Date: | 12/21/1983 |
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Organization: | State Ethics Commission |
Docket Number: | 219 |
- Respondent: Joseph C. McGinn
- Appearance for Petitioner: Sally C. Reid, Esq.
- Commissioners: Brickman, Burns, McLaughlin, Mulligan
Date: | 12/21/1983 |
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Organization: | State Ethics Commission |
Docket Number: | 219 |
The Petitioner filed an Order to Show Cause on September
6,1983, alleging that the Respondent, Joseph C. McGinn, had
violated M.G.L, c. 268B, s.5[1] by failing to file his
Statement
of Financial
Page 164
Interest for 1982 (Statement) within ten days of receiving from the
Commission a Formal Notice of Delinquency.
Pursuant to notice, an adjudicatory hearing was conducted on
November 3, 1983 before Commissioner Joseph I. Mulligan, a duly
designated presiding officer. See, M.G.L. c. 268B, s.4(c). The
parties waived the filing of post-hearing briefs and oral argument
before the full Commission. In rendering this Decision and Order,
each participating member of the Commission has considered the
evidence and arguments presented by the parties.
1. The Respondent, Joseph C. McGinn, was a District Attorney
for Worcester County from March, 1981 until December, 1982.
2. In November, 1982 the Respondent was designated by the
District Attorney for the Middle District as a person in a "major
policy-making position"[2] for the year 1982 and was required to
file a Statement for 1982 on or before May 1,1983.
4. On May 10,1983, the Respondent received from the Commission
a Formal Notice of Delinquency (Notice) requiring him to file his
Statement within ten days of receipt of the Notice.
5. The Respondent failed to file his 1982 Statement within ten
days of receipt of the Notice.
6. The Commission initiated a preliminary inquiry on June 23,
1983 pursuant to the Respondent's failure to file his 1982
Statement and thereafter authorized the initiation of adjudicatory
proceedings.
7. The Respondent filed his 1982 Statement on July 7,1983, 30
days after the expiration of the ten-day period contained in the
Notice.
8. The Respondent admitted receiving the Commission's Notice
but did not offer a reason for failing to file his 1982 Statement
as required.
The failure of a reporting person to file a Statement within
ten days after receiving a notice of delinquency constitutes a
violation of M.G.L. c. 268B, s. 5. The elements necessary to
establish a M.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 conceded at the
adjudicatory hearing that he failed to file his 1982 Statement
within ten days of receiving the Commission's Notice, the
Commission concludes that the Respondent violated M.G.L. c. 268B
s. 5.
Under M.G.L. c. 268B, s.4(d), the Commission may order an
individual who violates M.G.L. c. 268B to pay a civil penalty of
not more than $2,000.00 for each violation. In cases involving
Statements which are filed late, the Commission imposes a fine
based solely on the number of days which elapse after the
expiration of the 10-day period following the Commission's
Notice.[3] While the Commission does retain the discretion to
adjust a civil penalty in recognition of mitigating circumstances,
none of the factors warranting mitigation are present in this
case.[4] In particular, the Respondent did not demonstrate a
serious, good faith effort to comply as expeditiously and fully as
possible after being put on notice of the filing requirement.
Compare, In the Matter of David Kopelman, 1983 Ethics Commission
124.
On the basis of the foregoing, the Commission concludes that
Joseph C. McGinn violated M.G.L. c. 268B, s.5. Pursuant to the
authority granted it by M.G.L. c. 268B, s.4(d), the Commission
hereby orders Mr. McGinn to pay a civil penalty of $500.00.[5]