| Date: | 05/12/1989 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 350 and 351 |
The Petitioner initiated these adjudicatory proceedings on December 9, 1987 by filing Orders to Show Cause pursuant to the Commission's Rules of Practice and Procedure, 930 CMR 1.01(5)(a). The Orders alleged that Joseph Zora, Jr. (Zora Jr.) had violated G.L. c. 268A, s.17(c) on six separate occasions and that Joseph Zora, Sr. (Zora Sr.) had violated G.L. c. 268A, s.17(c) on four separate occasions.
Specifically, the Order to Show Cause alleges that Zora Jr. violated s.17(c) of the conflict law by:
1. on April 10, 1985, appearing at a meeting of the Marion Conservation Commission (MCC) and acting as agent for Zora Enterprises, Inc.;
2. on April 10 and 12, 1985 making telephone calls, as the agent of Zora Sr., to the chairman of the MCC regarding the MCC's failure to post legal notices of the time and place of its meetings on the Rider Notice of Intent;
3. on April 12, 1985, acting as agent for Zora Enterprises while walking lot #45 with the MCC and a representative from the Department of Environmental Quality Engineering (DEQE);
4. on April 19, 1985, acting as agent for Zora
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Enterprises in discussions before the MCC regarding lot #45; and
5. on April 24, 1985, acting as agent for Zora Enterprises in a discussion regarding lot #45 by suggesting to the MCC that it needed to review some of its procedures regarding its requirements for issuance of a decision on a pending application.
Specifically, the Order to Show Cause alleges that Zora Sr. violated s.17(c) of the conflict law by:
1. on April 19, 1985, appearing at a MCC meeting as an agent for Zora Enterprises and the Riders, and substantially participating in discussions regarding whether or not the MCC had jurisdiction to make decisions regarding percolation tests on lot #45 and submitting a written memorandum expressing 13 concerns relating to the hearing process;
2. authorizing his son on two occasions to contact the Chairman of the MCC regarding the MCC's failure to post legal notices of the time and place of its meetings on the Rider Notice of Intent; and
3. on April 24, 1985, acting as agent for Zora Enterprises and the Riders at a MCC meeting by participating in a discussion involving the procedural aspects of the MCC's hearing requirements in connection with the Rider Notice of Intent and by submitting a letter from an engineer regarding a percolation test performed on lot #45.
Each of the Respondents filed an Answer on February 12, 1988. Zora Jr. raised the following defenses:
1. Article 15 Part I of the Declaration of Rights to the Massachusetts Constitution guarantees a right to trial by jury in proceedings before the State Ethics Commission;
2. that the speech complained of is protected under the Massachusetts and Federal constitutions;
3. that this action is barred by the applicable statute of limitations and his due process rights are violated by the Commission's proceedings in light of this;
4. that he was not a regular municipal employee as a member of the MCC;
5. that he abstained from any MCC activity on March 24, 1985 and resigned on that date;
6. that the MCC's meeting on April 19, 1985 was not lawful and so he could not, as a matter of law, have violated s.17 at that meeting; and 7. that a percolation test is not a "particular matter" within the meaning of the statute since the MCC does not have the legal authority to conduct a percolation test.
Zora Sr. raised the followings defenses: 1. Article 15 of Part I of the Declaration of Rights to the Massachusetts Constitution guarantees a right to trial by jury in proceedings before the State Ethics Commission;
2. that the action is barred by the applicable statute of limitations and his due process rights are violated by the Commission's proceedings;
3. that the speech and acts complained of is protected under the Massachusetts and Federal constitutions;
4. that his due process rights have been violated by ex parte proceedings in the reasonable cause determination;
5. that he was a special municipal employee as a member of the Marion Board of Selectmen and that he was not a Selectman at times pertinent to the Order to Show Cause;
6. that he and the MCC at all times treated the land owned by Zora Enterprises as land owned by the Respondent individually;
7. that in March and April of 1985, lot #45 was not under any written purchase and sale agreement, nor had any tide passed to Rider;
8. on April 19, 1985 there was no scheduled meeting of the MCC;
9. on April 19, 1985 he was not acting as agent for another;
10. he did not authorize his son on two occasions to contact the Chairman of the MCC regarding the MCC's failure to post legal notices of the time and place of its meetings on the Rider petition;
11. on April 24, 1985 he did not act as an agent for the Riders; and
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12. in that the MCC is not authorized by law to conduct percolation tests on his land, that act cannot be a "particular matter" within the meaning of the statute.
Both Respondents denied all other material allegations contained in the Orders.
Prior to the hearings, Respondents moved to dismiss on the grounds of statute of limitations and denial of jury trial. Zora Jr. moved for summary judgment on first amendment grounds. Zora Sr. also moved for summary judgment on this ground as well as on the ground that his acts were permissible under G.L.c. 268A, s.17(c)'s fiduciary exemption. Commissioner Archie Epps, who was designated as Presiding Officer, denied these motions.
These cases were consolidated on March 29,1988 following separate Motions to Consolidate filed by all parties. A pre-hearing conference was held on April 13,1988 and adjudicatory hearings were held On April 22,29, May 13 and 30, 1988. The parties filed post-hearing briefs and presented oral arguments before the Commission on February 8, 1989. Respondent's grounds for summary judgment and dismissal are renewed in their briefs.
In rendering this Decision and Order, each undersigned member of the Commission has considered the testimony, evidence and argument of the parties.[1]
1. At all times relevant to this case, Joseph P. Zora, Sr. was a Selectman for the Town of Marion. The members of the Marion Board of Selectmen, at all times relevant to this case, were regular municipal employees.
2. At all times relevant to this case, Joseph P. Zora, Jr. was a member of the MCC[2] The MCC members, at all times relevant to this case, were regular municipal employees.
3. The respondents are father and son.
4. In the early 1960's, Zora Sr. and his wife purchased approximately 75 acres of land in the Town of Marion.
5. Subsequent to that time, but prior to 1985, they acquired additional land in the Town.
6. Zora Sr. intended to develop the land for single family housing.
7. On or about January 12, 1972, Zora Enterprises was incorporated pursuant to G.L. c. 156B, "to carry out the business of developing and improving real property." Zora Sr. was named president and treasurer of the corporation, his wife, Glenna M. Zora, was named clerk, and their children were named directors.
8. By June of 1983, the title to the land previously held by Bra Sr. et ux had been transferred to bra Enterprises, Inc.
9. In June of 1983, Zora Enterprises, Inc. filed a subdivision plan at the Plymouth County Registry of Deeds for a hundred acre subdivision divided into 45 lots.
10. In late 1984 or early 1985, Roy and Sheila Rider approached Zora Sr. to express an interest in buying Lot #45 in the subdivision owned by Zora Enterprises, Inc.
11. Zora Enterprises, Inc. and the Riders entered into a Purchase and Sale Agreement on Lot #45 for the sum of twenty-five thousand dollars on or about February 6, 1985. The Agreement was conditioned on the performance of a percolation test or tests to be performed on or before February 20, 1985 with the buyers having the option to terminate the agreement and recover the deposit "[i]f said tests do not meet the minimum standard set forth in 310 CMR 15.00 et seq."
12. Sometime prior to March 27, 1985, the Riders filed a Notice of Intent under G.L.c. 131, s.40 (the Massachusetts Wetlands Protection Act) with the MCC with respect to Lot #45. A Notice of Intent seeks a permit, otherwise known as an Order of Conditions, to perform work on the land subject to s.40.
13. The Riders were seeking an Order of Conditions from the MCC to construct a house, fill part of the property to accommodate a subsurface sewage disposal system and install a swimming pool on Lot #45.
14. Lot #45 was subject to the jurisdiction of the MCC because it lies lower than 14.5 feet above sea level. G.L. c. 131, s.40. The MCC reviews plans for construction on land within its jurisdiction for impact on ground water supply, shellfish and fisheries, flood control, wetland alteration or replication, storm damage control and pollution.
15. On March 27, 1985, the MCC held a public hearing on the Rider's Notice of Intent. Page 404
16. At the hearing, Zora Jr. announced that he would not participate in the Rider's public hearing because of his father's financial interest in the property. However, he was present during the bearing.
17. After Roy Rider presented his Notice of Intent to the MCC, MCC member John Rockwell informed the MCC that he had gone out to the property himself a few days previously and had dug some holes in the land, and the property seemed very wet to him and he was concerned that the water table was in fact higher than that reported. He suggested to the MCC that a second percolation test be done on the lot. Due to the fact that the Riders bad already paid for a test, the MCC voted to conduct a second test at Town expense, and subsequently voted to continue the bearing until the additional information was submitted.
18. Zora Sr. subsequently learned of the MCC's actions with respect to Lot #45 and was angered at the outcome of the meeting. He regarded the MCC's actions as an attack on his. integrity.
19. Sometime prior to the next scheduled meeting of the MCC on April 10, 1985, Zora Sr. telephoned Janice Mendes, MCC Chair, and threatened the MCC with a lawsuit if anyone set foot on Lot #45.
20. On April 10, 1985, Zora Jr. attended the scheduled meeting of the MCC as a result of a discussion with his father, who complained that he was unable to get information about the hearing continuance on the Rider Notice of Intent. Zora Jr. told his father that he would obtain the information.33
21. At the meeting, Zora Jr. stated that he was there as agent for Zora Enterprises, Inc..[4] His presence as "agent" and not as "member" was noted in the minutes.[5]
22. Zora Jr. stated that with respect to the Rider Notice of Intent, the MCC did not have the authority to order a second percolation test; the percolation test was the obligation of the applicant. He also stated that the MCC did not have the right to dig on Lot #45.
23. MCC Chair Mendes told Zora Jr. that the Rider's Notice of Intent could not be processed without a site inspection which she was now unwilling to perform without written permission from Zora Sr. due to his threats of litigation.
24. Zora Jr. stated that Zora Sr. had already given them permission to go on the property. He further stated that he himself was reiterating permission for the members of the MCC to on the property.
25. Subsequently, Mendes spoke by telephone with Zora Sr. who stated that the MCC could go on the land as long as his representative was present and the MCC dug no holes. On April 12, 1985, a site inspection of Lot #45 took place. MCC members John Rockwell, Janice Mendes, Joyce West, Jack Taliaferro and Ann Chismare participated. Also present were Arthur Thompson, whose firm had conducted the original percolation test, Joseph Hartley, DEQE Wetlands Division Section Chief and Zora Jr.
26. Zora Jr. had been authorized by his father to represent the interests of Zora Enterprises as Zora Sr. was not available to attend.
27. The group convened at the Town Hall, where Zora Jr. first objected to the presence of a DEQE representative stating that contacting DEQE was an official action of the MCC which had not been duly voted. He did, however, give permission for the DEQE representative to enter the property.
28. The MCC conducted a site inspection. If the inspection resulted in a determination that the land was wetlands, the value of the land would substantially diminish.
29. Zora Jr. accompanied the group during their inspection. He expressed disagreement that 50% of the lot contained wetlands vegetation and stated that the observations of some of the MCC members were "baloney' or "bull__."
30. The MCC met on April 19, 1985 to continue the public hearing on the Rider's Notice of Intent.
31. Zora Jr., Zora Sr., and Roy Rider attended the meeting. Rider authorized Zora Sr. to speak on his behalf with respect to the way the MCC was administering the Wetlands Protection Act in relation to the Rider Notice of Intent because Rider felt that Zora Sr. had more expertise in this area.[6]
32. Zora Sr. proceeded to address the MCC at length, criticizing various aspects of their procedures.
33. Zora Sr. also submitted a memorandum detailing his objections to the MCC's conduct.
34. The memorandum was addressed to the MCC from Joseph P. Zora, President of Zora Enterprises, Inc. Prior to submitting the memorandum, Zora Jr. Page 405 and Zora Sr. discussed its contents.
35. Among other things, the memorandum stated that after Zora Jr. withdrew from sitting on the MCC due to the pending Rider Notice of Intent, he was present to represent bra Enterprises, Inc. before the MCC "clarity[ing] and protest[ing] actions taken against bra Enterprises concerning Lot #45" and "on behalf of Zora Enterprises," granting permission to the MCC for a site inspection.
36. Following the bra presentation, the MCC discussed the question of the deadline for its decision on the Rider Notice of Intent. The MCC was of the opinion that it had 21 more days in which to issue its ruling under the applicable regulation.
37. Zora Jr. disputed this, stating that the 21 day period ran from the date of the original hearing and that the MCC had run out of time and had to render its decision that day.
38. The discussion concluded with the MCC voting to issue an Order of Conditions on the Rider Notice of Intent after the Zoras had left the meeting.
39. On April 24, 1985, both Zora Jr. and Zora Sr. accompanied by an attorney, again appeared at the MCC meeting.
40. Zora Sr. provided the MCC with a letter from an engineer who had performed a second percolation test on Lot #45.
41. Zora Jr. and Zora Sr. were informed that the Order of Conditions had already been voted on at the previous meeting.
42. As the Zoras left, Zora Jr. commented that "you guys have a lot of work to do knowing what your procedures are.
43. Following the resolution of the Rider matter, Zora Jr. resumed his participation as a member of the MCC.
Respondents Zora Jr. and Zora Sr. have been charged with six and four separate violations of G.L.c. 268A, s.17(c), respectively. Before turning to the alleged violations, however, we will discuss certain preliminary issues.
A. Procedural
1. Statute of Limitations
Both Zora Jr. and Zora Sr. contend that the Commission has violated their due process rights by proceeding on matters where the statute of limitations has run.
This Commission has, by regulation, codified a three-year statute of limitations pursuant to its regulatory authority, 930 CMR 1.02(10). The Orders to Show Cause in this case were issued on December 9, 1987. All of the acts at issue in this case took place in the spring of 1985. The facts alleged in these Orders to Show Cause all occurred, therefore, within the applicable statute of limitations. The issue of the applicability of G.L. c. 260, s.5 which establishes a two-year statute of limitations in actions for penalties to be given to the Commonwealth has been raised and rejected elsewhere. See, In the Matter of Robert P. Sullivan, 1987 SEC 312.
2. First Amendment and Due Process Rights
Respondents have filed a memorandum arguing that the speech and acts involved in the Orders to Show Cause are protected under the state and federal constitutions. Because we customarily assume the constitutionality of G.L. c. 268A, and Commission procedures, we do not usually address the constitutional challenges at the administrative level. We would note, however, that s.17(c), as applied in this case, does not abridge Respondents' freedom of speech, does not punish the content of their speech, and does not limit their access to the corporate form. Section 17(c), as applied, only limits their right to act as agent for others, a limitation well within the authority of the legislature. See, e.g.., G.L. c. 221, s.43 (agents prohibited from soliciting clients on behalf of attorney). Similarly, Respondents' rights to due process before the MCC are not harmed in any way by G.L. c. 268A, s.17(c), as applied.
3. Right to Trial by Jury
Respondents have filed a memorandum arguing that they have a right to a trial by jury under Article 15 of Part I of the Declaration of Rights to the Massachusetts Constitution. The Supreme Judicial Court, however, has previously determined that our proceedings do not implicate the right to trial by jury. See, Opinion of the Justices of the Senate, 375 Mass. 795,820 (1978). Page 406
B. Substantive Violations
The relevant portion of s.17(c) applicable to this case states that no municipal employee shall, otherwise than in the proper discharge of his official duties, act as agent for anyone in connection with any particular matter in which the municipality or an agency of the same municipality is a party or has a direct and substantial interest.
1. Status as Municipal Employees
General Laws chapter 268A, s.1(g) defines "municipal employee" as a "person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement whether serving with or without compensation on a full, regular, part-time, intermittent or consultant basis." There is no dispute that both Zora Jr. ad Zora Sr. were municipal employees within the meaning of the statute during March ad April of 1985 when Zora Sr. was a member of the Marion Board of Selectmen and Zora Jr. was a member of the Marion Conservation Commission. What was disputed was whether the respondents were regular or special municipal employees.
G.L. c. 268A, s.1(n) defines "special municipal employee" as a municipal employee who is not a mayor, a member of a board of aldermen, a member of a city council or a selectman in a town with a population in excess of five thousand persons, and whose position or employment has been expressly classified by the city council, or board of aldermen if there is no city council, or the board of selectmen as that of a special employee under the terms and provisions of this chapter. All employees who hold equivalent offices, positions, employment or membership in the same municipal agency shall have the same classification; provided, however, no municipal employee shall be classified as a "special municipal employee" unless he occupies a position for which no compensation is provided or which, by its classification in the municipal agency involved or by the terms of the contract or conditions of employment, permits personal or private employment during normal working hours, or unless he in fact does not earn compensation as a municipal employee for a aggregate of more than eight hundred hours during the preceding three hundred and sixty-five days.
For this purpose compensation by the day shall be considered as equivalent to compensation for seven hours per day. A special municipal employee shall be in such status on days for which he is not compensated as well as on days on which he earns compensation. All employees of any city or town wherein no such classification has been made shall be deemed to be "municipal employees" and shall be subject to all the provisions of this chapter with respect thereto without exception.
General Laws Chapter 268A, s.17 indicates, in pertinent part, that the prohibitions of s.17(c) shall not apply to a special municipal employee if the particular matter at issue is neither before his own agency, nor within his official responsibility, nor one in which he has ever participated in his official capacity. As special" status is an affirmative defense to a s.17(c) violation, the burden of proof lies with respondents. See, In the Matter of Joseph Cellucci, 1988 SEC 346 (Adjudicatory Docket No. 335). Respondents have failed to meet this burden.
Zora Jr. asserted in his brief that G.L. c. 268A, s.1(n) requires that he be classified as a special municipal employee. The statute expressly provides, however, that there is no automatic special municipal employee status. Certain categories of employees are eligible for classification but, absent classification, are to be deemed regular municipal employees. Zora Jr. offered no evidence of such designation or status for the times relevant to this case. He offered no evidence of the vote that would have created the status, and no evidence as to the date of the vote that would have created the status.
Similarly, Zora Sr. claimed he was a special municipal employee. He testified credibly that he believed he was a special municipal employee, although he did not understand with any accuracy how the status was obtained. His claim to this status is dependent upon a reading of the May 28, 1985 Board of Selectmen minutes and attachments that assume that an undocumented designation took place prior to May 28, 1985 ad that the May 28, 1985 minutes memorialize that vote. We do not find this evidence adequate to find that the Board of Selectmen voted to designate itself special status at any point. The March 28 minutes evidence of genuine awareness in Marion of special municipal employee status and of a genuine attempt to confer it. Zora Sr.'s good faith belief that he was a special municipal employee, however, is a mitigating factor and not evidence that G.L.c. 268A, s.1(n) was satisfied. We also reject Zora's argument that he automatically became a special municipal
Page 407 employee, as a member of the Marion Board of Selectmen, because in another position he held bad special municipal employee status. Special municipal employee status attaches to the position and not to the person. See G.L. c.268A, s.1(n). In short, the record indicates that the bras were regular municipal employees at all times relevant to the Orders to Show Cause.
2. Particular Matter
General Laws chapter 268A, s.1(k) defines a "particular matter" as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property."
It is not disputed that a Notice of Intent like the one submitted by the Riders to build on their chosen design on Lot #45 is a particular matter. Respondents argue, rather, that of the particular matters Petitioner is targeting here (all meetings, discussions, votes, surveys, correspondence relating to the Rider Notice of Intent) the MCC's decision to conduct a percolation test on Lot #45 and the April 19,1985 meeting of the MCC are not particular matters within the meaning of the statute. Respondents argue that the former is not a particular matter because the MCC exceeded its authority when it ordered the test. Similarly, they contend that the April 19, 1985 meeting is not a particular matter because it was not a meeting conducted in accordance with the Open Meeting Law. We decline to inquire into the strict legality of every particular matter involving the handling of an application of a permit in order to enforce the conflict of interest law. A federal courts considering the same argument in relation to the interpretation of 18 U.S.C. 203, has, concluded that lack of authority is no defense in a gratuity case. U.S. v. Evans, 572 F2d 455 (5th Cir. 1978). The Rider Notice of Intent for an Order of Conditions is clearly a particular matter, something bra Jr.'s own s.19 abstention highlights.
We also find that each of these matters was of direct and substantial interest to the Town of Marion,-and the Respondents have not asserted otherwise. We regard the Town's interest in the MCC proceedings, particularly in the maintenance of an unpolluted water supply and in protection from flood and storm damage, to be direct and substantial.
3. Agency - Zora Jr.
The term "agent" is not defined in G.L. c. 268A, but the Commission has indicated that it includes merely speaking or writing on behalf of a nongovernment party. EC-COI-84-6. "[T]he Commission has concluded that the distinguishing factor of acting as agent within the meaning of the conflict law is 'acting on behalf' of some person or entity, a factor present in acting as spokesperson, negotiating, signing documents and submitting applications [citation omitted]." In the Matter of Robert P. Sullivan, 1987 SEC 312,314. Zora Jr.'s appearance as self-described agent" at the April 19, 1985 MCC meeting where he questioned the MCC's authority to conduct a second percolation test on Lot #45 clearly falls within this definition.
His April 12,1985 appearance at the site inspection review, where he once again declared himself the agent of another, authorized the entry of a DEQE representative on the land, and commented on the site inspection review, also indicates an occasion where he was acting on behalf of another. Finally, his April 19, 1985 appearance at the MCC hearing, where he told the MCC that a statutory time period for completing its review on the Rider Notice of Intent had lapsed and they were obligated to issue the permit that night, also indicates an occasion where he was acting on behalf of another.
We have indicated previously that if the conduct of a party is such that an inference is warranted that one is acting on behalf of and with knowledge and consent of another, an agency exists as a matter of law. Sullivan, supra at 315. There can be little doubt that such an inference was warranted on these occasions because of bra Jr.'s self-identification, the manner in which he presented himself, and the public knowledge that his father considered him an agent of bra Enterprises, Inc. There is no evidence that bra Jr. was acting on behalf of his own interests. Further, the fact that bra Jr. was acting on behalf of a corporation whose owners were immediate family members does not insulate bra Jr. from liability although, as indicated below, it is relevant consideration for disposition purposes.
4. Agency - Zora Sr.
At the time the Riders' Notice of Intent was taken up by the MCC, negotiations for the purchase of the lot had concluded and a Purchase and Sale Agreement executed. It is undisputed that one condition of the sale was that the lot satisfy state percolation standards. A decision that the land did not "perc" would Page 408 effectively render it unsaleable. Accordingly, the indication by the MCC on March 27, 1985 that it was not satisfied with the perc test the Riders submitted, was a direct threat to the consummation of the deal. The seller of the land had a direct financial interest in the proceedings of the MCC with respect to the Rider's Notice of Intent. It is undisputed that the seller was not Zora Sr. but the corporate entity, Zora Enterprises, Inc., of which Zora Sr. was the president.
It is also undisputed that Zora Sr. appeared before the MCC. What is disputed is whether his appearance was "in connection with" Rider Notice of Intent. The facts are clear, however, that although Zora Sr.'s motives were mixed, all of his acts in question were directly in connection with issues that arose under the Rider Notice of Intent application. His integrity was questioned only in that context. Zora Sr.'s attempt to draw a line between his concern with his integrity ad his concern with the Rider Notice of Intent application fails. All of his concerns, as expressed in the memorandum submitted at the April 19, 1985 MCC meeting, arose in the context of the application and were in relation to the processing of and the MCC decisions to be made on that application.
Respondent's argument that no agency can be established here since his interests were identical to the interests of the family corporation, Zora Enterprises, Inc. also fails. The Commission has indicated elsewhere that, as a family trust was a distinct legal entity, a municipal employee who was also a trustee would be acting on behalf of another in seeking occupancy permits for buildings owned by the trust, even if he and immediate family members were the sole beneficiaries of the trust. EC-COI-84-117. The same rule applies to the family corporation found here. Just as the Commission declined in Sullivan, supra, to rule that a president, director or stockholder of a closely held corporation was not an agent of a corporation in all situations for the conflict of interest law purposes, we follow a similar reasoning here. We conclude that such an officer is an agent of the corporation in the ordinary scope of carrying out its business before a municipal agency on the facts of this case.
Finally, Zora Sr. and Rider confirm that at the April 19, 1985 MCC meeting Zora Sr. spoke on behalf of Rider as well as himself. This role of spokesman was clearly in relation to the Rider Notice of Intent as well.
Zora Sr. violated s.17(c) on two occasions, at the April 19 and 24, 1985 MCC meetings, by acting as agent for Zora Enterprises and the Riders in connection with the Rider application for an Order of Conditions in which the Town of Marion was a party or had a direct and substantial interest. Section 17(c)'s fiduciary exemption, by its express language, is not available to an elected official. EC-COI-84-117. We find that the Petitioner has not sufficiently established on the record the factual basis for allegations that Zora Sr. authorized his son to contact the MCC Chair. Consequently, we find no violation of s.17(c) with respect to these additional allegations.
Zora Jr. violated s.17(c) on four occasions at the April 10, 19 and 24, 1985 MCC meetings and on the April 12, 1985 site inspection of Lot #45. A finding that two s.17(c) violations occurred based on Zora Jr.'s phone calls to the MCC Chair as agent of his father was not substantiated in the record.
The Commission may require a violator to pay a civil penalty of not more than two thousand dollars for each violation of G.L. c. 268A. G.L. c. 268B, s.4(j)(3). Although the potential maximum fine on Zora Jr. is $8,000.00 and on Zora Sr. is $4,000.00, we believe that the imposition of fines in this case is not warranted.
With regard to Zora Sr., this is because all of his violations would have been avoided had he in fact obtained the special municipal employee status. Zora Sr. was particularly credible on the point of his belief that he had this status at all times. The evidence also indicates that, equally important, the Marion Selectmen thought he had special status and had wanted him to have special status. Simply, no evidence was entered that he had been properly designated. In light of this genuine confusion as to special municipal employee status and the evidence that those with the authority to confer this designation intended to confer this status (and believed that they had conferred this status), the Commission declines to impose a fine.
With regard to Zora Jr., several factors persuade us that a fine should not be imposed. These include the evidence that he made an effort to comply with G.L. c. 268A by not participating as a municipal employee in particular matters in which Zora Enterprises, Inc. had a financial interest, see, G.L. c. 268A, s.19, the lack of evidence that Zora Jr.'s acts of agency had any determinative effect on the outcome of decisions made by the MCC, and the fact that Zora Jr. made no effort to conceal his involvement in these matters. More importantly, we note Zora Jr.'s actions as agent for Zora Enterprises were on behalf of a corporation the
Page 409
owners and officers of which were all family members. While Zora Jr. is clearly not entitled to the protection s.17 provides for municipal employees who act as agent for immediate family members,[7] his actions, viewed in the context of the family corporation, do not merit the imposition of a fine.
