Decision  In the Matter of Joanne Barboza

Date:	05/07/1985
Organization:	State Ethics Commission
Docket Number:	269

Appearances

Thomas J. Driscoll, Esq.: Counsel for Petitioner State Ethics Commission

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, Joanne Barboza, had violated
G.L. c. 268B, s. 5[1] by failing to file her Statement of Financial
Interests for 1983 (Statement) within ten days of receiving from
the Commission a Formal Notice of Delinquency (Notice). The
Respondent did not file an Answer to the Order Show Cause.

II. Findings of Fact

1. The Respondent, Joanne Barboza, was Director, Citizen
Participation in the Department of Social Services through
September 3, 1983.

2. In January, 1984, the Commission was notified by Manuel
Carballo, Secretary of the Executive Office of Human Services that
the Respondent was designated as a person in a "major policy making
position"[2] for the year 1983. As a result, she was a "public
employee" as defined in G.L. c. 268B, s. 1(o)[3] and was required
to file a Statement for 1983 on or before May 1, 1984.

3. The Respondent failed to file her 1983 Statement by May
1, 1984.

4. On May 11, 1984, the Respondent received from the
Commission a Formal Notice of Delinquency pursuant to G.L. c. 268B,
s. 3(f) requiring her to file her Statement within ten days of
receipt of the Notice.

5. The Respondent failed to file her 1983 Statement within ten
days of receipt of the notice.

6. The Commission initiated a preliminary inquiry on June 19,
1984 pursuant to the Respondent's failure to file her 1983
Statement and thereafter authorized the initiation of adjudicatory
proceedings.
7. The Respondent has not filed her 1983 Statement or formally
answered this action by the Commission.

Page 236

8. The Respondent has failed to respond to the Commission's
Notice or Order to Show Cause why summary decision should not be
entered against her.

III. Decision

The evidence demonstrates that the Respondent was designated
to file a Statement for 1983 by the Secretary of the Executive
Office of Human Services. Although she received a Formal Notice of
Delinquency on May 11, 1984, she did not file a Statement within
ten days of receiving that Notice and, as of the date of the
hearing, has not filed such a Statement. Therefore, the Respondent has
violated G.L. c. 268B, s. 5.

IV. Sanction

The Commission, upon finding that there has been a violation
of G.L. c. 268B, may issue an order requiring the violator to
(1) cease and desist such violation; (2) file any statement or
other information required by G.L. c. 268B; or (3) pay a civil
penalty of not more than $2000 for each violation. G.L. c. 268B,
s. 4(d). In cases in which a Respondent has failed to file a
Statement and to formally Answer the Commission's proceeding, a
penalty of $1000 has been imposed.[4] A similar penalty is
appropriate in this case. The Respondent has disregarded entirely
her statutory obligation to file a Statement for 1983.

V. Order

The Petitioner's Motion for Summary Decision is granted. The Respondent Joanne Barboza,is ordered to:

1. File a Statement for 1983 within seven (7) days of receipt
of this Decision and Order; and

2. Pay a civil penalty of one thousand dollars ($1,000.00) to
the Commission within thirty (30) days of receipt of this Decision
and Order.

[1] G.L. c. 268B, 15 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, 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, 930 CMR 2.02(12)
defines major policy making position(s) as:

a) the executive or administrative head or heads of a
governmental body;

b) all members of the judiciary;

c) any person whose salary equals or exceeds that of state
employee classified in step one of job group 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;

d) the head of each division, bureau or other major
administrative unit within such governmental body; and

e) persons exercising similar authority.

[3] G.L. c. 268B defines "public employee" as "any person
who holds a major policy making position in a governmental body;
provided, however, that any person who receives no compensation
other than reimbursements for expenses, or any person serving on
a governmental body that has not authority to expend public funds
other than to approve reimbursements for expenses shall not be
considered a public employee for the purposes of this chapter;
provided, however, that the members of the board of bar examiners
shall not be considered public employee for the purposes of this
chapter." G.L. c. 268B, s. 1(o).

[4] See In the Matter of Allison Goodsell, 1981 Ethics
Commission 38, In the Matter of Terrence McGee, 1984 Ethics
Commission 167.