| Date: | 08/18/2020 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 19-0003 |
| Location: | Boston, MA |
| Referenced Sources: | G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011 |
This matter arises out of the purchase by Stephen Comtois in February 2017 of a 20,000 square foot parcel of undeveloped land located in the Town of Brookfield (“the Property”). At all relevant times, Comtois was the Chair of the Board of Selectmen in the Town and a member of the Town’s Zoning Board of Appeals. In his personal capacity, Comtois owned and operated a Driving School and, on a part-time basis, was a builder. The seller was Beverly Granger, a former resident of the Town who, prior to Comtois’ offer to purchase the Property, had proposed to donate it to the Town.
On April 11, 2019, Petitioner issued an Order to Show Cause against Comtois. The Order alleges that Comtois violated G.L. c. 268A, § 19 by participating as a Board member in the matter of the proposed donation to the Town at a time when he had a financial interest in the matter, § 23(b)(2)(ii) by improperly using his public position to purchase the Property personally, and § 23(b)(3) by improperly acting officially as to a Town resident who publicly confronted him about the purchase of that property. Comtois denies any violation.
An evidentiary hearing was held on November 22, 2019. Four witnesses testified: Alan Jones; Marita Tasse; Herbert Chaffee; and Comtois. Thirty-Two agreed-upon exhibits were admitted into evidence, including two video recordings. Two exhibits were admitted after the close of the hearing, over Petitioner’s objection. The parties presented closing arguments to the Commission on February 27, 2020. In rendering this Decision and Order, each undersigned Commissioner has considered the testimony, the evidence in the public record and the arguments of the parties.
In the summer of 2016, Granger no longer lived in the Town but continued to own the Property, which abutted land previously owned and occupied by her and her husband who had since passed away. Their joint title to the Property by adverse possession had been confirmed in 2011 in Land Court proceedings against a neighbor. Following her husband’s death, Granger held title individually.
The zoning status of the Property was a subject of uncertainty and disagreement among people familiar with it and its history. It was assessed by the Town’s Board of Assessors as a “buildable” lot and was taxed accordingly. Granger had twice requested a tax abatement on the grounds that the determination that it was “buildable” under the Town’s zoning law was incorrect. Both requests were denied by the Board of Assessors. Granger did not challenge the abatement denials in court.
In 2015, Granger had an agreement to sell the Property to a local builder who subsequently withdrew from the transaction before closing because his attorney had advised him of problems in the description of the Property and that it was not “buildable” under the Town Zoning Code. In 2016, the Board of Assessors again treated the Property as “buildable,” and assessed its value at $43,900. Having moved from the Town, Granger had no continuing use for the Property nor any desire to continue to pay the taxes, especially in light of the disparity between its assessed value and its apparent market value that resulted from the uncertainty of its zoning status.
On two occasions in July 2016, Granger met with Town representatives to discuss her situation. The first meeting was with Alan Jones, the Town’s Assistant Assessor. The second was with Jones and Philip Pierce, a member of the Town’s Board of Assessors. At the second meeting, Granger was accompanied by her long-time friend, Marita Tasse, a real estate broker in the Town who was familiar with the title and zoning issues and believed the determination by the Assessors that the lot was “buildable” was incorrect. At the meetings, Granger explained her circumstances and stated that she did not intend to pay the taxes. Jones and Pierce expressed agreement that the assessment on the Property was too high and that they would look into adjusting it “very soon.” They also discussed options for Granger, including marketing the parcel “to a local contractor” who might have a different use in mind, donating the Property to a local land conservancy trust (with its accompanying possible tax benefits), or donating it to the Town.
Jones sent a follow-up email to Tasse, copied to the Board of Assessors and Clarence Snyder, a Selectman, on the afternoon of the second meeting. The email confirmed the substance of the meeting and specifically asked Tasse to let Jones know if either of the “donation” options appealed to Granger. Granger subsequently notified Jones in writing that she “would like to donate” the property to the Town. Jones responded with advice to Tasse concerning the contents of a notice to the Board of Selectmen of Granger’s intentions. In a letter dated August 7, 2016, Granger notified the Board of her desire to donate the Property. It is unclear when Granger actually sent the letter, but its receipt was acknowledged by Jones in an email, on behalf of the Board on September 1, 2016, on which the three Board members were copied. Comtois first became aware of the Property when he read this email.
Over the next months, Town employees and others acting on the Town’s behalf took various steps regarding the proposed donation. Individual Selectmen, including Comtois, advised Jones that the proper procedure required them to vote to place the matter before Town Meeting for acceptance. Jones researched title and property description issues at the Registry of Deeds. He assembled documentation of his findings and obtained approval for and engaged the Town’s outside law firm to confirm the validity of Granger’s ownership, which it did. He obtained an estimate of the cost of clearing the defects in the description of the Property in the deed and to obtain a formal opinion which would be needed by the Town. He kept Tasse informed. The Board’s Administrative Assistant arranged for and published notice that the donation would be considered as an agenda item at its meeting on December 13, 2016.
At the Board meeting on December 13, 2016, Comtois said in substance that the matter had been discussed in the past and that while he generally approved of the concept of donations of property to the Town, the Property was burdened with legal issues that meant the Town would have to pay to get a free and clear title. He described himself as “here to be swayed” on the issue. In response, Jones generally recounted the history of the disputes over ownership and the zoning status of the Property, Granger’s history of paying taxes on the Property which was assessed as if it were “buildable,” and her adamant intention not to pay any more taxes, including those outstanding. All members of the Board, including Comtois, expressed sympathetic understanding for Granger’s situation. Jones explained that the title problem arose from a mistaken description of the Property in the deed (the metes and bounds actually described a different piece of property) and that everyone involved agreed that the actual parcel was owned by Granger. He re-stated the point that Granger’s determination not to pay the taxes meant the Property would wind up back with the Town one way or the other and the expense of clearing the title would be borne then. He said the Town’s outside attorneys had estimated the cost of clearing the title to be $500, and expressed his personal belief that, having paid taxes for years based on what appeared to be a high assessment, Granger had done her part for the Town.
On motion suggested by Comtois, the Board unanimously decided to present the question whether to accept the donation of the Property to the Town for consideration at the next Town Meeting,[1] with the understanding that, if the donation was accepted, the Town would then incur the cost of clearing the title.[2] Jones asked that someone from the Board send a letter to Granger detailing the decision of the Board. Comtois, who had never met or spoken to Granger, responded that he would do so, but that he would “rather call her.” No one objected to a call rather than a letter; and no one objected to Comtois making the call. Comtois asked Jones to provide him with contact information. After the meeting, Jones told Comtois that Tasse had been representing Granger and that he should call her. Comtois knew Tasse, having had some business dealings with her in the past, including working together on at least three real estate transactions.
On the morning of December 14, 2016, Comtois had an approximately five-minute phone call with Tasse. In his testimony, he characterized what he said to her as “straightforward.” Specifically, he told her: The issue had to “go to a town meeting which wasn’t scheduled;” the Town “did not have a warrant open for that;” there “was no article placed on it;” he personally would recommend that the Town Meeting not approve it; and, in substance, that the Board itself would not support the proposal. He did not tell her anything about the overall general tenor, expressed at the Board meeting, of sympathy for Granger’s situation.
Comtois then offered to purchase the Property.[3] There was a discussion about “monetary compensation” in which Tasse said that Granger “would want her back taxes paid as well as the penalties and the interest that had accrued, and then the legal expenses.”
From the moment that Comtois offered to purchase the Property, all of his dealings with Tasse concerned his personal purchase of the Property and he never thereafter pursued the Town’s interest in receiving the Property as a gift. From December 13, 2016 through sometime in mid-January 2017, Jones had multiple communications with Comtois, by email, text, telephone and in person, concerning the status of his dealings with Tasse. Jones engaged in those communications believing that Comtois was at all times acting as the Town’s representative and conduit for communications with Tasse regarding Granger’s proposed donation of the Property to the Town. Comtois always responded evasively to Jones, causing Jones to believe that details of placing the matter of the donation before Town Meeting were progressing. At least on those occasions when he responded to Jones by email, he used his Town email account. Comtois never told Jones that he intended to purchase the Property himself; nor did he inform any Selectman that he was pursuing his personal interests rather than the Town’s, claiming that to have done so would have been a violation of the Open Meeting Law.
In early February 2017, Jones heard a rumor that the Property had been sold. In response, he began logging in on a daily basis to the Registry of Deeds looking for transactions involving property in the Town. Eventually, “it showed up” that the Property had been sold to Comtois.
Comtois paid $200 for the Property and promised to pay “all expenses associated with the purchase.” When he purchased it, he considered using it to store vehicles for his Driving School. Prior to purchasing the Property, Comtois had advocated as Board Chair in at least one Board meeting for businesses to acquire distressed properties by “paying back taxes and fixing the problems.” [4]
At a Board meeting on February 21, 2017, Bruce Clarke, a resident of the Town and Granger’s cousin, publicly confronted Comtois about his purchase of the Property and expressed his belief that Comtois doing so was unethical. Approximately three weeks later, during a snowstorm, the former Chief of the Town’s Police Department, Ross Ackerman, who was then Comtois’ friend and an employee of Comtois’ Driving School, called Comtois after observing Clarke operating a Town snowblower on the sidewalk. Ackerman expressed concerns that Clarke, a retired former employee of the Town, was not properly authorized to be doing that work, that he was concerned about the “ethics” of the hiring, and possible liability for the Town. All Town employees must have a wage authorization approved by the Board in order to work for the Town.
Comtois testified, and the Commission accepts as true, that he was concerned about liability for the Town if an unauthorized person was hurt while doing work for the Town. He immediately contacted the Administrative Assistant for the Board and inquired whether a wage authorization was on file for Clarke. She investigated, called back and informed him that there was not one on file for Clarke.
Comtois then called Herbert Chaffee, the Superintendent of the Town Highway Department and Clarke’s supervisor. Comtois informed Chaffee that Clarke should not be working until a wage authorization was approved and that he wanted him off the sidewalk machine.
Chaffee, who “doesn’t like Comtois very much,” did not act immediately in response to Comtois’ call. Clarke continued to work until Chaffee caught up with Clarke and told him what was going on. Clarke finished up what he was doing, and he went home.
This issue of approving a wage authorization for Clarke came up at a Board meeting on March 21, 2017. Comtois objected because the position had not been posted. The other Selectmen did not share Comtois’ concern and, after debate, all three members of the Board signed the authorization.
Petitioner must prove its case and each element of the three alleged violations by a preponderance of the evidence. 930 CMR 1.01(10)(o)2. The weight to be attached to any evidence in the record, including evidence concerning the credibility of the witnesses, rests in the sound discretion of the Commission. 930 CMR 1.01(10)(n)3. In deciding this case, the Commission must make a determination of every issue of fact or law necessary to its Final Decision. 930 CMR 1.01(10)(o)3.
Section 19 of G.L. c. 268A, prohibits elected municipal officials from personally and substantially participating in matters in which their existing or reasonably foreseeable financial interests might affect their judgment in ways personal and distinct to them as opposed to the populace in general. The purpose of § 19 is to assure the public that a public employee’s official judgments and actions “will not be clouded by potentially competing private [financial] interests.” EC-COI-86-13.
In order to establish a violation of § 19, Petitioner must prove that: (1) Comtois was a municipal employee; (2) he participated as a municipal employee in a particular matter; (3) in which to his knowledge he had a financial interest. See In the Matter of Paul Pathiakis, 2004 SEC 1167, 1174. For the reasons discussed below, we find that Petitioner has met its burden of proof as to each of these elements.
Comtois participated as a municipal employee in a particular matter
We find, and Comtois does not dispute, that the proposed donation of the Property was a particular matter and that his actions concerning the donation, up to and including the portion of his December 14 call to Tasse in which he purported to report the actions taken by the Board, were taken in his capacity as a Selectman and were personal and substantial. He contends, however, that after Tasse “recommended” that he purchase the Property he acted solely as a private individual and not as a Selectman. Further, he argues that his email exchanges and other communications with Jones regarding the status of the Property did not constitute personal and substantial participation.
We find that Comtois participated personally and substantially as a Selectman in the decision whether to submit the proposed donation of the Property to Town Meeting, by (1) participating in a substantive discussion regarding the Property at the December 13, 2016 Board meeting, (2) stating that he would entertain a motion to “place the issue on a Town Meeting warrant to “accept [the] Property and then obtain clear title upon acceptance,” (3) voting in favor of the motion, (4) volunteering to contact Granger about the Board’s decision (5) contacting Tasse by telephone on December 14, 2016 on behalf of the Board, and (6) having multiple communications with Jones, by email on his Selectman’s account, text, telephone and in person, concerning the status of his dealings with Tasse. See In the Matter of Randall Walker, 2019 SEC ____ (Select Board member participated in a particular matter as Chair by discussing with his fellow Select Board members and the Treasurer/Tax Collector whether to auction town-owned land, and by voting to approve the auction at a Select Board meeting).
Comtois knew he had a financial interest in the Property
Section 19 encompasses any financial interest without regard to the size of that interest and whether the financial interest is positive or negative. The financial interest, however, must be direct and immediate or reasonably foreseeable. Financial interests that are remote, speculative or not sufficiently identifiable do not require disqualification under the conflict of interest law. See, e.g., EC-COI-02-2.
Petitioner asserts that Comtois developed a financial interest in the Property prior to the December 13, 2016 Board meeting, arguing that he offered to purchase the Property at some point prior to that meeting.[5] Comtois argues that § 19 is to be interpreted to require “simultaneity,” that is, that a person does not acquire a financial interest in property until the person actually owns the property. Comtois therefore argues that he did not have a financial interest in the Property until he purchased it in February 2017.
For the reasons discussed below, we find that Comtois’ testimony as to when and whether he had a financial interest in the Property is not credible; and that he had a financial interest in the matter when (1) he participated in the December 13, 2016 Board meeting, (2) when he placed the call to Tasse on December 14, 2016, and (3) when he responded to Jones’ inquiries regarding the status of the matter; and that he had knowledge of his financial interest.
Comtois was aware prior to the December 13, 2016 Board meeting of Granger’s intent to donate the Property. He and the other Selectmen received a letter from Granger dated August 7, 2016, informing them of her intentions.[6] There is no evidence of when Granger actually mailed the letter, but its receipt was acknowledged by Jones on behalf of the Board on September 1. Between August 7 and September 1, on August 23, Comtois publicly advocated in favor of private purchases of distressed properties in the Town by paying back taxes and fixing whatever other problems may exist.[7] With hindsight, he was describing a blueprint for his later actions regarding the Property. If not actually foreshadowing his present intent regarding the Property, his comments, at the least reflect a mindset as to how such situations could or should be handled.
Comtois’ characterization of what he told Tasse on December 14, 2016 was not “straightforward.” In light of the video evidence of what actually occurred at the Board meeting, we find that his report to Tasse was anything but honest. His description contained statements that were demonstrably untrue, e.g., that the Board would not support the proposed donation, omitted facts that should have been mentioned to convey the discussions accurately, e.g., that the Board voted unanimously to submit the proposed donation to Town Meeting and that if accepted, the Town would pay to clear the title, and generally painted an unjustifiably negative picture about the prospects that Granger’s proposal would be resolved in a timely and favorable way. We find that his misrepresentations and omissions during the call, as well as his disingenuous characterization of what he said to Tasse, support that he had a financial interest in the Property when he spoke with Tasse on December 14, 2016.
Comtois’ testimony that Tasse recommended that he buy the Property himself is essential to his claim that he did not consider purchasing the Property until he spoke with her. Given its centrality to the case, corroboration of his testimony should have been offered if it existed. The best source of possible corroboration would have been Tasse herself, but Comtois’ counsel never asked generally what she said during the December 14, 2016 call, or specifically whether she made such a recommendation during the call. Moreover, when asked by Petitioner, Tasse credibly denied having recommended to Comtois that he purchase the Property. Additionally, as explained below, we do not accept Comtois’ legal argument that he did not have a financial interest in the Property until he purchased it.
Given that he had never met or spoken with Granger, Comtois’ expressed preference to call her rather than send a letter to report the results of the meeting supports his intent to purchase the Property by attempting to talk her into selling the Property to him and not having a record of what was said.
Comtois both acted and failed to act after his conversation with Tasse on December 14, 2016 in ways designed to hide his efforts to buy the Property. For instance, he did not report to the Board, at any point, that less than 24 hours after voting to present the donation opportunity to Town Meeting, he had begun negotiating to moot that opportunity by buying the Property himself. His purported reason, that it would have violated the Open Meeting Law for him to do so, is not credible because it could have been remedied by disclosure at a Board meeting. Further, we do not credit Comtois’ self-serving testimony that he told the Board’s Administrative Assistant. Additionally, although he claims he told Jones, Jones adamantly denies that he did. We credit Jones’ denial because it is supported by: (a) emails in late December and early January asking for updates which Comtois answered, on his Town email account, evasively,[8] (b) an email exchange on January 22-23, 2017 between him and the Town’s outside lawyer in which the lawyer seeks an update on the status of the donation, to which Jones responds that it is “still in the hands of the Selectmen at this point,” [9] and (c) the fact that Jones was invested in seeing the Property donated to the Town, as demonstrated by the substantial amount of work he performed in furtherance of that objective.
Comtois’ argument that § 19 requires “simultaneity” is unpersuasive. The Commission has consistently interpreted the term “financial interest” as one which is direct and immediate or reasonably foreseeable. See, e.g., EC-COI-86-25, EC-COI-84-96, EC-COI-82-34, In the Matter of Randall Walker, 2019 SEC ____ (Select Board member had a financial interest in purchasing property at the time of his participation as a Board member); See also In the Matter of Matthew Amorello, 2009 SEC 2213, 2217. Comtois’ legal argument is undercut by his incredible testimony that he first considered purchasing the Property when he spoke with Tasse on December 14, 2016.
Section 23(b)(2)(ii) prohibits municipal employees from knowingly using their official positions to secure for themselves unwarranted privileges of substantial value which are not properly available to similarly situated individuals. In order to establish a violation, Petitioner must prove by a preponderance of the evidence that: (1) Comtois was a municipal employee; (2) who knowingly used his official position; (3) to secure an unwarranted privilege for himself; (4) which was of substantial value; and (5) which was not properly available to similarly situated individuals. In the Matter of Edward McGovern, 2016 SEC 2590.
Unwarranted Privilege
“Privilege” is generally defined as “a special legal right, exemption or immunity granted to a person or class of persons; an exception to a duty. Black’s Law Dictionary 1234 (8th ed. 1999). An unwarranted privilege is one that is “lacking adequate or official support” or “having no justification; groundless.” EC-COI-98-2. The use of one’s position for private gain may be an unwarranted privilege. See In the Matter of Diego Nicolo, 2007 SEC 2122, 2124 (use of position to obtain a job was an unwarranted privilege).
Comtois’ purchase of the Property secured for him an unwarranted privilege because, for his own selfish purposes, he used his position as Chair of the Board to “sabotage” Granger’s decision to donate the Property to the Town and the Townspeople’s opportunity to decide whether to accept it. [10]
The unwarranted privilege was of substantial value
Substantial value for purposes of G.L. c. 268A is $50 or more. 930 CMR 5.05. No evidence was presented regarding the Property’s fair market value at the time of Comtois’ purchase. Its assessed value of $43,900 may have been excessive, but even Comtois’ purchase price of $200 plus the payment of certain fees and expenses incurred by Granger far exceeded the statutory amount.
The unwarranted privilege was not available to similarly situated individuals
In August 2016, Jones presented Granger with a number of options for dealing with her desire to rid herself of the tax burden of the Property. She chose to donate the Property to the Town where she and her husband and family members had lived for many years. By December 14, the prospect of fulfilling her desires had advanced to where her intended gift was public knowledge and the Board had voted to place her donation before Town Meeting. Comtois’ dishonest report of the status of her donation derailed Granger’s plans and co-opted them for his private gain. Comtois deceptively created for himself the opportunity to purchase the Property. No one else was in a position to do that.
Comtois used his official position to secure the unwarranted privilege
Comtois contends that the principles set out in the Commission’s Advisory 14-1[11] establish that he did not use his official position in connection with his purchase of the Property because Granger was not someone with whom he was having official dealings. The evidence shows just the opposite and that, in any event, Comtois’ actions did not meet the standards for officials’ permissible private business dealings with someone with whom they also have official dealings.
Comtois’ actions at the December 13, 2016 Board meeting were in discharge of his duties as a Selectman, his report to Tasse (Granger’s representative) was as a representative of the Board and the Town, as were his misleading reports to Jones. Moreover, Advisory 14-1’s permissible private business dealings must not have been initiated by the public employee and the public employee must disclose in writing the details of the dealings, including that it was initiated by the other party. The Commission accepted Tasse’s testimony that Comtois initiated the discussion of his private purchase; and Comtois does not even claim to have made the required written disclosure.
Comtois used his official position knowingly
The Commission finds that Comtois knowingly used his position to purchase the Property. As Chair, he volunteered to represent the Board in communicating its decision to place the donation before the Town Meeting and he did so, albeit misleadingly, in that capacity. Moreover, he responded to Jones, again misleadingly, in the same capacity, even using his Town email account to do so.
Section 23(b)(3) prohibits a municipal employee from knowingly acting in a manner that would cause an informed person to reasonably believe that a third person could improperly influence the employee or unduly enjoy his favor in the performance of his official duties, or that the employee is likely to act or not act as a result of kinship, rank, position or undue influence by anyone. Importantly, a violation of the section requires the appearance of improper or undue influence by another person or actions by the employee likely resulting from the kinship, rank or position of another person.
Petitioner contends that Comtois’ actions on either or both of two occasions would have caused an informed person to reasonably believe that such improper influence could have occurred or demonstrated that Comtois is likely subject to influence as a result of the kinship, rank, position, or undue influence of a third person. The first occasion was Comtois contacting Chaffee and saying, in words or substance, that he wanted Chaffee to stop Clarke from working during the mid-March snowstorm. The second occasion was Comtois opposing a wage authorization for Clarke at a subsequent Board meeting.
The Commission finds that Petitioner did not meet its burden of proving that Comtois’ actions on these two occasions violated § 23(b)(3). It is undisputed that Clarke had publicly confronted Comtois about the purchase of the Property and challenged the ethics of Comtois’ actions. It is also undisputed that Comtois’ actions against Clarke on the first occasion were initiated by the call from his then friend, who was also his then employee and the former Chief of Police, advising him that Clarke was then engaged in snowplowing a municipal sidewalk and expressing his concerns “about the ethics of the hiring, and possible liability for the Town” because Clarke had no wage authorization.
The Commission finds that Comtois too was concerned about liability to the Town and that his concern was understandable. The evidence showed that a wage authorization was required for the job Clarke was performing. An injury to Clarke in these circumstances might, for example, not have been covered by workers’ compensation insurance or by the Town’s liability insurance. Before taking any action to stop Clarke, Comtois confirmed that there was no such authorization on file for him.
There is no evidence that Ackerman’s motives were anything other than what Comtois testified and we find that no reasonable person would conclude that Comtois could have been “improperly” influenced by him, or that his influence was “undue” or the result of his status. The same can be said of the second occasion, which was, more remotely, also the result of the call.
Petitioner has proven by a preponderance of the evidence that Comtois violated G.L. c. 268A, § 19 when, knowing he had a financial interest in the Property, he participated in the decision to submit the proposed donation of the Property to Town Meeting, when he undertook to report the Board’s actions to Granger, when he misleadingly reported the Board’s actions and when he misleadingly reported the status of the matter to Jones, and § 23(b)(2)(ii) when he used his position as a Selectman to purchase the Property personally. Petitioner has failed to prove by a preponderance of the evidence that Comtois violated G.L. c. 268A, § 23(b)(3).
Having concluded that Respondent Stephen Comtois violated G.L. c. 268A,
§§ 19 and 23(b)(2)(ii), and pursuant to the authority granted it by G.L. c. 268B, § 4(j), the State Ethics Commission hereby ORDERS Stephen Comtois to pay the following civil penalties: $10,000 for his violation of G.L. c. 268A, § 19, and $10,000 for his violation of G.L. c. 268A, § 23(b)(2)(ii), for a total civil penalty of $20,000.
DATE AUTHORIZED: July 30, 2020
DATE ISSUED: August 18, 2020
