Decision  In the Matter of Victor Almeida

Date:	07/10/1980
Organization:	State Ethics Commission
Docket Number:	104

Decision and Order

Appearing:

Jo Ann Shotwell, Esq.: Counsel to the Petitioner

Fred Thomas, Esq.: Counsel to the Respondent

Commissioners: Vorenberg, Chairman; Brickman; Bernstein; Kistler; McLaughlin

I. Procedural History

On July 11, 1979 the Petitioner filed an Order to Show Cause alleging that the Respondent, Dr. Victor Almeida, had violated s.5 of the Financial Disclosure Law, General Laws Chapter 268B, by failing to File a Statement of Financial Interests (SFI). The Respondent filed a timely Answer in which he admitted that he had not filed but denied that he violated the law.

An evidentiary hearing, at which the Respondent represented himself, was held on February 27, 1980, before Commissioner Bernard McLaughlin. See G.L. c. 268B, s.4(c). Before the hearing the parties entered into a written Stipulation of Facts which was incorporated into the record. Following the hearing, the Respondent retained counsel and both parties filed briefs. Each Commissioner received a copy of the transcript of the proceedings and the Exhibits, together with a copy of the briefs. In rendering this decision and order, each of the participating Commissioners had heard and/or read the evidence and arguments presented by the parties.

II. Findings of Fact

1. Dr. Almeida was a member of the Board of Registration of Chiropractors within the

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Executive Office of Consumer Affairs of the Commonwealth of Massachusetts from December 1968 until his resignation on May 1,1979.

2. The Board of Registration of Chiropractors is the state agency responsible for granting and revoking chiropractors' licenses pursuant to G.L. c. 13, s.64. As a member of the Board, Dr. Almeida assisted in the examination of applicants and voted on whether or not they should be licensed. He also participated in revocation hearings.

3. The Board receives a periodic appropriation from the Commonwealth.

4. Each member of the Board receives from the Commonwealth $15.00 for each day or portion of a day spent in the performance of official duties. Each member is also paid the necessary traveling and other expenses actually incurred. See G.L. c. 13, s.66. Dr. Almeida was so compensated during the time he served on the Board except that he accepted no compensation after January 31,1979.

5. Dr. Almeida was designated by the Secretary of Consumer Affairs as an individual required to file, by May 1, 1979, an SFI for calendar year 1978. This designation was received by the Ethics Commission on January 10,1979.

6. On February 3,1979, Dr. Almeida was informed by Assistant Attorney General Mitchell Sikora, legal advisor to the Board, that he was required to file an SFI for calendar year 1978. Other Board members had been so informed at their meeting held on January 17, 1979. Dr. Almeida was not present at that meeting.

7. During the conversation on February 3rd, Sikora advised Dr. Almeida that he could resign immediately and "hope for the best" although resignation at that time would not be timely so as to exempt him from filing. Sikora was never asked by the Board to submit to the Ethics Commission a request for an exemption on behalf of the Board. Sikora never advised Dr. Almeida that he had submitted such a request.

8. The Ethics Commission never received a request that members of the Board of Registration of Chiropractors be exempted from filing SFI's. The Commission did receive requests to exempt certain Boards of Registration on the ground that the Board members were not entitled to receive compensation for their services. The Commission "de-designated" those Board members on February 14, 1979.

9. Dr. Almeida did not file a Statement of Financial Interests for calendar year 1978 on or before May 1, 1979.

10. On May 18, 1979, Dr. Almeida received from the State Ethics Commission a formal Notice of Delinquency informing him that, unless he filed a Statement of Financial Interests for calendar year 1978 within ten days, he would be in violation of General Laws Chapter 268B and subject to adjudicatory proceedings under s.4 of that Chapter and penalties, including a civil fine.

11. Dr. Almeida did not file a Statement of Financial Interests within ten days of receiving the Formal Notice of Delinquency. He has not to this day filed a Statement of Financial Interests for calendar year 1978.

12. By letter dated May 30, 1979, Dr. Almeida informed the Ethics Commission that he had resigned from the Board of Registration of Chiropractors, effective May 1,1979.

III. Decision

The Respondent contends that he was not required to file a Statement of Financial Interests on the grounds that (1) the Financial Disclosure Law, General Laws Chapter 268B and the SFI's issued thereunder violate his constitutional right of privacy, (2) he was not a public employee within the meaning of G.L. c. 268B, s.1(o), and (3) he resigned from the Board.

Privacy

The provisions of the Financial Disclosure Law and the SFI's issued thereunder do no violate the rights of privacy of public officials and employees, and members of their families. See the discussion In The Matter of John R. Buckley Commission Adjudicatory Docket No. 108, pp. 15-19 (decided May 7, 1980). As the Supreme Judicial Court noted, the filing of Statement of Financial Interests provides a means which the Legislature or the people could believe to be rationally related to the achievement of the legitimate goal of assuring the people of impartiality and honesty of public officials (s.1 of the

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proposed new G.L. c. 268B)"'. Opinion of the Justices, Mass. Adv. Sh. (1978)1116, 1131, 376 N.E. 2d 810,819.

Public Employee

Section 5(c) of G.L. c. 268B provides that:

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 year after such person ceases to be a public employee; provided, however, that no public employee shall be required to file a statement of financial interests for any year in which he was a public employee for less than eight days.

What must be disclosed is set out in s.5(g).

Since it is agreed that the Respondent failed to file an SFI within ten days after receiving notice that he was delinquent (see G.L. c. 268B, s.3(f) and s.5(g) (last paragraph)], the only issue is whether he was a public employee for purposes of filing. Public employee is defined in G.L. c. 268B, s.1(o) as any person who holds a major policymaking position in a governmental body; provided, however, that any person who receives no compensation other than reimbursements for expenses, or any person serving on a governmental body that has no authority to expend public funds other than to approve reimbursements for expenses shall not be considered a public employee for purposes of this chapter.

The Board of Registration of Chiropractors is a "governmental body" as that term is defined in G.L. c. 268B, s.1(h). See G.L. c. 13, s.64. Since the provisions of G.L. c. 13, s.65 vests in all members of the Board the same powers and duties, each member will be considered the executive head of the Board so as to hold a "major policymaking position" as that term is defined in G.L. c. 268B, s.1(l). See EC-FD-79-5. Accordingly, the Respondent will be considered a "public employee" unless either of the two exemptions set out in the definition of that term is satisfied i.e., he receives no compensation or the Board has no authority to expend public funds.

Clearly, the Respondent was compensated for his service on the Board during 1978. The $15.00 received by a member of the Board "for each day or portion thereof spent in the performance of his official duties", as authorized by G.L. c. 13, s.66, is compensation and not reimbursement since it is in addition to payment for "necessary traveling and other expenses actually incurred".

It has been agreed that the Board receives a periodic appropriation from the Commonwealth; G.L. c. 23, s.3 requires that every officer having charge of any office, department or undertaking which receives a periodic appropriation submit annual budget requests to the budget director. Such budget requests are "authorizations for expenditures of state funds". See G.L. c. 23, s.6. No money is paid from an appropriation unless so authorized.  See G.L. c. 23, s.20. The Board, therefore, has authority to expend public funds.

Accordingly, neither exemption of s.1(o) is satisfied in this case and the Respondent will be considered a public employee for purposes of Chapter 268B.

Resignation

The, Respondent argues that he should be relieved of his obligation to file an SFI for 1978 because he resigned his position on the Board, effective May 1, 1979. However, any such resignation would have had to occur by February 1, 1979 to exempt the employee from the disclosure requirements of Chapter 268B. See Section 26 of Chapter 210 of the Acts of 1978.

It is of no consequence that the Respondent did not learn until February 3,1979 that he would be required to file. Chapter 268B did not accord designated individuals any right to notice prior to February 1, 1979. Designations did not have to be submitted to the Commission until April 1, 1979. In any event, the Respondent, in spite of the suggestion of Assistant Attorney General Sikora, did not resign immediately but chose to remain on the Board for the next several months. He contends that he hoped the Board members would be "de-designated". However, Sikora was never asked by the Board to submit an exemption request on its behalf.

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IV. Order

Based on the foregoing, we conclude that Dr. Victor Almeida violated G.L. c. 268B, s.5(g) by failing to file a Statement of Financial Interests within ten days of receiving the Commission's Notice of Delinquency. Accordingly, he is ordered to:

1. File a Statement of Financial Interests for 1978 within seven (7) days of receipt of its opinion; and

2. Pay a civil penalty of $100.00 (one hundred dollars).

* Chapter 210, s.26 of the Acts of 1978 exempts from filing for 1978 all public employees who were not employed on February 1,1979.