|Organization:||State Ethics Commission|
- Appearance for Petitioner: David Burns, Esq.
- Appearance for Respondent: Vernon R. Thornton: pro se
- Commissioners: Diver, Ch.; Brickman, Burns, McLaughlin, Mulligan
|Organization:||State Ethics Commission|
The Petitioner filed an Order to Show Cause on August 30,1983 alleging that the Respondent, Vernon R. Thornton, had violated M.G.L. c. 268B, s.5 by failing to file his Statement of Financial Interests for calendar year 1982(1982 SFI) within ten days of receiving a Notice of Delinquency (Notice) from the Commission. The Respondent filed an Answer which conceded the allegations but which questioned the wisdom of imposing a civil penalty.
Pursuant to notice, an adjudicatory hearing was conducted on November 18, 1983 before Frances Burns, a member of the Commission duly designated as presiding officer. See, M.G.L. c. 268B, s.4(c). The parties waived the submission of briefs and presentation of oral argument before the full Commission. In rendering this Decision and Order, the members of the Commission have considered the evidence and arguments presented by the parties.
1. The Respondent served as a member of the Board of Registration in Veterinary Medicine from December, 1978 until August, 1983.
2. In December, 1982, the Respondent was designated by the Executive Office of Consumer Affairs as a "person holding a major policy-making position" for the purposes of filing a 1982 SFI.
3. The Respondent received the 1983 SFI forms and instructions from the Commission in March, 1983 and in April, 1983 received a postcard from the Commission reminding him that his SFI was due on May 1, 1983 and that failure to file by that date could subject him to civil penalties of $2000.
4. On May 10, 1983, the Respondent received a Formal Notice Of Delinquency notifying him that the Commission would commence enforcement proceedings unless he filed his 1982 SFI within ten days. Later that month, at the request of the Commission, the Director of the Division of Registration contacted the Respondent regarding his SFI.
5. The Commission authorized a preliminary inquiry in June, 1983 regarding the Respondent's failure to file his SFI and notified the Respondent that he was the subject of a preliminary inquiry.
6. The Commission authorized adjudicatory hearings into this matter in July, 1983. Following notification of the Commission vote, the Respondent filed his 1982 SFI on August 3,1983, forty- nine business days after the ten-day grace period of the Notice.
M.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 employee 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, 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 of delinquency.
Inasmuch as the Respondent admits the facts which constitute a G.L. c. 268B, s.5 violation, the Commission concludes that he violated M.G.L. c. 268B, s.5 by falling to file his 1982 SFI within ten days of receiving a Notice from the Commission.
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. The fine schedule, which was adopted in April 1983, imposes a daily fine of $10.00 for the first ten working days and $20.00 per working day thereafter. The purpose of the schedule is to assess fines in a fair manner without regard to the timing of administrative proceedings related to the delinquency. Although the schedule has been effective in securing compliance with the M.G.L. c. 268B filing requirements, the fine level accumulated under the schedule at times has been excessive and disproportional to the offense. In the Respondent's case, the filing of an SFI forty-nine business days late amounts to a fine of $880.00. Without condoning the Respondent's consistent disregard of the filing requirement, the Commission believes that a ceiling of $500 would he appropriate in cases where individuals such as the respondent have filed SFIs late.
On the basis of the foregoing, the Commission concludes that the Respondent 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 the Respondent to pay a civil penalty of $500.00 within thirty days of notice of this