| Date: | 08/02/2013 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 12-0011 |
This matter concerns allegations that Respondent Richard McClure violated the conflict of interest law, G. L. c. 268A, §17(c),[2] by, while serving as a Town of Chelmsford (“Chelmsford” or “Town”) Planning Board member, acting as attorney for clients who were not the Town or an agency of the Town in connection with two separate lawsuits (the “Recall Lawsuit” and the “Fair Street Lawsuit”) in which the Town was a party and/or had a direct and substantial interest
This matter began on September 19, 2012, with Petitioner’s issuance of an Order to Show Cause alleging that McClure violated G. L. c. 268A, § 17(c) in 2011. McClure answered on October 10, 2012, denying many of the allegations and that he had violated § 17(c). On November 6, 2012, McClure filed an Amended Answer. McClure did not plead any affirmative defenses. On January 31, 2013, the adjudicatory hearing in this matter was held before Commissioner Mangum. By agreement of the Parties, 47 exhibits were admitted into evidence. The Parties also entered into Stipulations of Fact and Law. Both Parties made opening statements. Petitioner rested without calling any witnesses. McClure testified as his sole witness and was cross-examined by Petitioner. On March 6th, the Parties filed their briefs. The Parties made their closing statements before the State Ethics Commission (“Commission”) at the Commission’s June 28, 2013 meeting.
In rendering this Decision and Order, each undersigned member of the Commission has considered the testimony of the witness at the adjudicatory hearing, the evidence in the public record and the arguments of the parties.
The Petitioner must prove its case and each element of the alleged violations by a preponderance of the evidence. 930 CMR 1.01(10)(o). The weight to be attached to any evidence in the record, including evidence concerning the credibility of witnesses, rests within the sound discretion of the Commission. 930 CMR 1.01(10)(n)3.
In order to have established in these adjudicatory proceedings that McClure, while serving as a Planning Board member, repeatedly violated §17(c) in connection with the Fair Street and Recall lawsuits as alleged, Petitioner must have proved, as to each alleged violation, each of the following elements by a preponderance of the evidence: that (1) McClure was a municipal employee; (2) who acted as agent or attorney for anyone other than the Town or a Town agency; (3) in prosecuting any claim against the Town, or in connection with any particular matter in which the Town was a party or had a direct and substantial interest; (4) otherwise than in the proper discharge of his official duties as a Planning Board member and municipal employee.
We first discuss the evidence concerning the Recall Lawsuit and then concerning the Fair Street Lawsuit.
The parties stipulated that McClure was elected to the Planning Board on April 5, 2011 and sworn into office on April 13, 2011, and that, as a Planning Board member, he is a municipal employee as defined in G. L. c. 268A, §1. Municipal planning board members are indisputably municipal employees within the meaning of the conflict of interest law. G. L. c. 268A, §1(g). McClure has admitted that Town Planning Board members are municipal employees. The continuity of McClure’s service on the Planning Board during the entire period relevant to the allegations is established by the evidence in the record that McClure was still on the Planning Board as of October 2011, when he was disqualified as plaintiffs’ counsel in the Fair Street Lawsuit because of his membership on the Planning Board. Thus, this element of § 17(c) has been proved by a preponderance of the evidence.
As set forth above in paragraphs 3 through 14 of the Findings of Fact, the evidence establishes that, between April 21 and May 5, 2011, McClure repeatedly acted as attorney for the private plaintiffs in connection with the Recall Lawsuit against the Town Clerk. Thus, for example, McClure, on behalf of named and unnamed registered voters of Chelmsford: on April 21st, wrote and sent a demand letter to the Town Clerk threatening litigation; on April 22nd, filed in superior court a complaint and an emergency motion for injunctive relief; on April 26th, 27th and 29th, wrote and sent letters to superior court clerks concerning motions and hearings; on April 26th, filed plaintiffs’ emergency motion for further injunctive relief and an amended complaint; also on April 26th sent an email to the Town Manager stating the terms for his withdrawing plaintiffs’ motion; and on April 22nd and May 2nd or 3rd, appeared in court and argued motions.[8] Each of McClure’s actions in the Recall Lawsuit until April 26th were expressly done as attorney for the plaintiffs, as were the April 27th and 29th letters. While in the First Amended Complaint and in other filings on or after April 26th, McClure was named as a plaintiff and purported to act as a “plaintiff pro se”, he was in fact still actively acting as plaintiffs’ attorney through at least the May 2nd or 3rd hearing on plaintiffs’ motion for further injunctive relief. Indeed, because McClure did not withdraw his appearance as plaintiffs’ counsel, and no other attorney actually took any action on behalf the other plaintiffs until the May 5th hearing (which the new attorney attended with McClure), McClure’s representation of the other plaintiffs continued until the court’s May 6, 2011 order disqualifying him. Thus, this element of § 17(c) has been proved by the preponderance of the evidence.
McClure admitted in his Amended Answer that the Recall Lawsuit was a particular matter. The Recall Lawsuit, as a proceeding, claim and controversy, was indisputably a “particular matter” as defined by G. L. c. 268A, § 1(k). McClure, however, denied in his Amended Answer that the Town was a party to or had a direct and substantial interest in the Recall Lawsuit.
Given that the Recall Lawsuit was a suit against the Town Clerk in her official capacity as such the Recall Lawsuit was effectively a suit against a department of the Town, i.e., the office of the Town Clerk, and a particular matter in which the Town was a party. In addition, where the Recall Lawsuit concerned the plaintiffs’ effort to require a recall election for four Town selectmen, and the interpretation of Town Charter and state laws governing such elections, and where the Town Clerk was represented by Town Counsel, the Town clearly had a direct and substantial interest in lawsuit and its outcome. Thus, this element of § 17(c) has been proved by the preponderance of the evidence.
The evidence indicates that McClure’s involvement in the Recall Lawsuit was as a private attorney acting on behalf of his private clients and as a plaintiff. There is no evidence that any of McClure’s acts as an attorney in the Recall Lawsuit were in the proper discharge of his official duties as a Planning Board member. Thus, this element of § 17(c) has been proved by the preponderance of the evidence.
Therefore, Petitioner has proved by a preponderance of the evidence that McClure violated of § 17(c) in connection with the Recall Lawsuit.
This element of §17(c) has been proved by the preponderance of the evidence, as set forth above.
As set forth above in paragraphs 17 through 24 of the Findings of Fact, the evidence establishes that, between April and October, 2011, McClure repeatedly acted as attorney for the private plaintiffs in connection with the Fair Street Lawsuit against the Kohls and the Town. Thus, for example, McClure, as attorney for the plaintiffs: on June 21st, attempted to negotiate a settlement with the Kohls; in June 2011, communicated with Town Counsel and the Kohl’s attorney concerning dropping the Town from the lawsuit; in late September 2011, tried through emails to Town Counsel to convince the Town to abandon its rights to the “paper street” at the center of the dispute in the lawsuit; and during the period of early July into early October, 2011, opposed the Kohls’ motion to disqualify him as plaintiffs’ counsel. Thus, this element of § 17(c) has been proved by the preponderance of the evidence.
McClure admitted in his Amended Answer that the Fair Street Lawsuit was a particular matter. The Fair Street Lawsuit, as a proceeding, claim and controversy, was indisputably a “particular matter” as defined by G. L. c. 268A, § 1(k). McClure denied, however, that the Town was a party to or had a direct and substantial interest in the Fair Street Lawsuit.
The evidence shows that the Town was a defendant in the Fair Street Lawsuit, thus a party to that particular matter. In addition, in the suit, McClure’s clients inter alia alleged that the Town had abandoned whatever interests it had had in the paper street land (except for a sewer easement) and that they were the rightful owners of the land; particular matters in which the Town had a direct and substantial interest. Thus, this element of § 17(c) has been proved by the preponderance of the evidence.
The evidence establishes that McClure’s involvement in the Fair Street Lawsuit was solely as a private attorney acting on behalf of his private clients. There is no evidence that any of McClure’s acts as an attorney in the Fair Street Lawsuit were in the proper discharge of his official duties as a Planning Board member. Thus, this element of § 17(c) has been proved by the preponderance of the evidence.
Accordingly, we find that Petitioner has proved that McClure violated § 17(c) in connection with the Fair Street Lawsuit.
For the above-stated reasons, we conclude and find: that Petitioner has proved by a preponderance of the evidence that McClure repeatedly violated G. L. c. 268A, § 17 in 2011 by, while serving as a Chelmsford Planning Board member, repeatedly acting as attorney for his private clients in the Fair Street and Recall lawsuits in each of which particular matters the Town was a party and had a direct and substantial interest.
In his concluding Brief, McClure argues for dismissal of these proceedings because, “while there may be sufficient facts to warrant finding reasonable cause to believe that a violation of the conflict of interest law has occurred, the violation does not involve either willful misconduct, significant economic advantage, the misuse of influence or confidential information, significant loss to the public or the potential for serious impact on the confidence in its officials.” McClure argues that “the Commission is clearly authorized to utilize its discretion given the unusual circumstances of this particular case to make a finding similar to that in [In the Matter of Jack Speranza, Docket No. 07-0018, 2009 SEC 2246],” in which the Commission, in an exercise of discretion, vacated its prior finding of reasonable cause and authorization of the adjudicatory proceeding and terminated the adjudicatory proceeding.[9] McClure argues that he acted in good faith, was guided in his actions by his duties to his clients, his profession and the Massachusetts Rules of Professional Conduct, and that his “actions in both the Recall Action and the Land Court Action did not constitute a knowing violation of Section 17(c) given the underlying circumstances.”
In its concluding Brief, Petitioner argues that there are numerous exacerbating factors in this case, including McClure’s long experience as an attorney, the multiple warnings, both spoken and written, that McClure received that he was violating § 17(c), and the fact that McClure could have avoided violating the law by withdrawing as plaintiffs’ counsel or resigning from the Planning Board, but chose to do neither until forced by court order. Petitioner asserts that a penalty should be imposed reflecting the willful nature of McClure’s violations.
We conclude that McClure’s violations were not mitigated by any circumstances warranting us to exercise our discretion to dismiss these proceedings. We reject and find disingenuous McClure’s argument that his actions in violation of § 17(c) were the result of his faithful dedication to his duties to his clients, his profession and the Massachusetts Rules of Professional Conduct for the following reasons. First, even if McClure were so motivated, his is a casebook demonstration of why § 17(c) exists: thus, by his actions in commencing and continuing to serve as a private attorney in the Recall and Fair Street lawsuits, McClure placed himself in situations where the interests of and his duties to his private clients and his employing municipality were in conflict, and, in each case, he chose his duties to his clients and their interests over his duties to the Town and its interests, at best mistakenly believing that he had a higher duty to the former than to the latter. Second, if he felt it his duty as an attorney to continue to represent the plaintiffs in the two lawsuits, McClure could easily have avoided the resultant conflicts of interest by resigning from the Planning Board. He chose not to do so, but instead counseled his clients in the Fair Street litigation to drop their claims against the Town so that he could continue to represent them. While willfulness and knowledge are not required elements of a § 17(c) violation, for purposes of determining the resolution of this matter, we find that McClure’s actions, particularly after his warning by Town Counsel on April 22, 2011, were knowing and willful. Under these circumstances, McClure’s violations warrant the civil penalty imposed below.
Accordingly, to the degree that McClure has made a motion to dismiss these proceedings, that motion is DENIED. Therefore, having found that McClure violated G. L. c. 268A, § 17, in connection with the Fair Street and Recall lawsuits as specified above, the Commission, pursuant to the authority granted it by G. L. c. 268B, § 4(j), hereby ORDERS McClure to pay a civil penalty of $5,000 for those violations.
