Decision  In the Matter of Thomas Chilik- SFI Decision and Order

Date:	01/12/1983
Organization:	State Ethics Commission
Docket Number:	182

Decision and Order

Appearing:

David J. Burns, Esq.: Counsel for Petitioner State Ethics Commission;

Thomas A. Chilik: pro se

Commissioners: Vorenberg, Ch.,; Brickman, McLaughlin, Mulligan.

I. Procedural History

The Petitioner, State Ethics Commission (the Commission),
filed an Order to Show Cause on October 22, 1982, alleging that
Respondent Thomas A. Chilik (Respondent) had violated Section 5 of
M.G.L. c. 268B, the financial disclosure law, by failing to file
a Statement of Financial Interests (Statement) within ten days of
his receipt of a Formal Notice of Delinquency. The Respondent filed
an Answer which admitted the allegations, but questioned the
necessity of a fine.

Pursuant to notice, an evidentiary hearing was conducted on
November 23, 1982, before David Brickman, a member of the
Commission duly designated as presiding officer. See. M.G.L. c.
268B, s.4(c). The parties waived briefs, and oral argument was
heard by the full Commission on December 20,1982. In rendering this
Decision and Order, each of the four participating members of the
Commission has considered the evidence presented by the parties.

Page 131

II. Findings of Fact [1]

1. The Respondent, Thomas A. Chilik, general manager of the
Greenfield Montague Transportation Area, was required by G.L. c.
268B, s.5 to file a Statement for calendar year 1981, on or before
May 1, 1982.

2. The Respondent failed to file his Statement on or before
May 1, 1982.

3. Pursuant to G.L. c. 268B, s.3(f), the Respondent received
a written Formal Notice of Delinquency ("Notice") from the
Commission on May 13, 1982, requiring him to file a Statement
within ten days of receiving the Notice.

4. The Respondent failed to file his Statement within ten days
of his receipt of the Notice.

5. The Commission initiated a preliminary inquiry on June
16,1982, as authorized by G.L. c. 268B, s.4(a).

6. The Respondent's Statement was sent on July 23, 1982 and
received by the Commission on July 27, 1982.

III. Decision

1. Jurisdiction

The parties agreed that the Respondent was, at all times
relevant, subject to the provisions of G.L. c. 268B, s.5 and that
the Commission was authorized to initiate and conduct adjudicatory
proceedings pursuant to that statute.

2. Chapter 268B Allegation

G.L. c. 268B, s.5 states, in relevant part:

(c) Every public employee shall file a statement of
financial interest 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
year after such person ceases to be a public employee...

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,[2] 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.

The elements necessary to establish a 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 admitted all the facts which
constitute a G.L. c. 268B, s.5 violation, the Commission concludes
that he violated G.L. c. 268B, s.5 by failing to file his 1981
SFI within ten days of receiving a delinquency notice from the
Commission. With the violation established, the only issue left for
the Commission to address is the sanction to be imposed.

 

IV. Sanction

In general, the Commission considers G. L. c. 268B, s.5
violations, whether technical or flagrant, to be serious
infractions which merit a penalty. Under G.L. c. 268B, s.4(d),
upon a finding. . . that there has been a violation of
chapter 268A or this chapter, [the Commission may] issue an
order requiring the violator to:

(1) cease and desist such violation [of c. 268B];

(2) file any report, statement of other information as
required by this chapter; or

(3) pay a civil penalty of not more than $1,000 for each
violation of this chapter. .. [3]

Page 132

Pursuant to this section, the Commission has adopted a policy of
levying civil fines on those who do not file timely statements as
required by G.L. c. 268B.[4] This policy, which has been followed
in numerous Disposition Agreements filed with the Commission,
establishes the fine according to the stage of legal proceedings
reached by the time the Statement is filed. Commission practice
under this policy has been to levy a fine of $250 when a Statement
is filed after a preliminary inquiry has been initiated, but before
the conclusion of the inquiry.

Of course, the Commission retains the discretion to adjust the
civil penalty in recognition of mitigating or aggravating
circumstances in individual cases. The Commission suggests that the
following factors, if clearly established, might serve as adequate
grounds in mitigation of a civil fine:

(1) The Respondent was unable to comply due to a
documentable physical or mental condition, either temporary
or permanent;

(2) Given the total circumstances, the Respondent made
a serious, good faith effort to comply as expeditiously and
fully as possible after being put on notice of the filing
requirement.

These criteria are not necessarily exclusive, but are intended to
give reporting persons notice as to the limited nature of
mitigating factors which the Commission will recognize.

Applying the above criteria to the Respondent, no mitigating
factors exist in this case sufficient to warrant diminution of the
customary fine. To the contrary, the Respondent here ignored
several written notices, and waited approximately five weeks after
the initiation of the Preliminary Inquiry before filing his
Statement. During that time, he made no effort to contact the
Commission for clarification of the filing requirement.[5]

In view of the record, the Commission finds it appropriate to
fine the Respondent as requested by the Petitioner in the Order to
Show Cause.

V. Order

On the basis of the foregoing, the Commission concludes that
Thomas A. Chilik 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
hereby orders Mr. Chilik to pay a civil penalty of $250 for such
violation.[6]

[1] These findings were all admitted by the Respondent in his
Answer, and were also corroborated by exhibits introduced into
evidence at the hearing.

[2] "[The commission shall] inspect all statements of financial
interests filed with the commission in order to ascertain whether
any reporting person has failed to file such a statement or has
filed a deficient statement. If, upon inspection, it is ascertained
that a reporting person has failed to file a statement of financial
interests, or if it is ascertained that any such statement filed
with the commission fails to conform with the requirements of
section five of this chapter, then the commission shall, in
writing, notify the delinquent: such notice shall state in detail
the deficiency and the penalties for failure to file a statement of financial interests."

[3] St. 1962, c. 612. s.16 raises the maximum fine to $2,000 per
violation, effective 3/29/83.

[4] See, Minutes of Commission Meeting. April 7,1980.

[5] It should be noted that the Respondent made no contact despite
the fact that the notice included a name and telephone number to
call if the recipient had any questions.

[6] In deference to the Respondent's arguments about his inability
to pay a fine without suffering financial hardship. the Commission
will allow the Respondent the option of satisfying the fine in ten
monthly installments at the statutory rate of interest (12%). Under
this option the Respondent must make ten payments of $26.40 each,
to commence on or before February 1, 1983. with payments due on the
first of each month thereafter until the obligation is paid in
full.