Letter Ruling Public Enforcement Letter 87-4: Walter Johnson
Walter Johnson Public Education Letter
Dear Mr. Johnson:
As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that while serving as a member of the Stoughton Board of Selectmen (Board), you acted as agent for, and received compensation from, Goddard Memorial Hospital (GMH) in connection with matters in which the Town of Stoughton had a direct and substantial interest. Our inquiry also focused on your conduct as an agent/employee of GMH following your resignation from the Board. The results of our investigation (discussed below) indicate that the conflict of interest law was violated in this case. However, in view of certain mitigating circumstances (also discussed below), the Commission has determined that further proceedings are not warranted, and that the public interest would better be served by bringing to your attention the facts revealed by our investigation and explaining the application of the law to those facts, trusting that this advice will ensure your future understanding of, and compliance with, the law. By agreeing to this public letter as a final resolution of this matter, the Commission and you are agreeing that there will be no formal action against you and that you have chosen not to exercise your right to a hearing before the Commission.
I. The Facts
1. At all relevant times until January 20,1986, you were a member of the Board and, as such, a "municipal employee" as defined in G.L. c. 268A, s.1(g). You also served as Acting Town Manager from January to May, 1984.
2. On June 22,1984, you were interviewed for the position of Director of Planning and Construction at GMH. You were the only candidate considered, and you were hired to commence working for the hospital on July 5,1984. As Director of Planning and Construction, you are in charge of all construction projects for the hospital.
3. As early as 1982, representatives from the Town of Stoughton were negotiating with officials from GMH to develop jointly a water source found on the property of GMH. A joint development would allow the town to expand its water supply and allow GMH to expand its physical plant.
4. On January 17,1984, the efforts of the town's negotiating team were discussed by the Board in executive session. According to the minutes, you participated as a Selectman in that discussion and in a vote to submit an article concerning the negotiations to Town Meeting. On April 10,1984, you again participated in a discussion and vote to go forward with the well agreement. Your Board briefly reviewed the agreement at two other meetings in April, 1984. In addition to the Board meetings, you participated in these negotiations in February, 1984, when you joined the principal negotiators for a meeting at GMH to work out issues concerning the well agreement.
5. In late August, 1984, as a GMH employee, you attended a meeting to finalize the new well agreement. Shortly thereafter, you solicited bids for the well's engineering design and specifications, met with town officials to pinpoint the exact location of the well, discussed the wording of the well agreement with GMH's attorney, and attended a meeting with town officials at DEQE to discuss the well.
6. You also attended a January 16,1986 meeting of the Zoning Board of Appeals as a representative of GMH where GMH officials threatened to void the well agreement if the medical office building (see below) was not permitted to be built.
Medical Office Building Proposal
7. In 1983, GMH submitted to the Board a request for a zoning change to allow the construction of a medical office building and other hospital development. Your Board, although it had no discretion to accept or reject articles submitted for the town meeting's warrant, did endorse the zoning change.
8. From April, 1985 to February, 1986, while employed at GMH and during the time you served as a Selectman, you represented GMH before the Zoning Board of Appeals, the Planning Board and the Board of Health in connection with various permits and zoning decisions relating to the medical office building. After you resigned as Selectman, you continued to represent GMH's interests in connection with the construction of the medical office building.
Reginald Cole Drive
9. On September 20,1984, the President of GMH
filed an application with the Planning Board for approval to construct Reginald Cole Drive. You initialed this application. On November 8,1984, you attended a Planning Board meeting concerning the road development and spoke on behalf of GMH. On May 9,1985, you filed a notice of intent with DEQE. (Your name appeared on this notice as the "Responsible Officer Project Proponent.") On May 22,1986, you appeared before the Planning Board to present a modification of the road plan and answer questions.
10. On June 11, 1985, your Board approved a recommendation of the Town Engineer that the Board recommend to the Zoning Board of Appeals that a special permit be granted to the hospital for the roadway named Reginald Cole Drive. You abstained in this approval.
Town Counsel Opinion
11. Shortly after you began employment with GMH, you wrote to Town Counsel, Leonard Kopelman, seeking direction with respect to conflict of interest issues. You wrote,
I realize that I cannot act in any official capacity as a selectman in matters coming before the town which will affect the Goddard Hospital. I seek your opinion as to further questions arising under the conflict law relating to my duties responsibilities now that I am employed by Goddard Hospital.
Kopelman responded that he saw no conflict of interest in holding the two positions. "Since you are a paid employee of the Goddard Hospital, you should, of course, not sign any documents between the hospital and the Town of Stoughton and should abstain from any vote taken therein," Kopelman wrote.
II. The Conflict Law
Section 17 of G.L. c. 268A prohibits municipal employees from receiving compensation from, and/or acting as agent or attorney for, a private party in connection with a particular matter in which the municipality has a direct and substantial interest. Once you were hired by GMH in July of 1984, one of your principal responsibilities was to represent the hospital's interests before town boards in connection with matters that were of direct and substantial interest to the Town of Stoughton. The well agreement was one such matter. Your work on behalf of GMH to finalize the well agreement with the town, and to implement its terms, at a time when you also served as Selectman, constituted a violation of s.17(a). Your appearances before various town boards as a GMH representative at a time when you also served as Selectman constituted violations of s.17(c). Likewise, your appearances before town boards in connection with permits for the construction of the medical office building and for the construction of Reginald Cole Drive constituted violations of this section.
Section 18 prohibits a former municipal employee from knowingly acting as agent or attorney for, or from receiving compensation, directly or indirectly, from, anyone other than the same city or town in connection with any particular matter in which the city or town is a party or has a direct and substantial interest, and in which the person participated as a municipal employee. Section 18 also prohibits a former employee from appearing before any town agency as agent or attorney of any private party in connection with a particular matter which came under his official responsibility within the two years prior to the termination of his employment, whether or not he actually participated in the matter. This latter prohibition lasts for one year following termination of employment.
Your representation of Goddard's interests in matters involving the well, the medical office building and Reginald Cole Drive, during the first year following your resignation from the Board, created the same problems under s.18 that existed under s.17 while you were still a Selectman.
The purpose of s.s.17 and 18 of G.L. c. 268A is to ensure that a public employee's private representation of a private entity does not compromise the loyalty owed to the town he serves. The facts in this case suggest the potential for conflict between your private responsibilities and your public duties.
The principal reason why the Commission has decided to resolve this matter by means of this letter is because of your apparent good faith reliance on Town Counsel's opinion which did not adequately address the issues that you would be facing when you accepted employment at GMH. While good faith reliance on Town Counsel's opinion is not a shield from a violation of G.L. c. 268A, the Commission has generally considered such an opinion in mitigation of the violation. In this case, you asked the right question to the right person but received an incorrect opinion, and therefore the Commission has determined that a public enforcement letter is the appropriate way to resolve this matter.
You should be aware that, pursuant to the requirements of s.18, you are forever barred from representing the interests of GMH, with or without pay, in any matter in which the Town of Stoughton had a direct and substantial interest and in which you participated as a Selectman.
In our view, your Board's endorsement of the GMH zoning change article placed on the town meeting warrant, was a discrete particular matter. Prospectively, G.L. c. 268A, s.18 would prohibit you from acting as an agent for or receiving compensation from GMH
in connection with the Board's decision to place the zoning change request on the town warrant. For example, you cannot challenge the Board's decision to place this article on the town warrant. Aside from this issue related to the zoning change, and assuming your prior participation as a Selectman was limited to what has been discussed above, you would be free to work for GMH on the medical office building. By contrast, because the well agreement involves a continuing contractual or joint venture arrangement between the town and GMH, and because you participated in the creation of the agreement, you will be barred from taking any action on behalf of GMH in connection with the well until the agreement is terminated.
Based on its review of this matter, the Commission sending of this letter should be sufficient to ensure your understanding of the law and your future compliance with it. Thank you for your cooperation. If you have any questions, please contact me at (617)727-0060.