Decision  In the Matter of Kenneth M. Nash

Date:	02/28/1984
Organization:	State Ethics Commission
Docket Number:	216

• Appearance for Petitioner: David J. Burns, Esq.
• Appearance for Respondent: E. Melvin Nash, Esq.
• Commissioners: Diver, Ch.; McLaughlin, Brickman, Burns, Mulligan

I. Procedural History

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[1] 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 

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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.

II. Findings of Fact

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"[2] for the year 1982. As such, he was a public employee[3] 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.

III. Decision

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.[4] His failure to receive compensation due to lack of funding does not exempt him from the law.[5] 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. 

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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.[6] 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.

IV. Sanction

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.[7] 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.

V. Order

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).

[1] M.G.L. c. 268B, s.5 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.

(g) 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 M.G.L. c. 268B, major policy making position is defined as: the executive or administrative head or heads of a governmental body; all members of the judiciary; any person whose salary equals or exceeds that of a 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; the head of each division, bureau or other major administrative unit within such governmental body; and persons exercising similar authority. -- M.G.L. c. 268B, s.1(l). 

[3] For the purposes of M.G.L. c. 268B, public employee is defined as: person who holds a major policy making position in a any 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 no 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... M.G.L. c. 268B, s.1(o). 

[4] Pursuant to M.G.L. c. 6, s.57, MAC is authorized to pay its members $25.00 for each day of service as a commissioner. 

[5] For the purposes of the Commission's regulations, 930 CMR 2.00, Designations of Public Employees, "person who receives no compensation" is defined as a person serving in a position for which no compensation is authorized or a person serving on a board, commission or council no member of which is authorized to receive compensation. 930 CMR 2.02(14). 

[6] Although receipt of other materials prior to the Notice is not a relevant factor in establishing a violation of M.G.L. c. 268B, s.5, the Commission credits the position of the Petitioner that the Respondent did in fact receive the prior Commission material regarding the filing of his Statement mailed to his business address. See, Duato v. Commissioner of Public Welfare, 359 Mass. 635, 641(1971). 

[7] On April 12. 1983, the Commission adopted a schedule for the imposition of civil penalties on those who fail to file timely Statements within ten days after receipt of a Notice. The schedule calls for a daily fine of $10.00 per day for the first ten working days and $20.00 per working day thereafter. In the instant case, where the Respondent filed his Statement forty-nine days after the expiration of the ten-day period following the Commission's Notice, a fine of $880.00 would ordinarily be warranted. However, for the reasons stated in the Commission's decision In the Matter of Vernon Thornton,1984 SEC 171 issued January 13,1984, the maximum fine in late-filed Statement cases is $500.00.