|Organization:||State Ethics Commission|
- Appearance for Petitioner: David J. Burns, Esq.
- Appearance for Respondent: E. Melvin Nash, Esq.
- Commissioners: Diver, Ch.; McLaughlin, Brickman, Burns, Mulligan
|Organization:||State Ethics Commission|
The Petitioner filed an Order to Show Cause on August 30,1983 alleging that the Respondent, Kenneth M. Nash, had violated M.G.L. c. 268B, s.5 by failing to file his Statement of Financial Interests 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 December 2, 1983 before Commissioner Bernard McLaughlin, a duly designated presiding officer. See, M.G.L. c. 268B, s.4(c). The parties
thereafter presented oral arguments before the full Commission and submitted briefs in support of their positions. 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, Kenneth M. Nash, was a member of the Massachusetts Aeronautics Commission (MAC), from May, 1979 until January 29, 1982.
2. Due to funding problems with MAC, the Respondent decided to resign in October, 1981. He wrote his formal letter of resignation on January 22, 1982, but he neither received money from MAC nor participated in MAC activities in 1982.
3. In January, 1983, the Respondent was designated by the Secretary of the Executive Office of Transportation and Construction as a person in a "major policy-making position" for the year 1982. As such, he was a public employee and was required to file a Statement for 1982 on or before May 1, 1983.
4. The Respondent failed to file his 1982 Statement by May 1, 1983.
5. On May 11, 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.
6. The Respondent failed to file his 1982 Statement within ten days of receipt of the Notice.
7. 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.
8. The Respondent filed his 1982 Statement on August 2, 1983, forty-nine days after the expiration of the ten-day period contained in the Notice.
9. The Respondent admits receiving the Commission's Notice and ignoring it, thinking it was sent in error. He testified that it was the first correspondence he had received regarding this matter because the Commission had been using an incorrect address.
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.
The Respondent maintains that he was not a member of MAC and therefore, not a "public employee" during 1982 since it was his intention to resign from MAC in October, 1981. He argues that the date of his formal resignation, January 29,1982, should not be controlling. However, for the purposes of the Commission's regulations, 930 CMR 2.00, Designations of Public Employees, a "public employee" is defined as any person holding a major policy- making position in a governmental body for eight days or more during a reporting year. . . " 930 CMR 2.02(15). The regulations define "holding a major policy-making position in a governmental body for eight days or more as occupying that position for that period of time, without regard to days of actual service. 930 CMR 2.02(10). In view of these definitions, it is clear that the Respondent was a public employee as defined by the statute during 1982. Based on his date of resignation, he occupied a position with a governmental body for more than eight days in 1982. The fact that the Respondent received no money, nor participated in any MAC activities in 1982 is not relevant because MAC is a governmental body authorized to expend public funds. His failure to receive compensation due to lack of funding does not exempt him from the law. Until the Respondent formally resigned from MAC on January 29, 1982, he was a member of MAC and, as such, he was required to file his 1982 Statement by May 1, 1983.
The respondent also contends that he did not have proper notice of the filing requirement and the ensuing penalty for failing to file as required. To support his position he maintains that he did not receive prior Commission correspondence which was mailed to his business address rather than his home address. He also states that the Commission's Notice sent in May was the first letter he received on this matter. However, the Respondent admittedly received Commission material, such as the Notice sent to his business address. Since the Notice informed the Respondent of his delinquency and addressed the imposition of a civil penalty, he received proper notice for the purposes of establishing a violation under M.G.L. c. 268B, s.5. After receiving the Notice, the Respondent could have filed his Statement or contacted the Commission within the ten-day grace period provided. He did neither, choosing instead to ignore the material. 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 calculated on the number of days which elapse after the expiration of the ten-day period following the Commission's Notice. 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. However, without condoning the Respondent's disregard of the filing requirement, the Commission finds that a civil penalty of $500, rather than $880 is appropriate. See, fn. 7, supra.
On the basis of the foregoing, the Commission concludes that Kenneth M. Nash 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 orders Mr. Nash to pay a civil penalty of five hundred dollars ($500.00).