|Organization:||State Ethics Commission|
- Appearance for Petitioner: Marilyn L. O'Connell, Esq.
- Respondent: Sean G. Mullin
|Organization:||State Ethics Commission|
The Petitioner filed an Order to Show Cause on September 27,1983 alleging that the Respondent, Sean G. Mullin, 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 November 15,1983 before Commissioner David Brickman, a duly designated presiding officer. See, M.G.L. c. 268B, s.4(c). The parties waived their right to present oral arguments before the full Commission and the Petitioner submitted a brief in support of its position. The Respondent did not file a brief. 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, Sean G. Mullin, was an Assistant Appointments Secretary of the Governor's Office, from September 20, 1982 until December 31, 1982.
2. In November, 1982 the Respondent was designated by the Governor 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.
3. The Respondent failed to file his 1982 Statement by May 1, 1983.
4. On May 17, 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.
5. The Respondent failed to file his 1982 Statement within ten days of receipt of the Notice.
6. 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.
7. The Respondent filed his 1982 Statement on July 22, 1983, thirty-eight days after the expiration of the ten-day period contained in the Notice.
8. The Respondent admits receiving the Commission's Notice but states that because of his out-of-state employment commitments between May, 1983 and July, 1983, he forgot to file his 1982 Statement as required.
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. 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 Respondents disregard of the filing requirement, the Commission finds that a civil penalty of $500, rather than $660 is appropriate. See, fn. 4, supra.
On the basis of the foregoing, the Commission concludes that Sean G. Mullin 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. Mullin to pay a civil penalty of five hundred dollars ($500.00).