Letter Ruling  Public Enforcement Letter 89-3: Joseph Zeneski

Date:	01/02/1989
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

Joseph Zeneski

Dear Mr. Zeneski:

As you know, the State Ethics Commission has conducted a preliminary inquiry regarding information that, as the director of the Mansfield Department of Public Works, you may have reviewed work submitted by Dunn Engineering, Inc. (Dunn Engineering) while you had an offer of employment pending with that company. The results of our investigation (set forth below) indicate that the state conflict of interest law (G.L. c. 268A) appears to have been violated in this case. Nevertheless, in view of certain mitigating factors (also discussed below), the Commission does not feel that further proceedings in this matter are warranted. Rather, the Commission has determined that the public interest would be better served by disclosing the facts revealed by our investigation and explaining the application of the law to such facts, trusting that this advice will ensure your future understanding of and compliance with the conflict of interest 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. You are the former Public Works Director and Town Engineer for the Town of Mansfield. You were appointed by the Mansfield Town Manager in April, 1983 and served until October, 1985, at a salary range of $30,000 to $32,000 a year. As the Public Works Director and Town Engineer, you were responsible for water, sewer, street design, maintenance and subdivision plan review for the Mansfield Planning Board (Planning Board). You resigned your municipal position effective September 30,1985 and joined Dunn Engineering one week later.

2. Dunn Engineering is a civil engineering and surveying company based in Foxboro. You are presently employed by Dunn Engineering at its office in Uxbridge.

3. You have stated to us that you approached James Dunn (Dunn), the owner of Dunn Engineering, concerning employment on Labor Day, September 2,1985. At that point, you and Dunn met for lunch to discuss the possibility of your employment with Dunn Engineering. You said that you received a formal offer of employment from Dunn Engineering on September 6, 1985. You signed Dunn Engineering's offer and returned it to Dunn on September 16,1985, accepting the offer. According to you, on or about September 16,1985, you submitted a letter of resignation to the Mansfield Town Manager that was effective September 30, 1985. The letter did not disclose your plans to join Dunn Engineering. You did not otherwise disclose to the Town Manager 

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or any other town officials, prior to your leaving municipal employment, your plans to join Dunn Engineering.

The Pratt Street Sewer Connection

4. According to you, in 1985 a family on Pratt Street, Mansfield (the family) desired to build a new wing on their home that would encroach upon their septic system's leaching field. Accordingly, the family planned to hook up to the town sewer. According to you, because the town sewer line which the family needed to connect with was not in front of their house, the family's sewer pipe had to leave their property at an angle, which presented some problems. Dunn Engineering did the engineering work on the family's project, and Dunn Engineering employee and vice-president John Parmentier (Parmentier) represented the family at meetings before town boards concerning the project.

5. You said that you originally approved the family's sewer connection on July 24,1985.[1] You rescinded your approval of the proposed sewer connection permit application on September 4,1985. You said that you initially did not give the family's connection much thought; but shortly thereafter, there were problems with other sewer connections in town, including one on Pratt Street. According to you, effluent was backing up into the cellar of a home on Pratt Street, and the owner charged that it was the town's responsibility to clean up the mess and repair the sewer connections. You said that, with these problems in mind, you rescinded the family's permit so you could give the project more thought. You said that when you began studying the family's hook- up, you noticed that there was a gas main running near the sewer pipe that did not allow the recommended 1% to 2% slope for the sewer pipe. You said you recommended that the family install a grinder-pump in the sewer line to overcome this slope problem. According to you, the grinder pump would have cost the family approximately $3,000. You said the family did not want to install the grinder pump and wanted the town to accept the liability for their sewer connection.

6. On September 4,1985, the still-unresolved issue of the family's sewer connection was raised at the Selectmen's meeting, and it was decided that the Selectmen would meet with the family, town counsel and you at their next meeting to settle the matter. The Selectmen's next meeting was on September 11,1985, and you attended. The family was represented at the meeting by Parmentier of Dunn Engineering. You stated at this meeting that your first concern about the proposed connection was the slope of the sewer pipe, and your second concern was the pipe's length. You told the Selectmen that you still, as previously, recommended the use of a grinder pump, which you said would be more expensive. After a recess to discuss a proposal that the family agree to maintain the connection and bear the cost of a second (replacement) connection to the main sewer line if it were extended to a point where a better connection could be made, Parmentier suggested that the family be allowed to use an .8% slope, with pea gravel around the pipe as insulation, According to the minutes, you felt the new slope (.8%) was close enough to the minimum to be allowed. You recommended that the family agree to have their engineer (Dunn Engineering) on site when the installation was done so that the engineer could certify that plans were followed. The Selectmen adopted this recommendation. In addition, the Selectmen conditioned their approval on the family agreeing to waive any claim against the town for the freezing of the sewer line and that they would hook up to the main sewer line if it were extended up Pratt Street. The Selectmen then voted four to one to approve the family's sewer connection.

7. According to Dunn, Dunn Engineering lost money on the family project because the negotiations that took place required the firm to perform revision work for the family for which the firm did not charge.

Hallet Crossing I Subdivision

8. On August 21, 1985, Dunn, as President of Dunn Engineering, submitted to the Planning Board, on behalf of the developer Walmark Corporation (Walmark), documents constituting an application for the approval of a residential subdivision off Fruit Street in Mansfield, subsequently designated as Hallet Crossing I. You there- after reviewed this subdivision plan at the Planning Board's request as Mansfield Director of Public Works.

9. On September 3, 1985, Parmentier,as Vice President of Dunn Engineering, submitted to you, as Director of Public Works, a drainage plan for the Hallet Crossing I subdivision. You subsequently reviewed this drainage plan as the Director of Public Works.

10. On September 13,1985, you sent a memorandum to the Planning Board in which you made four comments on the Hallet Crossing I subdivision. First, you recommended that the road for the subdivision use the street section approved by the Planning Board for use for minor streets" (allowing a 24 rather than 30 foot width). Second, you observed that the plan should show that the sewer is existing. Third, you stated that the water main need only be eight inches in diameter. Fourth, you recommended the installation of a fence along the sub division property line to prevent easy access to the subdivision by off-road vehicles. In a separate memorandum to the Planning Board, also dated September 13,1985, you made recommendations concerning the drainage plan for Hallet Crossing I. You recommended that a pre-development/ post-development comparison of total runoff and rates should be presented" and that the board should consider the overall impact of the proposed project.

11. On September 25, 1985, there was a public hearing 

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before the Planning Board concerning the Hallet Crossing I definitive subdivision plan. Dunn personally made the presentation for Walmark at this hearing. You attended this hearing and commented on the rebuilding of Fruit Street, the length of the Hallet Crossing I subdivision road, and the location of the Hallet Crossing I subdivision. There apparently was no public opposition to Walmark's plan at the meeting. The Planning Board took no action on Hallet Crossing I at the September 25, 1985 hearing.

12. Subsequently, by letter dated October 4,1985, the Planning Board informed Walmark that it had some concerns with the Hallet Crossing I definitive subdivision plan, including '"[t]he comments from the DPW Director, dated September 13,1985." A copy of your September 13,1985 memorandum to the Planning Board was attached to the letter. The letter further informed Walmark that "[t]he Planning Board requests that you address these concerns and submit a revised plan to the Board for further review."

13. In response to the Planning Board's directive, Dunn Engineering made revisions to the Hallet Crossing I plan. On October 30,1985, the Planning Board approved the subdivision plan. On November 23,1985, Dunn Engineering billed Walmark an additional $2,355 for work on Hallet Crossing I, including $554 for "October 29-30, 1985, changes to subdivision plan prior to Planning Board signatures.

II. The Conflict Law

As the Director of the Mansfield Department of Public Works, you were a municipal employee for the purposes of the conflict of interest law, G.L. c. 268A.

In pertinent part, G.L. c. 268A, s.19(a) prohibits a municipal employee from participating[2] as such in any particular matted in which he knows an organization with which he is negotiating or has any arrangement concerning prospective employment has a financial interest. Accordingly, your participation as a municipal employee in official matters concerning Dunn Engineering raised conflict of interest issues once you began negotiating with Dunn Engineering regarding prospective employment.

The evidence developed shows that, during the three-week period between your receiving a job offer from Dunn Engineering on September 6,1985 and your leaving municipal employment on September 30,1985, you took official action concerning projects on which Dunn Engineering had performed engineering services. Whether your actions violated s.19 turns on whether your participation was "personal and substantial" as required by s.1(j) and on whether Dunn Engineering had a financial interest in each particular matter in which you participated.

Your actions on September 11,1985 concerning the Pratt Street sewer permit application related directly to Dunn Engineering's work and were substantial in nature, In making recommendations to the Selectmen as to the adequacy of the .8% slope proposed by Dunn Engineering and the conditions under which the permit application would be approved, you participated personally and substantially, as DPW Director, in the process by which the Selectmen decided to approve the family's permit request. The family's application's approval with conditions was a particular matter in which Dunn Engineering had a financial interest. Dunn Engineering's financial interest was clearly implicated by the approval condition (recommended by you and adopted by the Selectmen) that the family agree to have their engineer (Dunn Engineering) present while the sewer line was installed. This condition would (unless the family changed engineers) obviously result in Dunn Engineering performing additional services for the family, to the company s gain or loss (depending on whether it received payment for the services). Accordingly, you appear to have violated s.19 on September 11,1985.

Similarly, your September 13, 1985 recommendations to the Planning Board concerning the Hallet Crossing I subdivision amounted to personal and substantial participation by you in the Planning Board's consideration and approval of the subdivision. Acting as Public Works Director, you interjected yourself into the Planning Board's process of making a decision concerning the subdivision by making recommendations concerning substantive changes to the plans which you believed the board should require for their approval. Additionally, to the extent they were adopted by the Planning Board,your recommendations resulted in revisions and/ or additions to the subdivision plans by Dunn Engineering for which Dunn Engineering charged its client. Thus, in making the recommendations regarding Hallet Crossing I, you participated personally and substantially in a particular matter in which Dunn Engineering had a financial interest. Accordingly, you appear to have violated s.19 on September 13,1985.

Although you appear to have violated G.L. c. 268, s.19 on September 11 and 13, 1985, the Commission has decided that this case does not warrant the initiation of formal adjudicatory proceedings because:

1. Dunn Engineering's financial interest in the matters in which you participated on September 11 and 13,1985, while sufficient for s.19 purposes, was indirect and, under the circumstances, relatively small;

2. the facts do not show that the public interest was compromised by favoritism on your part towards Dunn Engineering;

3. there is no evidence that your motivation in acting as you did was other than to act in what you in good faith believed to be the public interest; and

4. you have fully cooperated in the Commission's investigation of this matter and have provided all information 

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requested.

The Commission's decision to allow you to resolve this matter with a public enforcement letter, however,' should not be construed as indicating that it does not consider the issues raised by your conduct to be serious. Section 19 of G.L. c. 268A, like many other sections of the conflict law, is intended to prevent any questions arising as to whether the public interest has been served with the single-minded devotion required of public employees. This concern is compounded when, as was the case here, the employee does not disclose to his appointing official the private employment arrangements he has made. Had you made such a disclosure, the Town Manager, pursuant to the law, could have made a determination whether or not to permit you to continue to participate in matters concerning Dunn Engineering.

III. Disposition

Based on its review of this matter, the Commission has determined that the sending of this letter should be sufficient to ensure your understanding of the law. This matter is now closed. Thank you very much for your cooperation. If you have any questions, please contact me at 727-0060.

[1] The minutes of the Selectmen's meeting on July 24,1985 indicate that a condition of your approval of the connection was that a 1% minimum slope of the sewer line would be maintained. The minutes further show that the Selectmen did not approve the connection at this meeting but rather voted to table the matter in order to give town counsel the opportunity to review the legal issue of who would be responsible for the sewer connection in the event of future problem. 

[2] "Participate," participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. 

[3] "Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.