Decision  In the Matter of Richard L. Reynolds

Date:	11/09/1989
Organization:	State Ethics Commission
Docket Number:	326

• Appearance for Petitioner: Freda K. Fishman, Esq.
• Appearance for Respondent: Robert E. McLaughlin, Esq.
• Commissioners: Hennessey, Ch., Basile, Epps, Jarvis[1]

I. Procedural History

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The Petitioner initiated these adjudicatory proceedings on March  12, 1987 by filing an Order to Show Cause pursuant to the  Commission's Rules of Practice and Procedure, 930 CMR 1.01(5)(a).  The Order alleged that the Respondent had violated G.L. c. 268A,  s.17(c) on two occasions. Specifically, the Petitioner alleged that  the Respondent acted as an agent for the Periwinkle Field Trust by  personally appearing before the Saugus Planning Board (Board) on  September 19 and October 3, 1985 in connection with the Board's  approval of the definitive subdivision plan for Periwinkle Park,  a matter in which Saugus was a party and had a direct and  substantial interest.

The Respondent filed his Answer to the Order to Show to Cause  on April 10,1987, admitting that, at all times relevant, he was a  member of the Saugus Board of Selectmen (Selectmen) and the trustee  of Periwinkle Field Trust, but denying that he appeared as the  agent of the trust before the Board on September 19, and October  3, 1985.

Prior to the hearings, the Respondent submitted a motion that  Presiding Officer, A. John Pappalardo, recuse himself and a motion  that the Commission disqualify Commissioner Pappalardo on grounds  of conflict of interest. The motion to recuse was denied by the  Presiding Officer. The Commission denied the motion to  disqualify.[2]

An adjudicatory hearing was held on February 15, 1989. At the  close of the Petitioner's case, the Respondent moved, pursuant to  930 CMR 1.01(6)(d), for a directed finding on the grounds that the  Petitioner had failed to prove that the Respondent acted as an  agent or attorney for anyone in connection with the subdivision  approval and that the Town of Saugus had a direct and substantial  interest in the subdivision plan application. The motion was taken  under advisement by Commissioner Pappalardo for consideration by  the full Commission. The Respondent then presented his case.

The parties filed post hearing briefs and presented oral  arguments before the Commission on September 20, 1989. In his post  hearing brief and at oral argument, the Respondent raised the  additional contention that he was entitled to an exemption under  s.17[3] and that the Petitioner had failed to meet its burden of  proof that said exemption was not applicable. In rendering this  Decision and Order, each undersigned member of the Commission has  considered the testimony, evidence and argument of the parties,  including the bearing transcript.

II. Findings of Fact

1. From April, 1983 to November, 1985, the Respondent was a  member of the Saugus Board of Selectmen (Selectmen).

2. The Respondent is an attorney and civil engineer.

3. In early August, 1982, the Respondent purchased a piece of  property at 170 Hamilton Street in Saugus.

4. After purchasing the property, the Respondent sought guidance  from the Saugus Planning Board regarding development of the  property. The Planning Board expressed concern about the extent of  blasting that would be required in order to develop the property  into single family dwellings.

5. At the suggestion of the Planning Board, the Respondent  developed a plan for multi-density housing on the Hamilton Street  site. The plan envisioned thirty townhouses and was a multi-  million dollar project. The Respondent considered this real estate  development to be a substantial investment.

6. Prior to becoming a Selectman, the Respondent made  presentations to the Planning Board and to the Town Meeting  regarding zoning changes for the development project.

7. In March, 1983, a vacancy arose on the Saugus Board of  Selectmen due to a resignation. The Respondent accepted  appointment to the vacant position.

8. In April, 1983, the Respondent transferred the property at  170 Hamilton Street to a family trust, the Periwinkle Field Trust,  of which the Respondent is a trustee and his family members are the  beneficiaries.

9. In May, 1984, a complaint was received by the Ethics  Commission regarding the Respondent's participation before various  boards while he was a Selectman.

10. As a result of the May, 1984 complaint, the Respondent, on  August 29, 1984 requested a written advisory opinion from the  Ethics Commission regarding whether he could, while a Selectman,  appear before the Town and Town boards on behalf of Periwinkle  Field Trust.   

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11. The Ethics Commission authorized and issued to the  Respondent formal opinion EC-COI-84-117 on October 16, 1984. The  Commission concluded that the Respondent could not appear as  trustee of Periwinkle Field Trust before the Town and Town boards  without violating G.L. c. 268A, s.17. As a Selectman, the  Respondent was not eligible for any s.17 exemptions.[4]

12. On September 17, 1985, the Town Clerk's Office received an  application for approval of a definitive subdivision plan for  Periwinkle Park, 170 Hamilton Street, Saugus.

13. The owner of the property and the applicant of the plan was  Periwinkle Field Trust.

14. The plan was submitted by the Respondent as trustee of  Periwinkle Field Trust.

15. On September 19, 1985, the Saugus Planning Board held a  public hearing on the subdivision application of Periwinkle Field  Trust.

16. The Respondent and his daughter, Jane, were present at the  hearing.

17. At the September hearing, the Respondent intended that Jane  would make the presentation of the subdivision plan to the Board.

18. Prior to 1985, Jane was minimally involved with the  development of Periwinkle Park. At all times relevant, she was not  an attorney.

19. The Planning Board regarded the Respondent, not Jane, as the  most knowledgeable person at the hearings regarding the plan.

20. At the September hearing, members of the Planning Board  addressed questions directly to the Respondent regarding the  proposed road, parking, hydrants, water mains, and the opinions  of other Town departments about the project. They asked the  Respondent to provide further information from other Town boards.  The Respondent answered the Board's questions.

21. At the September bearing, abutters and citizens expressed  their concerns about the project and raised questions regarding  traffic safety, drainage, the proposed road and proposed blasting.  The Respondent answered the questions, agreed to install a  catch basin, agreed to obtain a pre-blasting survey and to obtain  insurance to cover any damage from blasting, and agreed to install  stop signs.

22. The Respondent was present at the September 19, 1985 meeting  as a trustee of Periwinkle Field Trust.

23. On October 3, 1985, the Planning Board held a further public  hearing on the Periwinkle Park plan.

24. At both hearings, the Planning Board was concerned about  problems that neighbors were voicing about the Periwinkle Park  project.

25. The Planning Board utilized the hearings as a public forum  to express clearly what conditions the Board wanted included in the  definitive plan.

26. The Respondent and his daughter, Jane, were present at the  October 3, 1985 Planning Board meeting.

27. On October 3,1985, the Respondent presented the Planning  Board with a letter regarding potential traffic safety at the  development that the Saugus safety officer had delivered to the  Respondent at the Respondent's office.

28. At the October 3, 1985 meeting, the Planning Board requested  the installation of a flashing light at Periwinkle Park. The  Respondent agreed.

29. At the October hearing, the Respondent agreed to include a  traffic island at the entrance of Periwinkle Park.

30. During the October hearing, at the request of an abutter,  the Respondent agreed to install a concrete curb.

31. At the October hearing, the Respondent and the Planning  Board discussed the requirements and conditions that the Planning  Board wanted to be included in the covenant agreement.

32. The Respondent was present at the October 3, 1985 meeting  as a trustee of Periwinkle Field Trust.

III. Decision

The Respondent has been charged with two separate violations of  G.L. c. 268A, s.17(c). Prior to addressing the substantive  allegations, we will address the motion for a directed finding.

A. Motion for a Directed Finding

The Respondent contends that he is entitled to a directed  finding on the grounds that the Petitioner    Page 426   

failed to produce sufficient evidence to support a prima facie case  of a s.17(c) violation. To prove a s.17(c) violation, the  Petitioner is required to show that the Respondent: (i) at all  relevant times was a municipal employee; (ii) otherwise than in the  proper discharge of his official duties acted as agent for someone;  (iii) in connection with any particular matter in which the same  municipality is a party or has a direct and substantial interest.

Having considered the evidence submitted by the Petitioner, in  the light most favorable to the Petitioner, the Commission  concludes that the evidence is adequate to support an inference  imposing liability on the Respondent. See, Mullins v. Pine Manor  College, 389 Mass. 47, 56 (1983); Sahagan v. Commonwealth, 25 Mass.  App. Ct. 953(1988); O'Malley v. Putnam Safe Deposit Vaults, Inc.,  17 Mass. App. Ct. 332, 333 (1983). It is undisputed that the  Respondent was a municipal employee at all relevant times and that  the subdivision application was a particular matted before the  Board. The documentary evidence demonstrates that the Town had a  direct and substantial interest in the contents of the subdivision  plan in order to determine whether the plan complied with local  regulations. The meeting minutes indicate that the Board was  concerned with the placement of hydrants, utilities, public safety,  traffic patterns and the installation of roads in the subdivision  plan. Furthermore, the covenant between the Town and the applicant  trust addressed issues of traffic safety, fire protection, road  construction, placement of utilities, street lighting, parking and  maintenance. All of these issues are of direct and substantial  interest to the Town, and the Town was a party to the covenant.  See, G.L. c. 41, s.81U.

Finally, a reasonable inference can be drawn from the  documentary evidence that the Respondent, as trustee of the  applicant trust, was acting as an agent for the trust before the  Board in order to gain approval for the application. The  application before the Board was on behalf of Periwinkle Field  Trust, the owner of the property, and was filed by the Respondent,  not in his personal capacity, but as trustee. Also, the September  Board minutes identify the Respondent as trustee of the trust.  From the minutes, it may be reasonably inferred that the Board  questioned the Respondent regarding the plan and negotiated with  the Respondent to obtain suitable conditions in the plan to meet  public safety and traffic concerns. In order for the Planning Board  to obtain the conditions it was seeking, the Board needed to bind  the applicant/trust and sought agreements from the Respondent as  the trust's representative. The Respondent participated by  answering questions, agreeing to conditions and discussing the  covenant. Therefore, the Commission concludes that sufficient  evidence was presented on each element to support an inference that  the Respondent violated s.17 on two occasions. The motion for a  directed finding is therefore denied.

B. Substantive Violations

The relevant portion of s.17(c) applicable to this case provides  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 same city or  town is a party or has a direct and substantial interest. It is  uncontested that, at all relevant times, the Respondent was a  Selectman and, thus, a municipal employee. See, District Attorney  for the Hampden District v. Grucci, 384 Mass. 525, 528 (1981). The  Respondent also agrees that the Periwinkle Park subdivision  application was a particular matter within the meaning of G.L. c.  268A. The issues in dispute are whether the Town was a parry to  or had a direct and substantial interest in the subdivision  application and whether the Respondent acted as an agent on behalf  of the Periwinkle Field Trust before the Board.

1. Particular Matter of Direct and Substantial Interest to Saugus

The Respondent argues that the subdivision approval does not  implicate a direct and substantial interest of the Town because  the ultimate obligation of the Board is the ministerial act of  signing off on the application if it fulfills the requirements of  Town regulations. We conclude that this argument fails because the  Town possesses substantial authority to require alterations and  amendments to plans in order to promote the health, welfare and  general safety of the community. See, G.L. c. 41, s.81K-81GG. Among  other things, the Board has the power to adopt rules and  regulations pertaining to subdivision control, to amend subdivision  plans, to request conditions, covenants and bonds. G.L. c. 41,  s.s.81Q, 81U, 81W. The Planning Board must exercise its powers  with due regard for the provisions of adequate access to all of  the lots in a subdivision by ways that will be safe and  convenient for travel; for lessening congestion in such ways and  in the adjacent public ways; for reducing danger to life and  limb in the operation of motor vehicles; for securing safety in  the case of fire, flood, panic and other emergencies; for  insuring compliance with the applicable zoning ordinances or  bylaws; for securing adequate provision for water,   

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sewerage, drainage, underground utility services, fire, police  and other similar municipal equipment, and street lighting and  other requirements where necessary in a subdivision; and for  coordinating the ways in a subdivision with each other and with  the public ways in the city or town in which it is located ad  with the ways in neighboring subdivisions. G.L. c. 41, s.81M.

See, e.g. North Landers Corp. v. Planning Board of Falmouth, 382  Mass. 432, 437-438 (1981); Costanza and Bertolino, Inc. v. Planning  Board of North Reading, 360 Mass. 677,679 (1971).

Therefore, the Board has the obligation to insure that a  subdivision plan complies with all local health and safety  regulations. This Commission has stated in analogous cases that  "the Town has a direct ad substantial interest in a application  for, and issuance of a [building] permit because the issuance of  a permit is the local building official's decision or determination  that the work complies with all relevant codes, laws, ordinances,  rules ad regulations." EC-COI-88-9; see e.g., In the Matter of  Robert P. Sullivan, 1987 SEC 312 (release from bond; occupancy  permits) EC-COI-87-31 (application, decision to issue ad permit for  installation of septic systems); EC-COI-84-76 (zoning matters ad  revenue bonding); EC-COI-83-153 (town permits and approval required  for building construction). Accordingly, the Commission finds that  the Town has a direct ad substantial interest in the Periwinkle  Park subdivision plan application. See, Commonwealth v. Canon, 373  Mass. 494,498(1977); Braucher, Conflict of Interest in  Massachusetts in Perspectives of Law, Essays for Austin Wakeman  Scott (1964), p.16.

Moreover, the evidence presented in this case confirms the legal  conclusion that the Town has a direct ad substantial interest. The  documentary evidence ad the testimony in this case demonstrate that  the Saugus Planning Board reviewed the Periwinkle Park plan in  light of its statutory mandate, as well as its rules and  regulations. Among the issues addressed were blasting in the area,  traffic flow, road construction, street lighting, utilities,  removal of trash and snow, and public safety. Mr. Long, Chairman  of the Board, testified that the Board was sensitive to the  neighbors concerns and that there were certain conditions the Board  wanted included in the plan ad the covenant for the benefit of the  Town. Accordingly, the Commission concludes that the Town's  interest in the subdivision application was direct and substantial,  and that the obligation of the Town in its review of the  application was not ministerial.

2. Agency

The term "agent" is not deemed in G.L. c. 268A, and the  Commission is charged with interpreting the term in light of the  overall remedial purpose and intent of the conflict of interest  law. See, e.g., United State v. Evans, 572 F.2d. 455, 480 (5th Cir.  1978); Everett Town Taxi, Inc. v. Board of Aldermen of Everett,  366 Mass. 534, 536 (1974). Section 17 is premised on the principle  that "public officials should not in general be permitted to step  out of their official roles to assist private entities or persons  in their dealings with government." Perkins, The New Federal  Conflict Law, 76 Harv. L. Rev. 1113, 1120 (1963). As Buss has noted,  [t]he appearance of potential impropriety is raised - influence  peddling, favoring his private connections and cheating the  government. Whether or not any or all of these evils result,  confidence in government is undermined because the public cannot  be sure that they will not result." Buss, The Massachusetts  conflict of Interest Statute: An Analysis, 45 B.U. L.Rev. 299, 322  (1965). See also, Town of Edgartown v. State Ethics Commission,  391 Mass. 83, 88-89 (1984).

In light of the underlying purpose of s.17, the Commission has  adopted the approach of the federal courts which have utilized an  expansive definition of the term "agent" within the federal  counterpart of s. 17(c) ad which have stated that the definition is  not limited to its strict common law interpretation. See, In the  Matter of Robert Sullivan, 1987 SEC 312; In the Matter of James M.  Collins, 1985 SEC 228; and United States v. Sweig, 316 F. Supp. 1148,  1157 (S.D.N.Y. 1979). In the Matter of Robert P. Sullivan, the  Commission 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 ad submitting  applications." Sullivan, supra at 31-315. See also, In the Matter  of James M. Collins, supra at 228, 231; EC-COI-84-116. Thus, the  keystone is that one is acting in a representational capacity.[7]  See, Perkins, The New Conflict of Interest Law, Harv. L. Rev. 1113,  1146 (1963). Participation in the form of "merely speaking or  writing on behalf of a non-state party would be acting as agent."  Buss, supra, at 326.

In EC-COI-84-117, the Commission issued an opinion to the  Respondent which concluded that the Periwinkle Field Trust was a  distinct legal entity and that, due to the fiduciary relationship  between the trustee and trust, the Respondent would be acting as   

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the legal representative of the trust in any appearances  before municipal boards. The Commission's conclusion was based upon  the distinguishing legal characteristics of a trust  relationship.[8] Commission now reaffirms this opinion. Further,  the evidence in this case does not warrant disregard of the trust  as a separate legal entity.

The Respondent submitted the subdivision application as the  trustee of Periwinkle Field Trust. The September meeting minutes  identify the Respondent as trustee. The applicant and owner of the  property was the trust. The covenant reviewed by the Respondent and  the Board at the October meeting was a covenant between the Town  and the owner/trust.

As trustee, Reynolds owed strict duties of loyalty and good  faith to the trust. A trustee, similar to other fiduciaries, is  prohibited from advancing his own personal or business interests  at the expense of the trust. See, Ball v. Hopkins, 268 Mass.  260,266-269 (1929). Given these fiduciary duties, it cannot be  assumed that the Respondent was advancing his own personal interest  in his discussions with the Board. It can be reasonably inferred  that Respondent was acting on behalf of, and with the knowledge and  consent of, the beneficiaries because if be was not, he would be  in violation of his fiduciary duties. See, In the Matter of Robert  P. Sullivan, supra at 312, 315. The Commission has previously  indicated that "if the conduct of the parties 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. In the Matter of Robert P. Sullivan, supra at 315; In the  Matter of Joseph P. Zora, Sr. and Joseph P. Zora, Jr., 1989 SEC  401; Choates v. Board of Assessors of Boston, 304 Mass. 298, 300  (1939).

Upon reviewing the facts, the Commission concludes that the  Respondent was acting on behalf of Periwinkle Field Trust. The  Commission finds that the Board wanted particular conditions  included in the development plan which resulted in negotiations  between the parties and in which the Respondent actively  participated. The Board sought a commitment from the trust  regarding these conditions which only the representative of the  trust was able to do. The record is devoid of evidence that the  Respondent acted other than in a representative capacity or that  the Respondent informed the Board that he was present in his  personal capacity and not as a representative of the applicant  trust. It would reasonably appear to members of the Board that the  Respondent was representing the interests of the trust and had  authority to bind the trust. See, In the Matter of Paul H.  Sullivan, 1988 SEC 340, 343. Further, the covenant ran between the  Town and the trust, not to the Respondent personally. The  subdivision approval was given to the trust, not to the Respondent  personally, as the application was submitted by the trust.

The Respondent argues that he did not intend to be the trust's  representative at the public hearings, but rather, had assigned  this task to his daughter, Jane, in order to comply with the  Commission's opinion in EC-COI-84-117. Although the Respondent's  intention is a mitigating factor for purposes of disposition, it  does not insulate him from liability. The Commission has indicated  that the presence of a recognized spokesperson may dispel the  appearance of agency. In the Matter of Robert P. Sullivan, supra,  n.7. However, the Commission does not find adequate evidence to  support a finding that Jane acted as the representative of the  trust for purposes of the subdivision application. The record does  not indicate that Jane was publicly recognized as the spokesperson  or representative of the trust or that she had authority to make  commitments with the Board. The Commission credits the testimony  of Long, the Chairman of the Planning Board, who stated that he did  not consider Jane to be the representative who could bind the trust  and that, throughout the history of the project, the Respondent had  been the driving force. Further, the evidence does not indicate  that Jane participated in answering the Board's questions or  negotiating conditions in the plan, or that the Respondent deferred  the Board's questions to his daughter. In spite of the  Respondent's good intentions, he exercised poor judgment in his  attempt to comply with the 1984 advisory opinion. The prudent  course for a public official to avoid an appearance of a conflict  of interest under G.L. c. 268A, s.17 is to designate a spokesperson  who has authority to negotiate on behalf of and to bind the trust.  This spokesperson should be publicly recognized so that all parties  are knowledgeable about the status of the designated agent.

Even assuming for the sake of argument that Jane did act as  spokesperson for the trust, the Respondent could also be found to  be acting as an agent for the trust. The Commission has stated  that "[t]he mere presence of a recognized spokesperson, without  more, does not prevent a finding that someone eke is also acting  as agent." In the Matter of Paul H. Sullivan, supra at 344 (citing  2A C).S. Agency s.31(1985) at p. 593). The evidence in this case  demonstrates that it was the Respondent, not Jane, who possessed  the authority to act on behalf of the trust.

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An additional affirmative defense argued by the Respondent is that  even if the Commission finds that he acted on behalf of the trust,  he is exempt by the provisions of s.17, 9. The witness exemption  states that s.17 does not prevent a municipal employee from giving  testimony under oath or making statements required to be made under  penalty for perjury or contempt." The legislative intent underlying  this exemption is to facilitate the administration of justice by  permitting government employees to honor a subpoena and to provide  sworn testimony in judicial proceedings pertaining to claims or  other transactions involving the government. See, Manning, Federal  Conflict of Interest Law, 97 (1964); Buss, supra at 344. The  Commission has applied this exemption in situations where state  employees are required to provide uncompensated testimony in  lawsuits in which the state is a party. EC-COI-83-69; 83-45;  Braucher, supra at 18-19.

The Commission does not agree with the Respondent that the  Petitioner bears the burden of proof to establish ineligibility for  the witness exemption. The Commission previously determined that  the burden of proof lies with the Respondent claiming the  exemption, not with the Petitioner. In the Matter of Joseph D.  Cellucci, 1988 SEC 346,349. To allocate the burden of proof of  exemption to the Petitioner contradicts the expressed intent of the  original framers of G.L. c. 266A. In its Final Report, the Special  Commission on Code of Ethics explained that the format they had  chosen for the statute "was deliberately designed in order to avoid  the necessity of indictment and proof which must carry the burden  of negating all such possible exceptions and exemptions" and  declared that "[i]t was the judgment of the [Special] Commission  that the burden of proof of an exception or exemption should be on  the public official who claims it." Mass. House Doc. No. 3650,  Final Report of the Massachusetts Special Commission on  Ethics, (April 1962) at 10. Because the Special Commission,  within the context of criminal proceedings, placed the burden of  proof of an exemption on the public official who claims it, we do  not find it unfair to allocate this burden of proof to the public official  during civil proceedings.

The Commission concludes that the Respondent did not plead or  prove his eligibility for the exemption. 930 CMR 1.01(5)(b). The  Respondent raised the exemption issue in his post hearing brief  and at oral argument, after the adjudicatory hearing had ended. He  did not present ay evidence that he either testified under oath,  made statements under the penalty of perjury before the Board, or  was required to provide such testimony. Therefore, the exemption  is not applicable to him.[9]

IV. Conclusion and Sanction

In conclusion, the Commission finds, by a preponderance of the  evidence, that the Respondent violated G.L. c. 266A, s.17(c) on  September 19, 1985 and October 3, 1985 by acting as agent of  Periwinkle Field Trust in connection with the Periwinkle Park  subdivision application which was a particular matter in which the  Town of Saugus was a party and had a direct and substantial  interest.

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  in this case is $4,000.00, we believe that the imposition of a fine  is not warranted. We find that the Respondent was credible in his  testimony that he had not intended to act as the representative of  the trust but had felt compelled to respond to the Board when he  was addressed by it. The Respondent sought advice regarding the  propriety of representing the trust while he remained a Selectman,  and he made a good faith, albeit ineffectual, attempt to comply  with our opinion in EC-COI-84-117. Further, we note that, in a  recent similar adjudicatory decision construing G.L. c. 266A, s.17,  we did not impose a fine where one of the mitigating factors was  that the Respondents' actions as agent were on behalf of a  corporation whose owners and officers were all family members. In  the Matter of Joseph Zora, Jr. and Joseph Zora, Sr., 1989 SEC 401.  While the Respondent is not entitled to any s.17 exemptions as a  matter of law, his actions, reviewed in the context of a fiduciary  relationship to a family trust, do not merit the imposition of a  fine.

[1] Commissioner Pappalardo resigned from the Commission prior to  the issuance of this Decision and Order, and therefore, is not a  signatory hereto.   

[2] The Respondent did not brief these issues, nor did he present  any evidence of bias. The Respondent did not press this argument  in his post hearing brief or at oral argument. The Commission finds  no evidence of bias at any point during the course of these  proceedings.   

[3] Section 17 9 states: "This section shall not prevent a  municipal employee from giving testimony under oath or making  statements required to be made under penalty for perjury or  contempt.   

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[4] The Commission notes that, in March, 1983, the Respondent may  have received incomplete oral advice from the Attorney General or  the Legal Division of the Ethics Commission concerning his  representing the trust in a fiduciary capacity before Town boards.  The Commission does not find this advice controlling as the  Respondent had received the formal written opinion of the full  Commission one year prior to the violations in this case. All of  the events which form the basis of the violations in this case  occurred after the date the Commission issued EC-C0I-84-117.   

[5] "Particular matter," 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 Jo  their governmental organizations, powers, duties, finances and  property.   

[6] A full- discussion of -the "direct and substantial interest"  requirement is provided in Section B(1) infra.   

[7] The Commission summarized its past precedent regarding the  phrase "acting as agent" in {Commission Advisory No. 13}, dated  January 6, 1988. This Advisory states:   

"An agent is one who acts on behalf of another. A municipal  employee acts as agent when he or she appears before or  otherwise communicates with a municipal board or agency on  behalf of another, submits an application, petition or other  documentation for another, or merely attends a municipal meeting  and answers questions for another."   

[8] These characteristics are: (1) a trust is a relationship; (2)  it is a relationship of a fiduciary character; (3) it is a  relationship with respect to property, not one involving merely  personal duties; (4) it involves the existence of equitable duties  imposed upon the holder of the title to the property to deal with  it for the benefit of another; and (5) it arises as a result of a  manifestation of an intention to create the relationship. 1 Scott  on Trust, s.2.3 (4th Ed. 1987).   

[9] The Respondent does not qualify for any exemption under s.17.  As a Selectman, he is not eligible for special municipal employee  status. G.L. c. 268A, s.1(n). Section 17 also contains an  exemption which permits a municipal employee to act as an agent for  parties with whom he has a fiduciary relationship. However, this  "fiduciary exemption" is only available to appointed officials.  G.L. c. 268A, s.17 7. As an elected official, the Respondent is  ineligible for this exemption.