTSC alleges that Donohue, a Selectman in the Town of Norwood, violated G.L. c. 268A, § 23(b)(3), by repeatedly participating as a Selectman in matters related to Eysie Plaza, without publicly disclosing that: (1) she had a contentious personal relationship with the owner of the plaza, Paul Eysie (“Eysie”), and/or (2) her daughters had a financial interest in nearby property.        

An evidentiary hearing was held on January 27, 2020.^[1]  At the hearing, the parties made opening statements and introduced evidence through witnesses and exhibits.^[2]  Both parties filed post-hearing briefs.^[3]  On June 25, 2020, the parties presented closing arguments to the Commission via video conference.^[4]  The Commission began deliberations in executive session on June 25, 2020 and continued the matter to July 30, 2020.^[5]   

In rendering this Final Decision and Order, each undersigned member of the Commission has considered the testimony, the evidence in the public record, and the arguments of the parties.   

I.  FINDINGS OF FACT  

1. Donohue served as a member of the Town of Norwood (“Town”) Board of Selectmen (“BOS”) from 2001 to 2019.^[6]
2. Donohue has known Eysie  for decades.  Donohue and Eysie had an amicable relationship for many years.  Their relationship became contentious in or around 2006, when Eysie bought property known as the former Barry Paper Mill (“the Mill”), located directly across the street from Donohue’s home.   
3. The Mill was a dilapidated building that Eysie wanted to develop into affordable housing apartments.  Eysie obtained approval from the Zoning Board of Appeals (“ZBA”) and worked with Town Officials to obtain $835,000 in state funding to complete the project.  
4. Donohue was not happy with the affordable housing project and she told Eysie that she would appeal the ZBA decision to Superior Court, unless he agreed to certain “conditions.”  The “conditions” included restrictions related to the height and size of the building, parking, trash removal, and the number of tenants who could reside in each unit.   
5. Eysie and Donohue argued vehemently about the “conditions.”  Eysie believed that if Donohue appealed to the ZBA, then he would lose the state funding and “be stuck with an empty building.”  Although Eysie was unhappy with Donohue’s “conditions,” he ultimately agreed to them, obtained the necessary approval from the ZBA, and completed the affordable housing apartment project.
6. Eysie still owns the Mill property, which now contains six studio apartments.  Donohue still lives across the street from the Mill property.  Eysie and Donohue continued to have a contentious relationship after the Mill project was completed; they have had disputes related to the number of tenants residing in each unit and the placement of the apartments’ trash barrels.
7. Donohue’s family has owned a vacant lot located at 1223 Washington Street in Norwood (“Lot”) for 90 years.  At all relevant times, the Lot was owned by the Olga Realty Trust (“Trust”).  Donohue’s three daughters were the sole beneficiaries of the Trust.  Donohue believed that everyone in Town knew her family owned the Lot.  
8. Eysie owns a strip mall (“Eysie Plaza”) located 1237-1243 Washington Street in Norwood.  Eysie Plaza is approximately 200 feet away from the Lot.  Eysie Plaza is not a direct abutter to the Lot, nor is it an abutter to an abutter to the Lot.  The two properties are separated by a public street and residential properties.
9. The Lot has been for sale for many years.  At one point, Donohue asked Eysie to support the sale of the Lot to a developer; however, Eysie refused because, he felt that Donohue had “crucified” him “every time [he] . . . tried to do anything good.”
10. The following three matters involving Eysie Plaza, or its tenant, Mina’s Café,^[7] came before the BOS while Donohue was a Selectman:  

          (1)  June 14, 2016: Mina’s Café’s application for a wine and malt beverage license;

          (2)  September 20, 2016: Eysie’s request to place a warrant at a Special Town Meeting
                 to rezone Eysie Plaza; and

          (3)  February 21 and March 28, 2017: Mina’s Café’s application for an entertainment license.  

11. The Town provided notice to the abutters of Eysie Plaza when each of these three matters came before the BOS.  The Trust did not receive notice from the Town regarding any of these matters because the Lot does not abut Eysie Plaza.  
12. On June 14, 2016, the BOS voted to allow Mina’s Café’s application for a wine and malt beverage license (“beverage license”).  Donohue cast the sole vote against the application.   
13. On September 20, 2016, the BOS voted to allow Eysie’s request that a warrant be placed before the Special Town Meeting to rezone Eysie Plaza.  Donohue cast the sole vote against Eysie’s request.  Eysie Plaza had been partially zoned for commercial use and partially zoned for residential use; Eysie wanted the zoning to be changed to entirely commercial, which would reflect the Plaza’s actual use.   
14. On February 21, 2017, the BOS voted on whether to hold a public hearing on Mina’s Café’s application for an entertainment license.  Donohue voted in favor of holding a public hearing.  
15. On February 21, 2017, Donohue submitted a letter to the BOS asking the BOS to seek an opinion from Town Counsel before deciding whether to allow Mina’s Café’s application for an entertainment license.  In the letterhead, Donohue listed her home address and telephone number, but also included her title as a member of the Board of Selectmen.  
16. On March 28, 2017, the BOS held a public hearing on Mina’s Café’s application for an entertainment license.  The minutes from the BOS meeting state that Donohue did not participate in the discussion or vote on Mina’s Café’s entertainment license.^[8]  During the meeting, the BOS considered Donohue’s February 21, 2017 letter as a written submission.
17. Eysie testified, and we accept, that it was well known by Town residents that he and Donohue had a hostile relationship.  After watching a BOS meeting on television, Eysie’s mother once asked Eysie why Donohue was “badgering” him.
18. Donohue did not make or file a disclosure of an appearance of a conflict of interest form pursuant to G.L. c. 268A, § 23(b)(3), relating to either: (1) the contentious personal relationship and ill will between herself and Eysie; or (2) her daughters’ ownership interest in the Lot.
19. Donohue was aware that an appearance of a conflict of interest could raise an issue under the conflict of interest law.  During the September 20, 2016 BOS meeting, Donohue questioned whether a fellow Selectman had an appearance of a conflict of interest.  Donohue completed the Ethics Commission’s online conflict of interest law training multiple times.   
20. Donohue testified that beginning in November 2015 she underwent several surgical procedures, was hospitalized multiple times, cared for her ailing husband and sister, and as a result she was under significant emotional and physical strain for several years.

II.  DISCUSSION

G.L. c. 268A, § 23(b)(3) provides that no municipal employee “shall knowingly, or with reason  to know: . . . act in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.”  Section 23(b)(3) contains a “safe harbor” disclosure provision.  Under this “safe harbor,” an elected municipal employee may participate in a matter which raises an appearance of a conflict, if the employee discloses, in a public nature, the facts that would make it appear to a reasonable person that he might act in an unfair or biased manner.  All disclosures made in accordance with the provisions of G.L. c. 268A, must be made in writing.  G.L. c. 268A, § 24.

The purpose of § 23(b)(3) is to address appearances of impropriety and it is intended “to prevent giving the appearance of conflict as [much as] to suppress all tendency to wrongdoing.”  Scaccia v. State Ethics Commission, 431 Mass. 351, 359 (2000) (quoting Selectmen of Avon v. Linder, 352 Mass. 581, 583 (1967) (internal quotation marks omitted)).  “‘[S]ection 23(b)(3) is concerned with the appearance of a conflict of interest as viewed by the reasonable person,’ not whether preferential treatment was given.”  Id. (quoting In the Matter of Herbert, 1996 SEC 800, 810).  Section 23(b)(3) is implicated whenever a municipal employee has a private relationship with an individual and a matter involving that person comes before the employee.  In the Matter of Richard Kenney, 2005 SEC 2006; see also EC-COI-92-3.  Under § 23(b)(3), the appearance of impropriety can be avoided if a municipal employee discloses in writing in a public nature all of the relevant circumstances which would otherwise create the appearance of conflict.  

In order to establish a violation of § 23(b)(3), Petitioner must prove by a preponderance of the evidence that:^[9] (1) Donohue was a municipal employee,^[10] (2) who knowingly or with reason to know acted in a manner; (3) which would cause a reasonable person having knowledge of the relevant facts to conclude that any person could improperly influence or unduly enjoy her favor in the performance of her official duties, or that she was likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person; and (4) that Donohue failed to disclose in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.  The weight to be attached to any evidence in the record, including evidence concerning the credibility of witnesses, rests within the sound discretion of the Commission.^[11]   

Donohue acted as a Selectman: (1) on June 14, 2016, when she voted against Mina’s Café’s application for a beverage license, (2) on September 20, 2016, when she voted against Eysie’s request for a warrant at the Special Town Meeting to rezone Eysie Plaza; and (3) on February 21, 2017, when she voted in favor of holding a public hearing on Mina’s Café’s application for an entertainment license.^[12]   

A.  Donohue’s acrimonious relationship with Eysie created an appearance of a conflict for Donohue when she participated as a Selectman in Eysie’s warrant request for a zoning change to Eysie Plaza.
 

We must first determine whether Donohue violated G.L. c. 268A, § 23(b)(3) by participating as a Selectman in matters related to Eysie Plaza and Mina’s Café.   

Petitioner argues that Donohue harbored ill will toward Eysie in connection with the Mill property, and their history of animosity created the appearance that Donohue would be biased when participating as a Selectman in matters involving Eysie Plaza.  Petitioner asserts that a reasonable person, who knew that Donohue had a private contentious relationship with Eysie, would conclude that Donohue might act in an unfair or biased manner toward Eysie when she participated in the BOS vote on Eysie’s warrant request and Mina’s Café’s license applications.   

Donohue argues that she was not required to file a § 23(b)(3) disclosure because G.L. c. 268A, § 6A applied to her.^[13]  Donohue also claims that she participated in matters involving Eysie Plaza because, as a Selectman, she had a duty to protect residents.  Finally, Donohue argues that evidence related to the Mill Property is barred by the statute of limitations; as the Mill property project was completed approximately fourteen years ago, any evidence related to the Mill property is barred by G.L. c. 268B, § 4(c).^[14]

 We find that Petitioner has established by a preponderance of the evidence that a reasonable person having knowledge of Eysie and Donohue’s history of significant personal conflict, would conclude that Donohue’s contentious relationship with Eysie could improperly influence Donohue in the performance of her official duties when she participated on September 20, 2016, in the BOS discussion and vote to approve Eysie’s warrant request.^[15]   Donohue and Eysie’s personal conflict began in or around 2006, when Eysie purchased the Mill property and built affordable housing apartments directly across the street from Donohue’s home.  Tension between Donohue and Eysie increased when Donohue threatened to appeal the ZBA decision approving the project to Superior Court, unless Eysie agreed to Donohue’s “conditions.”  Even after Eysie completed the affordable housing project, his relationship with Donohue remained contentious, and they continued to argue about Eysie’s tenants and trash barrels.  A reasonable person who knew of Donohue and Eysie’s history of conflict, and that Donohue lived across the street from an affordable housing apartment building Eysie owned, would conclude that Donohue might be improperly influenced in the performance of her official duties, when she participated on September 20, 2016, in the BOS discussion and vote on whether to approve Eysie’s warrant request to rezone Eysie Plaza.    

We note that, under § 23(b)(3), Donohue could have participated in the September 20, 2016 BOS discussion and vote on Eysie’s warrant request if, before participating, she had filed a written disclosure with the Town Clerk, disclosing her relationship with Eysie.  However, at no time did Donohue ever file a written disclosure, nor did she make any verbal disclosure of her relationship with Eysie.  The fact that Donohue and Eysie’s contentious relationship was well known among residents did not exempt or excuse Donohue from filing a written § 23(b)(3) disclosure.  The § 23(b)(3) advance written disclosure requirement to dispel the appearance of a conflict of interest is important.  The § 23(b)(3) disclosure provision serves several purposes; it requires a public employee to pause and reflect upon the appearance issue and decide whether to abstain or, notwithstanding the appearance issue, to participate after making a timely written disclosure; the disclosure is also a public record, which assists in avoiding later disputes of whether an arrangement was disclosed, and it subjects the arrangement to public view.  In the Matter of Walter R. McGrath, 2004 SEC 708; In the Matter of Stephen V. Shiraka, 2004 SEC 1163; see also Advisory 05-01: Standards of Conduct.

            B.   Donohue’s daughters’ ownership of a vacant lot near Eysie Plaza did not create
                  an appearance of a conflict for Donohue when she participated as a Selectman in
                  matters regarding Eysie Plaza and Mina’s Cafe.

Next, we must determine whether Donohue violated G.L. c. 268A, § 23(b)(3) when she participated as a Selectman in matters regarding Eysie Plaza and Mina’s Café when her daughters had a financial interest in nearby property.

Petitioner argues that Donohue’s daughters’ ownership interest in the Lot created an appearance of a conflict of interest for Donohue when she participated in matters involving Eysie Plaza.  Petitioner maintains that the close proximity between the Lot and Eysie Plaza created an appearance that a change to Eysie Plaza’s zoning, or a change to the use of Mina’s Café (i.e. whether Mina’s Café obtained an entertainment or beverage license) would affect the value of the Lot, which was for sale at all relevant times.^[16]  Petitioner asserts that a reasonable person who knew that Donohue’s daughters had an ownership interest in a vacant lot located across the street and approximately 200 feet from Eysie Plaza, might conclude that Donohue would act favorably towards her daughters’ interest in the Lot, when Donohue participated as a Selectman in matters involving Eysie Plaza and Mina’s Café. 
 

Donohue argues that she was not required to file a § 23(b)(3) disclosure before she participated as a Selectman in matters involving Eysie Plaza, because the Trust did not receive notice from the Town regarding Eysie Plaza’s warrant request or Mina’s Café’s license applications.  Donohue claims that because the Trust is not on the “Town Abutters List” (i.e., a list of properties, maintained by the Town, which the Town uses to provide abutters with notice about matters involving Eysie Plaza), and because there is a public street between the Lot and Eysie Plaza, the fact that her daughters own the Lot, did not create an appearance of a conflict when she participated in Eysie’s warrant request, or in Mina’s Café’s license applications.

Although it is a close question, we find, based on all of the evidence in the record, that Petitioner has not met its burden.

 

III.  Order

We have concluded that Donohue violated G.L. c. 268A, § 23(b)(3) when she participated as a Selectman in the discussion and vote on Eysie’s warrant request to rezone Eysie Plaza.  There is sufficient evidence in the record that Donohue understood that an appearance of a conflict could raise an issue under the conflict of interest law.  Donohue completed the Ethics Commission’s online conflict of interest law training multiple times, and she explained to a fellow Selectman that merely the appearance of a conflict could raise an issue under the conflict of interest law.  Donohue, a longtime Selectman and attorney, should have understood her obligation to file a § 23(b)(3) disclosure before participating as a Selectman in matters involving Eysie Plaza.  However, on balance, considering the totality of the circumstances, in this particular case, we find a civil penalty of $50 is appropriate for the following reasons.

First, we are mindful that when Donohue participated as a Selectman in matters involving Eysie Plaza, she was under significant physical and emotional strain.  Donohue underwent several surgical procedures, was hospitalized multiple times, and was caring for her ailing husband and sister.  Second, there is no evidence that Donohue intentionally tried to conceal her relationship with Eysie, or that she did not file a disclosure because she did not want to reveal the nature of her relationship with him.  To the contrary, it was well known among Town residents that Donohue and Eysie had a hostile relationship, which essentially satisfied the safe harbor provision of 23(b)(3).^[17]  

Finally, because Donohue was recently re-elected to the BOS and this type of violation may be likely to recur in the future, if a matter comes before Donohue as a Selectman involving an individual or an entity with whom she has a private relationship, which would cause a reasonable person having knowledge of the relevant facts to conclude that any person could improperly influence or unduly enjoy her favor in the performance of her official duties, or that she is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person, then she must either abstain from the matter as a Selectman, or file a § 23(b)(3) disclosure with the Town Clerk before she participates in the matter.   

Additionally, if any matter comes before Donohue on the BOS involving Paul Eysie, Eysie Plaza, Mina’s Café, or any tenant of Eysie Plaza or Paul Eysie, to comply with § 23(b)(3), Donohue is well advised to either: (1) abstain from participating in the matter as a Selectman,^[18] or (2) file a written § 23(b)(3) disclosure with the Town Clerk before she participates.  Further, if she participates in a matter that raises an appearance of a conflict, pursuant to G.L. c. 268A,
§ 23(b)(2), she must take care to be fair and impartial in her participation, and she may not use her Selectman position to provide any individual or entity with an unwarranted benefit or privilege of substantial value that is not available to similarly situated individuals.  We encourage Donohue to contact the Commission for advice if she has any questions about how the conflict of interest law applies.

Having concluded that Respondent Helen Donohue violated G.L. c. 268A, § 23(b)(3) and pursuant to the authority granted it by G.L. c. 268B, § 4(j), the State Ethics Commission hereby ORDERS Respondent Helen Donohue to pay a civil penalty of $50.  

DATE AUTHORIZED:  July 30, 2020

DATE ISSUED:  August 19, 2020

^[1]  930 CMR 1.01(10)(b).  Donohue, who is an attorney, appeared pro se.

^[2]  Donohue and Eysie  were the only witnesses who testified at the adjudicatory hearing.  

^[3]  930 CMR 1.01(10)(m). 
 

^[4] The parties agreed to present their closing arguments to the full Commission remotely, via Zoom video conference, pursuant to the Governor’s Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30A, § 20, dated March 12, 2020.  See also 930 CMR 1.01(10)(f). 

^[5]  G.L. c. 268B, § 4(i); 930 CMR 1.01(10)(o)(1).

^[6] Donohue was elected to the BOS again on June 8, 2020.

^[7] Mina’s Café leases space from Eysie to operate a restaurant in Eysie Plaza.  Eysie does not own Mina’s Café. 

^[8] Eysie, who did not represent Mina’s Café, but attended the meeting as a member of the public, testified that although Donohue did not vote, she was “very much involved in that discussion” because she sat at the table, made gestures and passed notes.  The Commission credits the minutes from the BOS meeting and finds that Donohue did not participate in the discussion or vote on Mina’s Café’s entertainment license as a Selectman. 

^[9] 930 CMR 1.01(o)(2).
 

^[10] It is not disputed that at all relevant times Donohue was a municipal employee.

^[11] 930 CMR 1.01(10)(n)(3).

^[12] Petitioner asserts that Donohue acted as a Selectman when she submitted a letter to the BOS on February 21, 2017 regarding Mina’s Café’s application for an entertainment license.  Whether Donohue submitted the letter as a private citizen or in her capacity as a Selectman is a close question.  However, as Donohue participated in other matters related to Eysie Plaza, we need not reach this issue.

^[13] Donohue’s argument that G.L. c. 268A, § 6A applies to her is without merit.  Section 6A applies only to individuals who have been nominated at a state primary or chosen at a state election.  G.L. c. 268A, § 6A; G.L. c. 268B, § 1 (see definitions of “Public official” and “Public office”).  Donohue was a municipal employee and, as such, G.L. c. 268A, § 6A does not apply to her.   
 

^[14] The Commission rejects Donohue’s statute of limitations argument.  Pursuant to G.L. c. 268B, § 4(c), the Commission “shall initiate such an adjudicatory proceeding within 5 years from the date the commission learns of the alleged violation, but not more than 6 years from the date of the last conduct relating to the alleged violation.”  The OTSC, issued on June 17, 2019, alleges that Donohue violated G.L. c. 268A, § 23(b)(3) when she participated as a Selectman in matters involving Eysie Plaza and Mina’s Café.  The conduct related to Donohue’s alleged § 23(b)(3) violation relates to matters Donohue participated in as a Selectman on: (1) June 14, 2016, (2) September 20, 2016, and (3) February 21, 2017.  Accordingly, Donohue’s conduct related to the alleged § 23(b)(3) violations occurred within the statute of limitations set forth in G.L. c. 268B, § 4(c).  As for the acts outside of the limitations period, they were admitted as relevant to the history of personal conflict.
 

^[15] Whether Donohue also violated G.L. c. 268A, § 23(b)(3) when she participated as a member of the BOS on Mina’s Café’s beverage and entertainment license applications is a closer question.  Although there is ample evidence in the record that Donohue had an acrimonious relationship with Eysie, who owned Eysie Plaza and was Mina’s Café’s landlord, there is no evidence that Donohue had a personal relationship with Mina’s Café and/or its owners.  We have determined that Donohue violated G.L. c. 268A, § 23(b)(3) when she participated as a Selectman in Eysie’s warrant request to rezone Eysie Plaza, and therefore we need not decide whether Donohue also violated § 23(b)(3) when she participated in Mina’s Café’s license applications. 
 

^[16] There is not sufficient evidence in the record that the value of the Lot would have been affected by the BOS decisions regarding Eysie Plaza and Mina’s Café.   Donohue would have been prohibited from participating in these matters under G.L. c. 268A, § 19, if it had been reasonably foreseeable that the value of the Lot would increase/decrease as a result of these matters.  Section 19 prohibits a municipal employee from participating in a particular matter in which her immediate family members have a financial interest.  The Commission has previously found that a property owner is presumed to have a financial interest in matters involving abutting or nearby property based on certain factors.  See Advisory 05-02: Voting on Matters Affecting Abutting or Nearby Property.  For example, a property owner is presumed to have a financial interest in matters involving property that is directly opposite a street, or where she is an abutter to an abutter within 300 feet of the property line.  Accordingly, if the Lot was located directly across the street from Eysie Plaza, or if it was an abutter to an abutter within 300 feet of Eysie Plaza, then it would have been presumed that Donohue’s daughters had a financial interest in matters involving Eysie Plaza, and Donohue would have been prohibited, under § 19, from participating as a Selectman in matters involving Eysie Plaza.  However, Eysie Plaza is not located directly across the street from the Lot, nor is it an abutter to an abutter of the Lot, and there was no allegation in the OTSC that Donohue violated G.L. c. 268A, § 19.       

^[17] This is not to intimate that a well known reputation will shield one from liability under
§ 23(b)(3).  Indeed, we take this opportunity to emphasize that a written disclosure should be filed.      

^[18] If Donohue chooses to abstain from participating in a matter as a Selectman, the best practice, although not required, is for her to state for the minutes that she is abstaining and then leave the room while the Board deliberates and votes on the matter.