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Letter Ruling

Letter Ruling  Public Education Letter In the Matter of Lawrence Beals

Date: 01/09/2020
Organization: State Ethics Commission
Referenced Sources: G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Table of Contents

Introduction

January 9, 2020

Dear Mr. Beals:

As you know, the State Ethics Commission conducted a preliminary inquiry into whether you violated the conflict of interest law as a Town of Winchester Zoning Board of Appeals (“ZBA”) Member by receiving compensation and acting as agent for a private party in connection with a matter in which Winchester had an interest, and creating an appearance of bias while performing your public duties.  You cooperated fully with the inquiry.

On September 20, 2019, the Commission voted to find reasonable cause to believe that your actions, as described below, violated Sections 17(a), 17(c), and 23(b)(3) of the conflict of interest law.  The Commission has determined 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. The Commission chose this resolution because you may have incorrectly relied on past advice to you from the Commission.  The Commission expects that, by resolving this matter through this Public Education Letter, public employees in similar circumstances will have a clearer understanding of the conflict of interest law and how to comply with it in connection with future conduct. 

The Commission and you agree 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

Background

Since 1990, you have been the owner and only principal of Beals Associates, Inc., a consulting firm that provides civil engineering, permitting, and construction supervision services.   

Since 1999, you have been a member of the Winchester Boat Club and, over the years, have held multiple positions there.  Once you joined the Boat Club, Beals Associates began providing professional services to the Boat Club, on a pro bono basis. 

From 2011 to May 2018, you were an appointed member of the Winchester ZBA.  The Winchester Board of Selectmen was your appointing authority.  The ZBA has the authority to decide applications for special permits, petitions for variances from zoning bylaws, site plan approvals, and appeals from decisions of the zoning enforcement officer.  The Board of Selectmen have designated ZBA members as special municipal employees for purposes of the conflict of interest law.

Acting as Agent and Receiving Compensation

In November 2015, a real estate developer sought to build an Age-Qualified Community on an undeveloped 12.9-acre parcel of land in Winchester, known as Winning Farm (“Winning Farm Project”).

In or around April 2016, the developer hired Beals Associates to perform professional services related to the permitting of the Winning Farm Project.  From 2016 to 2017, the developer compensated Beals Associates, of which you are the sole owner, for services related to the Winning Farm Project, including appearances before Town agencies and boards.

On February 6, 2017, a Beals Associates employee filed an application for a special permit on behalf of the Winning Farm Project with the ZBA.  A representative from Beals Associates appeared before the ZBA at a hearing on the special permit on February 28, 2017 and March 20, 2017. 

On March 25, 2017, you personally met with abutters of the Winning Farm Project on behalf of the developer, to discuss off-site improvements necessary to receive neighborhood support.  On March 26, 2017, you, on behalf of the developer, communicated directly with an abutter regarding changes to the curbing.  You also communicated with the abutters on behalf of the developer on April 5, 2017 to obtain the abutters’ approval of the Winning Farm Project’s landscape plans prior to the May 15, 2017 ZBA meeting.  Beals Associates requested and received compensation for these meetings.

On May 15, 2017, the ZBA voted to approve the special permit.  You properly recused yourself from the vote and left the room at that time.

Beals Associates requested and received compensation for work performed in connection with the May 15, 2017 ZBA hearing.  Beals Associates earned an estimated $300,000 in gross revenue for its work related to the Winning Farm Project; roughly 10% of that amount was for work associated with the special permit granted by the ZBA. You told us that the firm’s net profits were much smaller.

Creating an Appearance of Bias

The public process surrounding the Boat Club’s renovation and proposed expansion in 2016 for which Beals Associates provided pro bono services, was, according to you, a “fairly contentious permitting process.” Kevin Sarney, an abutter of the Boat Club, was publicly opposed to the expansion of the Boat Club.  Sarney, via his attorney, argued that the expansion would require a special permit.  The ZBA allowed the renovations but denied the proposed expansion.  The Boat Club filed suit against the ZBA in Land Court.    

In March 2017, Sarney sought a special permit from the ZBA to build a garage.  When Sarney appeared before the ZBA, you, as a ZBA member, questioned Sarney about the property lines in his site plan.  Sarney asked you to recuse yourself because Sarney felt that you would be biased against any abutter that had opposed the Boat Club’s expansion.  Based on your interpretation of the advice you received from the Commission on an unrelated matter, you responded that as long as you did not vote, you were allowed to participate in the discussion. 

During the Board’s discussion of Sarney’s permit, based on certain inconsistencies that you and, apparently, the other members of the ZBA perceived in the plans provided by Sarney, you suggested that the Board seek clarification regarding the property lines in Sarney’s plans. 

Sarney’s special permit was allowed, subject to certain conditions on clarifying property lines, including submission of a revised site plan from a land surveyor showing the property lines.  You abstained from the vote. 

As a member of the ZBA, you were a special municipal employee, and, as such, subject to the restrictions of the conflict of interest law, General Laws chapter 268A. 

Section 17

Section 17(a) prohibits a municipal employee from, otherwise than in the proper discharge of his official duties, directly or indirectly receiving or requesting compensation from anyone other than the city or town or municipal agency in relation to any particular matter in which the same city or town is a party or has a direct and substantial interest. 

Section 17(c) prohibits anyone other than in the proper discharge of his official duties from acting as agent or attorney for anyone other than the municipality in relation to any particular matter in which the municipality is a party or has a direct and substantial interest. 

The purpose of this prohibition is to prevent a municipal employee from dividing his loyalty between his public employer and a private party.

Section 17 applies less restrictively to special municipal employees.  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.1

As a ZBA member, you are a special municipal employee and, as such, subject to the more flexible provisions described above. 

The ZBA’s consideration of the Winning Farm Project special permit application was a particular matter.  As a ZBA member, you had official responsibility of approving the special permit application and as such, had official authority over all aspects of the special permit application.  You were previously advised by the Commission that a public official retains official authority on all matters subject to his review even if he recuses himself from the discussion and vote on those matters.

The Town had a direct and substantial interest in the ZBA special permit for the Winning Farm Project because, in general, matters that involve municipal action, such as a permit granted by a municipality, are considered to be of direct and substantial interest to the municipality.  Commonwealth v. Canon, 373 Mass. 494, 498 (1977).  As owner and operator of Beals Associates, you directly or indirectly received compensation from the Winning Farm Project developer in relation to the ZBA special permit when it was a matter of your official responsibility as a ZBA member.  In particular, after an employee of your firm filed a ZBA special permit application on behalf of the developer, your firm received compensation in connection with the ZBA hearing and your meeting with abutters.  Based on these facts, the Commission found reasonable cause to believe that you violated Section 17(a). 

In addition, Section 17(c) not only generally prohibits special municipal employees from representing a private party in certain matters before their own board, but it also prohibits them from representing anyone before other municipal boards, to private business or to charitable organizations in matters that are the subject of their official responsibility.  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.  You personally acted as agent of the developer of the Winning Farm Project when you met with the abutters regarding the pending ZBA special permit application.  The meeting with the abutters was not in the proper discharge of your official duties as a member of the ZBA, and, therefore, not permissible public constituency work.  Accordingly, by acting on behalf of a third party in relation to a particular matter which was under your official responsibility as a ZBA member and in which the Town had a direct and substantial interest, the Commission found reasonable cause to believe that you violated Section 17(c).  

Section 23(b)(3)

Section 23(b)(3) prohibits a municipal employee from knowingly, or with reason to know, acting in a manner which would cause a reasonable person, knowing all of the facts, to conclude that anyone can improperly influence or unduly enjoy the employee's favor in the performance of his official duties or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. This section's purpose is to address appearances of impropriety, and in particular, appearances that public employees may be biased in favor or against certain people in the performance of their official duties.  Section 23 does not apply less restrictively to special municipal employees. 

In applying § 23(b)(3), the Commission evaluates whether there is an appearance that the integrity of the public official's action might be undermined by a private relationship or interest.  In the Matter of James Flanagan, 1996 SEC 757.

By questioning Kevin Sarney regarding his permit application and discussing the application with other ZBA members, when previously you and Mr. Sarney were on opposite sides of the hotly contested expansion of the Winchester Boat Club, a reasonable person could conclude that you were improperly influenced in your public duties by your relationship with the Boat Club and that you were biased against one of the abutters who contested the Boat Club’s expansion plan. Although you did not participate in the vote, you still acted on Mr. Sarney’s application in your official capacity by participating in the discussion of the application, potentially influencing the ZBA decision.

Section 23(b)(3) further provides that an appearance of impropriety can be obviated if the public employee discloses in writing to his appointing authority all of the relevant circumstances which would otherwise create the appearance of conflict.  You did not file a disclosure regarding your history with the Boat Club and Mr. Sarney with your appointing authority, the Board of Selectmen.

Therefore, based on the above facts, the Commission found reasonable cause to believe that you violated Section 23(b)(3).

Disposition

Based upon its review of this matter, in which you fully cooperated, the Commission has determined that the public interest would be best served by the issuance of this Public Educational 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.

The matter is now closed.                           

Sincerely,
Eve Slattery
General Counsel

[1] 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.

 

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