Letter Ruling Public Enforcement Letter 91-1: Malcolm FitzPatrick
Dear Mr. FitzPatrick:
As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that, as a Stow Selectman, you participated in particular matters relating to the Apple Farm development, an affordable housing project to be built at 328-330 Great Road, Stow. The results of our investigation (discussed below) indicate that the conflict of interest law may have been violated in this case. However, in view of certain mitigating circumstances (also discussed below), the Commission does not feel further proceedings are warranted. Rather, the Commission has determined that the public interest would be better served by bringing to your attention 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 the law. By agreeing to this public letter as a final resolution of this matter, you do not admit to the facts and law discussed therein. 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.
A. Time Period Before You Became a Selectman
1. On March 4, 1988, Brian Lafferty, president of the Apple Farm Development Corporation, filed with the Stow Town Clerk an application for a comprehensive permit for Apple Farm, an affordable housing development including subsidized multi-family condominiums. The application proposed to construct 36 townhouse style units on approximately 11.5 acres of land. This land comprises lots 48, 49 and 50 on the Stow Assessors map. A house and garage presently exist on lots 49 and 50, respectively. Apple Farm was to be the first condominium development in Stow. The comprehensive permit application was filed before the town adopted regulations establishing a procedure for handling such permit applications. The comprehensive permit application form provided, among other things, that, “owners of property directly opposite on any public or private street(s) or way(s) as they appear in the Assessors records, shall be considered a direct abutter.”
2. According to the comprehensive permit application, approximately seven acres of Apple Farm’s site would remain as natural open space under post development conditions. You maintain that five of these acres are wetlands. The application represented that there would be no significant changes in drainage patterns, no introduction of pollutants into surface or ground water, and no air quality degradation as a result of traffic generated by the development.
3. You and your wife reside at 323 Great Road, across the street from lots 49 and 50 of Apple Farm’s proposed site, separated from Great Road by a tree covered bicycle/pedestrian easement and two lots (36 and 38) owned by the Union Evangelical Church. Your property is depicted on lot 26 of the Assessors map. This property is within 300 feet of lots 49 and 50.
You also own a perpetual right-of-way over a strip of land on lot 36, which is adjacent to your lot 26. The right-of-way runs over a paved parking lot, and leads to the driveway to your home. You use this right-of-way as the primary access to your property.
4. While the Apple Farm development as a whole will occur on three lots, the bulk of construction will occur on lot 48, the site of the proposed condominiums. Lot 48 is behind lots 49 and 50, which border Great Road. There is a significant drop in elevation between lot 48 and your property. The developer proposed to build an entrance to Apple Farm that would be approximately 25-50 feet wide and located on lot 49. When finished, the entrance to Apple Farm would be within 50 feet of your right-of-way on Great Road.
5. On March 10, 1988, the Stow Board of Zoning Appeals (ZBA) forwarded a copy of Apple Farm’s application to various town boards, including the Conservation Commission and Selectmen. The ZBA requested all boards to review the application and
submit written comments with documentation for any exceptions taken to the application. The ZBA scheduled the public hearing on Apple Farm for April 4, 1988. You received advance notice of this hearing by certified mail as a party in interest pursuant to G.L. c. 40A. §11 and G.L. c. 40B, §21. You were sent this notice because the Stow Assessor’s office determined that you were one of the “abutters” within 300 feet of lots 49 and 50 of Apple Farm.
6. Between March 24th and April 4, 1988, various town boards and employees submitted letters to the ZBA regarding Apple Farm. These included the Selectmen, Police Chief, Board of Health, and Planning Board. While many letters expressed reservations and/or conditions recommended by these boards, most generally supported the application.
7. On April 4, 1988, the ZBA held a public hearing on the Apple Farm Comprehensive Permit Application. You did not attend the public hearing but your wife, Elizabeth FitzPatrick, did. Your wife submitted a petition to the ZBA which was prepared and signed by you. The petition requested that the ZBA determine that the proposed density of the project was too great for the site. It states, “the burden of this increased intensity of land use does not fall on the present owner of the land nor the developer, but on the surrounding residents and more generally on the residents of Stow.” The petition requested that the project be thoroughly reviewed by professionals and recommended that the ZBA wait until the May town meeting approved a housing partnership to review the comprehensive permit application. It further recommended that the ZBA request $5,000 from the Selectmen to fund a study of Apple Farm’s comprehensive permit application.
8. Although the comprehensive permit application was deficient at the April 4, 1988 ZBA hearing because it failed to contain a site approval letter from the MHFA, after discussion between town counsel and the developers attorney, the ZBA executed an extension agreement with the developers which provided that “… the hearing of the Board on the application of Apple Farm shall be closed as of April 4, 1988 provided, however, that Apple Farm agrees to grant the Board an extension of the Board’s 40-day deadline within which the Board must draft a decision under c. 40B. Said 40-day period shall commence only upon the submission to the Board of a site approval letter. Further the parties agree that the time for submitting additional materials by other town Boards shall be similarly extended.” The meaning of this agreement became the subject of dispute between the developers and the town while Apple Farm was pending.
9. By letter dated April 13, 1988 and addressed “To whom it may concern,” Selectmen Ken Farrell and James Dunlap voiced their support for Apple Farm’s MHFA funding application. The MHFA issued a letter to the Selectmen on April 20, 1988 which requested comments relating to the developer’s efforts to negotiate the project with the community and any information and issues related to the project. By letter dated April 29, 1988, Selectmen Farrell and Dunlap submitted to MHFA numerous letters from other town boards concerning Apple Farm’s application. They also submitted the citizen’s petition that your wife had submitted to the ZBA. The Selectmen’s cover letter to MHFA represented that the town boards supported the concept of Apple Farm while identifying “concerns and issues” that remained to be addressed. The Selectmen also stated they had voted to support the concept of affordable housing submitted by Apple Farm Development, Inc.
B. Time Period After You Became a Selectman
10. You were elected to the Stow Board of Selectmen in early May, 1988. Between May and October, 1988, you participated in your official capacity in various particular matters related to Apple Farm, as described below.
11. At a joint meeting of the town Boards on May 12, 1988, you solicited detailed information about Apple Farm’s comprehensive permit application and advocated that the developer be required to obtain a hydrogeological study of the site. You proposed that the ZBA deny the application based on the need for additional information.
12. Town Counsel Jacob Diemert vaguely recalled a discussion with you after this meeting in which you may have represented that you were not an abutter to Apple Farm and inquired whether you had a conflict of interest regarding Apple Farm. He recalled telling you to distinguish when you were acting as spokesman for the Selectmen and when you were only speaking for yourself. He also indicated that he customarily advises municipal officials to submit written requests for opinions and that opinions may be sought from the State Ethics Commission. Your recollection is that you received no such advice from attorney Diemert. You did not submit a written request for an opinion to town counsel nor to the Commission.
13. On May 17, 1988, the Board of Selectmen appointed fourteen residents to the Stow Housing Partnership. The Selectmen also appointed you to this
14. You also attended a ZBA meeting on May 18, 1988. This meeting was convened under the open meeting law. Correspondence sent by the ZBA to the Selectmen on April 28, 1988 indicates that, at that time, the ZBA intended the May 18th meeting to be open for public comments. At the beginning of the May 18th meeting the ZBA Chairman read a statement as to the issue of whether the meeting would be public. In any event, it is undisputed that you participated in this meeting. Brian Lafferty asked you whether you were speaking as a Selectman or as a resident of Stow, however, ZBA Chairman Robert Byrd stated that be recognized you as a Selectman.
You stated that the geology of the site was important to know, and that construction might cause ground water to be drained. You suggested that the development could pump neighboring wells dry and contaminate ground water. You read a list of 22 questions related to Apple Farm. Among other things, you asked what consideration would be given by the town as by property tax abatements to property owners who would be impacted by the development.
15. Town Counsel Robert Ruzzo and Selectman Wayne Erkinnen indicated that the May 18, 1988 ZBA meeting was, in effect, a working meeting of town boards, and that it was not open for public comment. You testified that, in your view, you participated in this meeting as a private citizen, not in your official capacity as a Selectman. You testified that you were not aware of any conflict of interest at that time, but spoke as a private citizen to avoid embarrassing the other Selectmen. You acknowledged, however, that you had a sense that Brian Lafferty was suggesting that you had a possible conflict of interest at that meeting.
16. At the May 24, 1988 Selectmen’s meeting, you suggested that the Selectmen should withdraw their support for Apple Farm based on the project’s density. While you thought the site was appropriate for single family homes, you opposed condominiums because a stigma would attach to those who lived there in that, insofar as the development was not consistent with the style of housing in the surrounding neighborhood, it would be apparent that the development contained affordable housing.
17. As a result of the May 24, 1988 Board of Selectmen’s meeting, you sent a letter to town counsel by fax from Selectman Erkinnen’s private office. Both Selectmen Dunlap and Erkinnen knew and consented to your sending this letter, which sought advice about Apple Farm and the comprehensive permit process generally and the application of G.L. c. 40A, §11 and G.L. c. 40B, §21. The letter was not sent on Board of Selectmen’s stationery. You signed the letter in your capacity as a Stow Selectman.
18. Sometime in May or June, 1988, Selectman Dunlap gave you a copy of the Commission’s Fact Sheet titled “Municipal Officials: Don’t Vote on Matters Affecting An Abutting Property.” This Fact Sheet states, in part,
The conflict of interest law states that a municipal official may not participate (by voting, discussing or otherwise acting) in any matter which affects his or her own financial interest. The Ethics Commission has ruled that it would presume that municipal officials may not take action in their official capacity on matters affecting property which abuts their own unless they can clearly demonstrate that they do not have a financial interest in the matter.
The Fact Sheet states that the Commission issued a public letter critical of a Selectman who participated in negotiations for the towns purchase of a private landfill located directly across the street from his home. This portion of the Fact Sheet was highlighted in pink.
19. On June 10, 1988, the MHP informed Lafferty that his application had been accepted for funding subject to certain conditions.
20. On or about June 15-16, 1988, you met with Sarah Robertson, MHP’s regional representative to the Stow Housing Partnership, to ascertain whether the Stow Housing Partnership should be reviewing Apple Farm. You forwarded copies of various documents related to Apple Farm to Robertson by letter dated June 21, 1988. You signed the letter as a Stow Selectman and Housing Partnership member. You acknowledged that you contacted Robertson in your capacity as Selectman and Stow Housing partnership member.
21. You participated in the June 21, 1988 Board of Selectmen’s meeting by advocating that a $3000 grant be administered through the Selectmen and Stow Housing Partnership to review Apple Farm. Selectmen Dunlap and Erkinnen felt that the Stow Housing Partnership should not be involved in this review, since the housing partnership was created after Apple Farm had been reviewed by various town boards.
You also were reappointed as an associate member of the Stow Conservation Commission on
June 21, 1988. Associate members have no voting rights.
22. On July 7, 1988, you wrote to Amy Anthony, co-chairman of MHP, and stated that “... the Selectmen have received a MAP grant to analyze the project and have appointed a local housing partnership. To date, no negotiations have occurred between the developers and the ZBA.” The letter asks, “believing negotiations to be crucial is ... there any legal reason why the local Housing partnership should not be negotiating with the developer ...?” You signed this letter Malcolm FitzPatrick, Stow Selectman and member of Stow Housing Partnership.
23. By letter dated July 15, 1988, the MHP informed Brian Lafferty that a subsidy had been set aside for Apple Farm under the HOP program. On July 20, 1988, the MHFA issued a site approval letter for Apple Farm. This started the ZBA’s time clock running for the Apple Farm decision. Per agreement with the developer, the ZBA had 70 days to make a decision.
24. On August 16, 1988, you participated in a Selectmen’s meeting and posed questions regarding affordable housing issues generally and Apple Farm in particular. The minutes of this meeting state, “Mr. Diemert (Town Counsel) said that if Mr. FitzPatrick wished certain conditions be included in a decision he should suggest same.”
25. As a result of the aforementioned meeting, you submitted a letter to the ZBA which requested that the ZBA seek additional time from the developers in which to address issues related to Apple Farm. You testified that town counsel specifically advised you to send this letter on Board of Selectmen’s stationery. Town counsel indicated that he did not advise you to do this specifically but he could understand how you might have interpreted his remarks that way. Town Counsel indicated that he advised you to address your concerns to the ZBA directly and in a fashion that made it clear that you were speaking for yourself only, not the Board of Selectmen as a whole. You recall that Town Counsel told you to make it clear you were speaking for yourself as a single Selectman.
26. On August 19, 1988, the ZBA issued its decision on Apple Farm’s comprehensive permit application. The decision allowed the application with various conditions and was filed with the town clerk. Pursuant to G.L. c. 40A, §17, any appeal of this decision had to be filed on or before September 9, 1988. It appears that you had the right to appeal the decision as a “person aggrieved” within the meaning of G.L. r. 40A, §17.
Shortly before August 30th, you met with an informal group of neighbors who had previously voiced objections to Apple Farm. You discussed appealing the ZBA’s decision and the cost of that process. You testified that it was the consensus of this group that the town should bear this expense and that the Board of Selectmen should appeal the ZBA’s decision. Your wife typed a list of eight grounds to appeal the decision which were developed at the neighborhood meeting. You expected this group to present the list at the upcoming August 30, 1988 Selectmen’s meeting.
28. On August 29th and 30, 1988, you consulted acting Town Counsel Paul Killeen concerning the Ethics Commission’s ruling on abutters and the rule of necessity. You sought this advice in anticipation of the Selectmen’s August 30, 1988 meeting, at which the neighbors and opponents of Apple Farm intended to request that the Selectmen appeal the ZBA’s decision. As a result of your conversation with acting town counsel, you understood that you could participate in matters related to Apple Farm because you were not an abutter and did not have a conflict of interest. You also understood that the rule of necessity could be invoked to obviate any existing conflict of interest. Attorney Killeen faxed you copies of the Commission’s Fact Sheets on Abutters and the Rule of Necessity.
29. Acting Town Counsel Killeen recalled that you telephoned him on several occasions between August 29-30, 1988. He testified that, initially, you asked a series of abstract questions generally related to whether someone who was located across the street and several lots removed from a particular site was an “abutter.” Attorney Killeen recalled that he advised you of the definition of “abutter” in Black’s Law Dictionary. He also recalled that you disclosed additional facts as your conversation progressed. You eventually acknowledged that you were calling with regard to Apple Farm, and that you had received notice as a party in interest to the comprehensive permit application. Attorney Killeen recalled that he advised you that the Commission would probably consider you to be an “abutter” to Apple Farm. He also recalled that he did not advise you to invoke the rule of necessity, but stated that “caution was due” and, in his view, the circumstances did not present a true necessity. You deny receiving this advice.
30. On August 30, 1988, the citizens group appeared at the Selectmen’s meeting and asked the Selectmen to appeal the ZBA’s decision. You acknowledged that a question of your possible conflict of interest had been raised and asked that the board
invoke the Rule of Necessity to permit your participation. You and Selectmen Dunlap voted to invoke the rule. You moved that the Selectmen hire outside counsel to appeal the ZBA’s decision. Selectmen Dunlap did not favor the motion. Eventually you and Selectmen Dunlap voted to hire outside counsel to determine whether the ZBA’s decision provided the necessary protection to the town.
31. The following day, you scheduled a Selectmen’s meeting at the law offices of McGregor, Shea & Doliner to review the ZBA’s Apple Farm decision. Selectmen Erkinnen and Dunlap did not attend. You appeared briefly at Attorney McGregor’s office then left without retaining counsel to review or appeal the ZBA’s decision.
32. On September 5, 1988, the Selectmen again voted to invoke the Rule of Necessity and reversed the August 30th vote to hire outside counsel. This time Selectman Erkinnen participated in the vote. You voted against this motion.
33. On or about September 15, 1988, the developers filed a Notice of Intent for Apple Farm with the Stow Conservation Commission. According to you, you participated as a resident in the October 4, 1988 and October 18, 1988 Conservation Commission meetings on Apple Farm. You also contacted, upon the recommendation of the Chairman of the Conservation Commission, the Conservation Commission’s consultant, BSC Engineering (BSC) and discussed its review of Apple Farm’s Notice of Intent. You identified yourself as a resident of Stow, and also as a selectman and Conservation Commission Associate member when you contacted BSC.
BSC did not submit a report, citing an alleged conflict of interest. You did not sign the Conservation Commission’s Order of Conditions on Apple Farm’s Notice of Intent.
II. The Conflict Law
As of May, 1988, you were a Selectman for the Town of Stow and as such, a municipal employee under G.L. c. 268A, §l(g). You were subject to c. 268A generally, and, in particular, to §19. Section 19 prohibits a municipal employee from participating in particular matters in which, among others, he or a member of his immediate family has a financial interest. The concern of this section is that the objectivity and integrity of municipal employees can be compromised if they act on matters affecting their own financial interests. You should be aware that the Massachusetts Supreme Judicial Court has determined that participation involves more than just voting, and includes any significant involvement in a discussion leading up to a vote. See, Graham v. McGrail, 370 Mass. 133, 1.38 (1976). In that case, the Court advised that, “the wise course for one who is disqualified from all participation is to leave the room.” Id.
As discussed briefly above, the Commission’s precedent establishes that “parties in interest” as defined by G.L. c. 40A, §11 and “parties aggrieved” within the meaning of G.L. c. 40A, §17 are presumed to have a financial interest in the particular matter as to which they are “parties in interest” or “parties aggrieved.” See, EC-COI-89-33. The Commission established this presumption based on the fact that when one’s property rights stand to be significantly affected, the values of those rights also stand to be affected and thus, one’s financial interest is implicated. Id. Where the Commission has found a public official’s financial interest to be slight or non-quantifiable, however, the Commission has declined to impose a fine. See, In the Matter of Marguerite Coughlin, supra, where planning board member voted on variance application of property which abutted her own at one corner, the Commission found this violated G.L. c. 268A, §19 but did not impose a fine. Similarly, the Commission, declined to initiate adjudicatory proceedings In the Matter of George Prunier, Public Enforcement Letter 88-1, where the evidence suggested that Mr. Prunier placed the town’s interest before his own by advocating for the continued operation of a landfill across the street from his home. The Commission examined the evidence adduced during this preliminary inquiry in light of these principles.
The ZBA’s decision on Apple Farm’s comprehensive permit was a particular matter. Similarly, each Board’s decision related to this project was a separate particular matter as was each state agency’s decision with regard to the funding of the project. You presumably had a financial interest in these particular matters as a party in interest or as a party aggrieved. Absent evidence sufficient to rebut the presumption, participation is prohibited. Although the evidence on this question is conflicting, the Commission concludes that is not sufficient to rebut the presumption that you have a financial interest in Apple Farm. (Indeed even if you were not a “party in interest” or a “party aggrieved” for the reasons discussed below the Commission would conclude as a property owner within 300 feet of Apple Farm, you did have a reasonably foreseeable financial interest in these particular matters.)
While the topography of your property and that of the Apple Farm site suggest that there will be minimal, if any, visual impact on you, the evidence indicates that the anticipated traffic increase from this project is likely to affect adversely your property. This adverse impact would result both from an increase in the volume of cars, less than 1%, travelling on Great Road and from the location of the entrance to Apple Farm within 50 feet of your right-of-way. You would also be subject to adverse noise and dust during construction. The potential hazards associated with this proposed entrance and the increased inconvenience associated with a heightened traffic flow are reasonably likely to diminish the value of your property. Moreover, where you personally opined that the values of surrounding properties are likely to decline, it is reasonable to infer that, if you were correct, your property value may also be adversely affected from the attendant declines in surrounding property values. Therefore, the Commission concludes that you have a financial interest in Apple Farm and you were prohibited from participating in your official capacity in any particular matters related to this project.
The Commission concludes that there is sufficient evidence to find reasonable cause to believe that each of the actions enumerated above constitutes participation in your official capacity in Apple Farm, in violation of G.L. c. 268A, §19. Your violations are aggravated by the fact that you appear to have been on notice, at least as early as May 18, 1988, that you might have a conflict of interest relating to Apple Farm. You continued to participate notwithstanding this knowledge. Ordinarily the Commission would view these facts, if proven, as evidence reflecting a serious neglect of the conflict law, and would impose a fine. However, your violations are mitigated by the following circumstances.
First, the evidence suggests that there was substantial confusion among town officials regarding how to process Apple Farm’s comprehensive permit application. In this context, some of your official acts (e.g. your May 26, 1988 letter to town counsel and your comments at the August 16, 1988 selectmen’s meeting) addressed the comprehensive permit process generally and did not target Apple Farm. Such actions may be permissible pursuant to G.L. c. 268A §19(b)(3). Second, your actions had no impact on the town’s processing of Apple Farm. The ZBA had
70 days from the issuance of the July 20, 1988 site approval letter in which to issue its decision on Apple Farm. The ZBA issued its decision well within this time frame. Third, the Commission is persuaded that your actions were not motivated by self interest but rather by your perception of your duty as a selectmen to represent the interests of the abutters to Apple
Farm and the town as a whole. The evidence indicates that the project provoked fierce opposition among a small but vocal group of concerned citizens. You perceived it as your duty as the elected representative of this group to represent their interests. While the Commission rejects your contention that you had no financial interest in Apple Farm, the Commission is persuaded that this was not the motivating factor for your actions. Finally, while the Commission does not endorse your failure to contact your brother selectmen and advise them of your plans for the August 30th meeting, given Selectman Erkinnen’s persistent abstinence on affordable housing issues, on the surface it appears that the rule of necessity could have been invoked properly at that meeting.
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 and future compliance with the conflict of interest law. This matter is now closed. If you have any questions, please contact me at 727-0060.