Decision  In the Matter of Paul Truehart- Disposition Agreement

Date:	06/30/2011
Organization:	State Ethics Commission
Docket Number:	10-0025

Disposition Agreement

The State Ethics Commission (the "Commission") and Paul Truehart ("Truehart") enter into this Disposition Agreement pursuant to Section 5 of the Commission's Enforcement Procedures. This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j).

On March 19, 2010, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Truehart. On June 18, 2010, the Commission concluded its inquiry and found reasonable cause to believe that Truehart had violated G.L. c. 268A, § 17.

The Commission and Truehart now agree to the following findings of fact and conclusions of law:

Findings of Fact

1. Truehart was, from 2008 to 2010, an elected member of the Southampton Board of Health ("BOH").

2. Truehart is licensed to install septic systems and owns Truehart Paving and Construction Services ("Truehart Construction"), a sole proprietorship located in Southampton.

11 East Street

3. On May 27, 2008, the BOH approved an application and plans for a septic system upgrade at 11 East Street, Southampton.

4. Truehart abstained as a BOH member from approving the application and plans for the 11 East Street septic system upgrade.

5. The application listed Truehart Construction as performing the septic system work.

6. Truehart, d/b/a Truehart Construction, upgraded the septic system and charged $19,500 for the work.

7. On July 11, 2008, Truehart, as Truehart Construction's owner, signed the Title V Certificate of Compliance Designer and Installer Sign-off form ("Title V Certificate") for the 11 East Street property for submission to the BOH in order to obtain a BOH Certificate of Compliance.

2 Parsons Way

8. In mid-October 2009, the BOH, through its Health Agent, approved an application and plans for the repair of a septic system at 2 Parsons Way, Southampton, which had failed inspection.

9. Truehart abstained as a BOH member from approving the application and plans for the 2 Parsons Way septic system repair.

10. The application listed Truehart Construction as performing the septic system work.

11. Truehart, d/b/a Truehart Construction, repaired the septic system and charged $2,900 for the work.

12. Upon completion of the repair, Truehart, as Truehart Construction's owner, contacted the BOH's Health Agent to inspect Truehart's work.

13. On October 26, 2009, Truehart, as Truehart Construction's owner, signed the Title V Certificate for 2 Parsons Way for submission to the BOH.

11 Riverdale Road Extension, Parcel 2A and

17 Riverdale Road Extension, Parcel 2B

14. In November 2007, the BOH approved applications and plans for septic systems construction at 11 and 17 Riverdale Road Extension. Truehart was not a member of the BOH in 2007 and did not participate as a BOH member in the BOH approval process. Truehart was elected to the BOH in 2008.

15. Subsequent to such BOH approval, the properties were sold, and the new owner hired Truehart Construction in 2009 to perform site work and install the septic systems.

16. Truehart, d/b/a Truehart Construction, performed the site work and constructed the septic systems for $46,858.

17. Upon completion of the construction, Truehart, as Truehart Construction's owner, contacted the BOH's Health Agent to inspect Truehart's work.

18. On September 28, 2009, Truehart, as Truehart Construction's owner, signed the Title V Certificates for 11 and 17 Riverdale Road Extension for submission to the BOH.

Conclusions of Law

Section 17(a)

19. Section 17(a) of G.L. c. 268A prohibits a municipal employee from, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receiving or requesting compensation from anyone other than the city or town or municipal agency in relation to any particular matter in which the same city or town is a party or has a direct and substantial interest.

20. As a BOH member, Truehart was a municipal employee as that term is defined in G.L. c. 268A, § 1(g).

21. The BOH decisions to approve applications and plans for septic system upgrades, repairs or installations were particular matters.

22. The Health Agent's inspections of the Parsons Way repairs and Riverdale Road Extension construction were particular matters.

23. Because the applications and plans for septic system upgrades, repairs, installations and inspections involved approvals by the BOH and/or its Health Agent, the Town of Southampton had direct and substantial interests in these particular matters.

24. The compensation that Truehart requested and received from the owners of 11 East Street, 2 Parsons Way and 11 and 17 Riverdale Road Extension for upgrading, repairing or installing the septic systems and signing the Title V Certificates was in relation to the BOH decisions to approve the applications and plans, and/or its Health Agent's inspections.

25. This compensation was not as provided by law for the proper discharge of Truehart's official duties as a BOH member.

26. By acting as described above, Truehart violated § 17(a).

Section 17(c)

27. Section 17(c) of G.L. c. 268A prohibits a municipal employee from, otherwise than in the proper discharge of his official duties, acting as agent or attorney for anyone other than the city or town or municipal agency in prosecuting any claim against the same city or town, or acting as agent or attorney for anyone in connection with any particular matter in which the same city or town is a party or has a direct and substantial interest.

28. As stated above, the BOH decisions to approve the applications and plans for septic system upgrades, repairs and installations, and the Health Agent's inspections, were particular matters. Because the applications, plans and inspections involved BOH and/or Health Agent approval, the Town had direct and substantial interests in those particular matters.

29. By signing the Title V Certificates of Compliance for 11 East Street, 2 Parsons Way and 11 and 17 Riverdale Road Extension for submission to the BOH, Truehart acted as agent on behalf of the owners of those properties.

30. By contacting the Health Agent to inspect Truehart's work at 2 Parsons Way and 11 and 17 Riverdale Road Extension, Truehart acted as agent on behalf of the owners of those properties.

31. Truehart acted on behalf of the owners of 11 East Street, 2 Parsons Way and 11 and 17 Riverdale Road Extension in connection with the BOH decisions to approve the applications and plans, and/or the Health Agent's inspections.

32. Truehart's actions as agent were not in the proper discharge of Truehart's official duties as a BOH member.

33. By acting as described above, Truehart violated § 17(c).

34. Truehart states that he believed that by abstaining as a BOH member as described above, he would be in compliance with the conflict of interest law. By so abstaining, Truehart did in fact comply with G.L. c. 268A, § 19, which prohibits a municipal employee from participating as a municipal employee in a particular matter in which he has a financial interest. However, § 17 imposed additional restrictions on Truehart, which could not have been addressed by Truehart abstaining as a BOH member. To comply with § 17, Truehart needed to refrain from performing private compensated work in connection with any septic system applications approved by the BOH, which included the septic system installations, signing the Title V Certificates, and contacting his subordinate, the Health Agent, to perform inspections.

In view of the foregoing violations of G.L. c. 268A by Truehart, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the basis of the following terms and conditions agreed to by Truehart:

(1) that Truehart pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $3,000 as a civil penalty for violating G.L. c. 268A, § 17(a) and (c); and

(2) that Truehart waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.