Decision  In the Matter of John E. Greeley

Date:	10/18/1983
Organization:	State Ethics Commission
Docket Number:	194

The Commission's Ruling on the Respondents' Motion for Summary Decision

Page 160   

The Respondents' Motion for Summary Decision is granted  because the statute of limitations bars the Petitioner from  bringing this action.   

Pursuant to the precedent established in the Decision and  Order of In the Matter of John P. Saccone and Edmund W. DelPrete  [1982 Ethics Commission 87], the Commission finds that the  Petitioner is bound to a three year statute of limitations with  respect to this enforcement proceeding, and that the statute of  limitations begins to run at the time of the receipt of the  gratuity,[1] unless there is evidence that the violation was  "fraudulently concealed" or "inherently unknowable." In the Matter  of Saccone and Delprete, supra, [94]. In the Saccone end Delprete  matter, the Commission found that in causes of action based on an  inherently unknowable wrong, the limitations period starts to run  when the Petitioner reasonably should have learned that he was  harmed by the Respondent's conduct. Id.   

The alleged violations in this case took place in November,  1976, and July, 1977. The Petitioner presented evidence that it  first became aware of the alleged violations in March, 1981 through  a newspaper article, approximately four to five years after the  alleged violations occurred. The Petitioner maintains that the  statute of limitations did not begin to run until the Petitioner  became aware of the violations because the violations were  inherently unknowable. The Commission disagrees. This case is  factually indistinguishable from the Saccone and DelPrete  matter.[2] In the instant case, there were other "disinterested  persons," the attorney general and the appropriate district  attorneys, capable of enforcing s.3 and the "petitioner did not  show that [it] [was] unable, despite due diligence, to discover the  violation[s] earlier.. ." Id., at [98]. In invoking the statute of  limitations, the Commission notes that, unlike the substantive  sections of G.L. c. 268A, s.23 is also enforceable by an agency  head, who may take administrative action against an employee for  violations of the section. Thus, in 1976 and 1977, Respondent  Greeley's appointing official was capable of bringing an action  against him for the conduct alleged and failed to act within the  required time. Id., at [99].   

In the alternative, the Petitioner argues that the Respondents  fraudulently concealed the violations thereby tolling the statute  of limitations until the Petitioner discovered the alleged  wrongdoing. The Petitioner argues that the act of concealment  involved Respondent Greeley signing Respondent Emerson's name to  the credit card receipts after he used the latter's credit card.  The Commission rejects this position. The act of fraudulent  concealment must be accompanied by positive steps done with the  intention to deceive. Id. at [94]. The Commission is unpersuaded  that Respondent Greeley signed the credit card receipts with the  intent of hiding any wrongdoing. The overwhelming inference in that  he signed the receipts in order to utilize the credit card.   

Based on the facts presented before the Commission, the  statute of limitations began to run at the time the violations  occurred. Therefore, the Commission follows the holding of the  Saccone and Delprete matter.     

[1] In its Order to Show Cause, dated March 16,1983, the Petitioner  alleged that Respondent Emerson violated G.L. c. 268A, s. 3(a) by  giving Respondent Greeley something of substantial. value for or  because of official acts performed or to be performed by Greeley.  municipal employee, Greeley, in turn, was charged with violating  s.3(b) for accepting something of substantial value from Emerson  based on the performance of official acts on his (Greeley's) part  and with violating s. 23(e), by giving the impression that Emerson  could unduly enjoy his [Greeley's] favor in the performance of his  official duties.   

[2] In Saccone and Delprete the Commission found that the  Petitioner's failure to discover the alleged violations did not  toll the statute of limitations unless the violations (which  involved the same sections of G.L. c. 268A at issue here) were  inherently unknowable. Id.. at [98]