Letter Ruling Public Enforcement Letter 96-1: Vincent D. Barletta
Vincent D. Barletta, President
Douglas Environmental Associates, Inc.
c/o David E. Lurie, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
One Financial Center
Boston, MA 02111
Dear Mr. Barletta:
As you know, the State Ethics Commission ("Commission") has conducted a preliminary inquiry concerning whether you violated the state conflict of interest law, G.L. c. 268A, by providing compensation to Douglas Zoning Board of Appeals ("ZBA") member John Beukema ("Beukema") in relation to a particular matter in which the Town of Douglas was a party or had a direct and substantial interest, and which was a subject of Beukema's official responsibility as a ZBA member. Based upon the preliminary inquiry, the Commission voted on May 9, 1995 that there is reasonable cause to believe that you violated s.17(b) of G.L. c. 268A. The Commission, however, does not believe that further proceedings are warranted. Instead, the Commission has determined that the public interest would be better served by bringing to your attention, and to the attention of the general public, the facts revealed by the preliminary inquiry and by explaining the application of the law to such facts, with the expectation that this advice will ensure your understanding of and future compliance with the conflict of interest law. By agreeing to this public letter as a final resolution of this matter, you do not admit to the facts and law discussed below. The Commission and you have agreed that there will be no formal action against you in this matter and that you have chosen not to exercise your right to a hearing before the Commission.
1. You are the president of Douglas Environmental Associates, Inc. ("DEA"). At the time here relevant, DEA was developing a proposed landfill and recycling facility to be located on nearly 290 acres on the north side of Route 16 in Douglas. Browning-Ferris Industries, Inc. ("BFI") was the proposed operator of the landfill and recycling facility.
2. John Beukema ("Beukema") was, during the time here relevant, a member of the Douglas Zoning Board of Appeals ("ZBA"). At the time here relevant, ZBA members were designated special municipal employees as defined in G.L. c. 268A, s.1(n). Beukema was also self-employed as an architect, with an office in Douglas, and did business as JN Albert Associates.
3. At the time here relevant, Mark Conley ("Conley") was a BFI employee who managed BFI's involvement in the Douglas project. Conley was primarily responsible for the development of the recycling portion of the Douglas project.
4. Sometime in mid-1991, Conley recommended to you that Beukema be hired to design the recycling buildings, in part because Beukema was a Douglas resident and it would be good public relations to utilize "local talent." You approved Conley's recommendation.
5. In September 1991, Beukema, d/b/a JN Albert Associates, entered into an Architectural Service Agreement ("Service Agreement") with BFI to design the buildings for the recycling facility. Pursuant to the Service Agreement, Beukema was to be paid a fee of $2,920 for the design of the recycling buildings. The Service Agreement further provided, "When requested, the architect shall assist the owner in acquiring necessary permits."
6. After entering into the Service Agreement, Beukema proceeded to draw up plans for the recycling buildings and site layout.
7. Pursuant to the Service Agreement, in 1992, Beukema prepared an application to the ZBA for a special permit (Site Plan Review) for the proposed recycling center under Section VI 6:02 of the Douglas Zoning Bylaw. The special permit application named you as the applicant. Beukema signed the application on your behalf on July 13, 1992, and filed it with the ZBA. The application was received by the ZBA on July 16, 1992. The ZBA then scheduled a public hearing on the matter for August 12, 1992, and gave public notice of the meeting by posting and newspaper advertisement between July 22, 1992, and August 5, 1992.
8. On August 12, 1992, you, Beukema, Conley and DEA Project Manager Sean O'Hearn ("O'Hearn") attended the ZBA public hearing relating to the recycling center. Beukema, as your architect, made a presentation to the ZBA describing the recycling center and responded to questions from the ZBA and members of the public.
9. Near the end of the August 12, 1992 ZBA public hearing, a member of the public questioned
whether Beukema was "going to sit" as a ZBA member on the special permit application matter and whether that would be a conflict of interest. In a response, ZBA Chairman Bacon stated that Beukema would not vote on the matter and that, because ZBA members had been designated as special municipal employees, Beukema's being the special permit applicant's architect did not create a conflict of interest. Bacon was then asked if the ZBA had consulted the Commission on the issue and Bacon responded "no".
10. Beukema abstained from any participation in the recycling center matter as a ZBA member. On September 22, 1992, the ZBA, without Beukema participating, unanimously approved the special permit subject to several conditions.
11. Although the Service Agreement was between Beukema, d/b/a JN Albert Associates, and BFI (rather than you or DEA), you, in your capacity as DEA's president, caused DEA to make at least two payments to Beukema pursuant to the Service Agreement. In October 1991, you signed a DEA check paying JN Albert Associates $1,000. In November 1992, you signed a DEA check paying JN Albert Associates $1,280. Both payments by DEA were made in response to JN Albert Associates' invoices to BFI, which were forwarded to DEA.
12. You cooperated fully with the Commission's investigation of this matter.
As a ZBA member, Beukema was a special municipal employee. As such, Beukema and, under some circumstances, private parties doing business with him (such as yourself), were and are subject to the conflict of interest law, G.L. c. 268A.
Section 17(a) of G.L. c. 268A prohibits a municipal employee from, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receiving or requesting compensation from anyone other than the municipality or a municipal agency in relation to any particular matter in which the municipality is a party or has a direct and substantial interest. Section 17(b) of G.L. c. 268A prohibits anyone from knowingly giving, offering or promising compensation to a municipal employee which the employee is prohibited from receiving under s.17(a). Section 17 further provides that a "special municipal employee", such as Beukema, is only subject to s.17(a) in relation to a particular matter (a) in which he has participated as a municipal employee, or (b) which is or within one year has been a subject of his official responsibility, or (c) which is pending in the municipal agency in which he is serving (provided he has served more than 60 days during any 365 consecutive day period).
The special permit site plan review for the landfill recycling facility, for which Beukema applied on your behalf with the ZBA in July 1992, was a particular matter in which the Town of Douglas was a party and had a direct and substantial interest. That particular matter, at the time Beukema represented you before the ZBA (on August 12, 1992) and at the time he received compensation from DEA (in November 1992), was (or within one year had been) a subject of Beukema's official responsibility as a ZBA member. This was the case even though Beukema abstained from participating in the particular matter as a ZBA member. Therefore, condition (b) of the special municipal employee provisions in s.17 was satisfied and s.17(b) prohibited you from knowingly, directly or indirectly, providing compensation to Beukema in relation to the special permit site plan review application. Accordingly, there is reasonable cause to believe you violated G.L. c. 268A, s.17(b) by, as DEA's president, causing DEA to compensate Beukema.
Based upon its review of this matter, the Commission has determined that this public letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law.
This matter is now closed.