Decision  In the Matter of Sean G. Mullin

Date:	01/13/1984
Organization:	State Ethics Commission
Docket Number:	233

• Appearance for Petitioner: Marilyn L. O'Connell, Esq.
• Respondent: Sean G. Mullin

I. Procedural History

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[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 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.

II. Findings of Fact

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"[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.

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. 

Page 169 

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.

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. 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.[4] 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.

V. Order

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).[5]

[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 yell 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 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: any person who holds a major policymaking position in a governmental body..." M.G.L. c. 268B, s.1(o). 

[4] 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 thirty-eight days after the expiration of the ten-day period following the Commission's Notice, a fine of $660.00 would ordinarily be warranted. However, for the reasons stated in the Commission's decision in In the Matter of Vernon Thornton, 1984 Ethics Commission 171 issued today, the maximum fine in late-filed cases is $500.00. 

[5] The Respondent has demonstrated that full payment of this fine in a single transaction would impose financial hardship on him. Accordingly, the Commission will allow the Respondent to make two monthly payments of $250.00 each to commence thirty days after he is notified of this Decision an Order. The second payment should be made within the following thirty days. Compare, In the Matter of Thomas Chilik, 1983 Ethics Commission 130.