Letter Ruling  Public Education Letter in the Matter of Guy Corbosiero

Date:	11/22/2021
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Public Education Letter

November 22, 2021

Dear Mr. Corbosiero:

As you know, the State Ethics Commission conducted a preliminary inquiry into whether you, in your capacity as Chair of the Winchendon Planning Board, violated the state conflict of interest law by acting as agent for Toy Town Alternative Health (Toy Town)1 in relation to Toy Town’s application for a special permit to operate a retail marijuana business in the Town of Winchendon. You cooperated fully with the inquiry.

On October 20, 2021, the Commission voted to find reasonable cause to believe that your actions, as described below, violated section 17(c) of the state conflict of interest law, General Laws chapter 268A, and authorized adjudicatory proceedings. The Commission further determined, however, that, in lieu of adjudicatory proceedings, the public interest would be better served by publicly discussing the facts revealed by the preliminary inquiry and explaining the application of the law to those facts in this Public Education Letter.

By resolving this matter through this Public Education Letter, the Commission seeks to ensure that you and public employees in circumstances similar to those described below will have a clearer understanding of the conflict of interest law and how to comply with it. In particular, the Commission seeks to correct the common misunderstanding that a municipal employee may act privately as agent for someone other than the city or town in a matter involving the municipality without violating G.L. c 268A, § 17, as long as the employee abstains from participating in the matter in their public employee capacity.

The Commission and you have agreed that this matter will be resolved publicly with this educational letter and that there will be no formal proceedings against you. You have chosen not to exercise your right to a hearing before the Commission.

The Facts

You have served on the Winchendon Planning Board since about 2007 and have been Chair of the Planning Board since about 2015. You continue to serve as Chair. Planning Board members are appointed by the Winchendon Board of Selectmen (BOS) and have been designated by the BOS as special municipal employees.

On May 21, 2018, the Winchendon Town Meeting voted to amend the Town’s zoning bylaws to regulate the marijuana industry in Town. The amended bylaws designate the Planning Board as the Special Permit Granting Authority for applicants for a marijuana facility license and require all such facilities to obtain a special permit to operate.

On June 9, 2018, you submitted a signed letter to the Winchendon Town Manager, applying for an Adult Use Marijuana Retail License on behalf of Toy Town, a company you had recently formed with three partners to operate a retail marijuana business in Winchendon.

On June 11, 2018, Winchendon’s Director of Planning and Development emailed you that Toy Town’s application was selected to move to the next stage in the local licensing process. The Town had received a total of three applications and all three applicants were selected to move on to the next stage.

On June 13, 2018, you filed a disclosure with the BOS detailing your involvement with Toy Town and its application for a retail marijuana license. You stated in your disclosure that: (1) Toy Town would need to appear before the Planning Board for Site Plan Review and a Special Permit; (2) you would not participate as a Planning Board member in any matter involving retail marijuana; and (3) you would recuse yourself as a Planning Board member from any matter dealing with retail marijuana, Toy Town, or any of the principals of the company. Your disclosure was made on a Commission form designed to allow an appointed municipal employee to seek an exemption from § 19 of the conflict of interest law. 2

The Chair of the BOS signed your § 19 disclosure form on July 16, 2018, and wrote on the form the stipulation that you “recuse yourself from the Planning Board whenever discussions of retail marijuana, including any bylaws or anything related to marijuana, are part of the Planning Board’s discussions.” No question was raised at the time about you privately acting as agent for Toy Town.

On July 16, 2018, you addressed the BOS in support of Toy Town’s application. The BOS voted 5-0 to authorize the Town Manager to enter into a Host Community Agreement with Toy Town. The BOS also voted unanimously to approve the applications from the two other applicants.

On July 16, 2018, you signed a Host Community Agreement Certification Form, certifying that you were an authorized representative of Toy Town.

On July 17, 2018, Winchendon and Toy Town entered into a Host Community Agreement. The document was signed by the Town Manager on behalf of the Town and you on behalf of Toy Town.

While Toy Town entered into a Host Community Agreement with Winchendon, it did not receive approval to operate from the state Cannabis Control Commission. You resigned from Toy Town on August 19, 2020.

Around February 2021, Toy Town Alternative Health, with new business partners, entered into a new Host Community Agreement with the Town. You are not involved with this business.

The Conflict of Interest Law

Your June 13, 2018, disclosure to the Board of Selectman addressed issues under § 19 of the conflict of interest law, G.L. c. 268A, that would have been raised had you acted as a Planning Board member on marijuana retail facility special permits and other matters in which Toy Town, you or your business partners had a financial interest. You abstaining from participating as a Planning Board member in such matters would have resolved these § 19 concerns had these matters come before the Planning Board. However, you acting in your private capacity as agent for Toy Town in relation to its application for a marijuana retail special permit, raised issues under a separate section of the conflict of interest law that could not be avoided by you abstaining from participating in those matters as a Planning Board member. Those issues arose under § 17(c) of the law.

Section 17(c) of the conflict of interest law prohibits a municipal employee from, otherwise than in the proper discharge of their official duties, acting as agent for anyone other than the city or town in connection with a particular matter in which the same city or town is a party or has a direct and substantial interest. The purpose of this prohibition is to prevent municipal employees from dividing their loyalty between their public employers and private parties.

While § 17(c) applies less restrictively to special municipal employees such as you in your capacity as Planning Board Chair, special municipal employees are still prohibited from acting as agents for anyone other than their employing municipality in relation to matters involving the municipality which are under their official responsibility.3 This provision not only generally prohibits special municipal employees from representing a private party in matters before their own board, but it also prohibits them from representing anyone other than their employing municipality before other municipal boards in matters that are the subject of their official responsibility.

What is frequently misunderstood about § 17(c) is that even if a special municipal employee abstains from participating in their official capacity in a matter over which they have official responsibility, or files a disclosure relating to the matter, the matter is still considered to be under their official authority and, therefore, the employee remains prohibited by § 17(c) from acting as agent for anyone other than the municipality regarding the matter.

Here, the Planning Board had official responsibility over marijuana license applications because the Planning Board was the ultimate authority for granting the special permit required to operate a marijuana business in town under Winchendon’s bylaws. Moreover, given that the town regulates marijuana businesses and issues special permits to operate, Winchendon has a direct and substantial interest in marijuana business special permit applications.

When you (1) submitted Toy Town’s application for a retail marijuana license to the Town Manager, (2) appeared before the BOS in support of Toy Town’s application, and (3) signed, as an authorized representative of Toy Town, both the Host Community Agreement Certification Form and the Host Community Agreement between Toy Town and Winchendon, you acted as agent for Toy Town. 4 While you filed the § 19 disclosure form stating that you would not participate as a Planning Board member in matters involving Toy Town, your disclosure did not change the fact that your official responsibilities as a Planning Board member included the issuance of special permits to marijuana facilities, nor would you abstaining from participating in the issuance of such permits as a Planning Board member eliminate your official responsibility over that issuance. The authority to issue such permits was an inseparable part of your being a Planning Board member that no disclosure or abstention by you could eliminate.

Therefore, the Commission found reasonable cause to believe that you violated § 17(c) of the conflict of interest law by acting as agent for Toy Town in connection with its application for a retail marijuana license.

Disposition

Based upon its review of this matter, the Commission has determined that the public interest would be best served by the issuance of this Public Education Letter and that your receipt of this letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law.

This matter is now closed.

Sincerely,

David A. Wilson
Executive Director

1. A Certificate of Organization for a Limited Liability Company was filed by Toy Town Project LLC with the Secretary of the Commonwealth. The name of the business was Toy Town Alternative Health.

2. Section 19 of G.L. c. 268A prohibits municipal employees from participating in a matter in which they have a financial interest. Under § 19(b)(1), appointed municipal employees may participate in such a matter if they first advise their appointing authority of the nature and circumstances of the particular matter, make full disclosure of the financial interest, and then receive, in advance, a written determination made by the appointing authority allowing their participation. In this case, the BOS told you to recuse yourself whenever discussions of retail marijuana are part of the Planning Board’s discussions.

3. Specifically, a special municipal employee is prohibited from receiving or requesting compensation and/or acting as agent for private parties in relation to (1) particular matters in which he has participated as a municipal employee; (2) particular matters which are or within one year have been a subject of his official responsibility; or (3) particular matters pending in a municipal agency in which he is serving. The third provision applies only if the employee has served in the municipal agency for more than 60 days during any period of 365 consecutive days.

4. A special municipal employee ‘acts as an agent’ by communicating on behalf of a third party or acting as a liaison for a third party. See Advisory 88-01: Municipal Employees Acting as Agent for Another Party.