Order  In the Matter of Thomas H. Nolan

Date:	06/12/1989
Organization:	State Ethics Commission
Docket Number:	361

• Appearance for Petitioner: Irene Scharf, Esq.
• Commissioners: Diver, Ch., Basile, Epps, Jarvis, Pappalardo

Ruling on Motion for Summary Decision

Page 415 

On December 30, 1988, the Petitioner filed a Motion for Summary Decision, pursuant to the Commission's Regulations, 930 CMR 1.01 (6)(f)(2).[1] For the reasons stated below, we grant the Petitioner's Motion and order the Respondent Thomas Nolan to pay a civil penalty of two thousand dollars. 

Under 930 CMR 1.01 (6)(f)(2), the Commission may enter a summary decision in favor of the Petitioner when the record discloses the Respondent's failure to file required documents, to respond to notices or correspondence, to comply with orders of the Commission or Presiding Officer, or otherwise indicates a substantial failure to cooperate with the adjudicatory proceeding. The record in this case amply warrants the entry of a summary decision in favor of the Petitioner. Despite notice, the Respondent has failed to file an answer to the October 1988 order to show cause, has failed to respond either orally or in writing to any of the subsequent requests, notices or orders of the Petitioner or Presiding Officer[2] and has failed to appear at a hearing to show cause why summary judgment should not be entered against him. 

The order to show cause alleges that the Respondent, a mayor and municipal employee for the purposes of G.L c. 268A, violated G.L c. 268A, s.s.2[3] and 3[4] by promising city fire-fighters that he would not schedule a promotional civil service examination in November 1987 if the firefighters agreed to him in his reelection campaign.[5] The Respondent's failure to defend or otherwise respond to the allegations constrains us to conclude that the Respondent has violated G.L. c. 268A, s.2 and 3. 

In light of the seriousness with which we view these violations, we conclude that a maximum statutory fine of two thousand dollars ($2,000.00) is appropriate. Accordingly, pursuant to G.L. c. 268B, s.4(j)(3), we hereby order the Respondent, Thomas Nolan, to pay to the Commission a civil penalty of two thousand dollars ($2,000.00) within thirty days of receipt of this ruling.

[1] 930 CMR 1.01(6)(f) provides as follows: 

1. Any Party may with or without supporting affidavits move for summary decision in his favor, as to all or part of a matter. If the motion is granted as to part of the matter and further proceedings are necessary to decide the remaining issues, a hearing shall be so held. Such a motion may be granted only by the Commission. 

2. When the record discloses the failure of the Respondent to file documents required by these Rules, to respond to notices or correspondence, or otherwise indicates a substantial failure to cooperate with the Adjudicatory Proceeding, the Presiding Officer may issue an order requiring that the Respondent show cause why a summary decision should not be entered against him. If the Respondent fails to show such cause, a summary decision may be entered in favor of the Petitioner. Any such summary decision shall be granted only by the Commission, shall be a Final Decision, and shall be made in writing as provided in s.9(m) of these Rules. 

[2] See, e.g., January 20, 1989 letter from Presiding Officer to Respondent; March 20, 1989 Order issued by Presiding Officer to Respondent. 

[3] G.L.c. 268A, s.2(b) prohibits a municipal employee from directly or indirectly corruptly soliciting anything of value for himself or for any other person in return for being influenced in his performance of any official act or act within his official responsibility. 

[4] G.L. c. 268A, s.3(b) prohibits a municipal employee from directly or indirectly soliciting for himself anything of substantial value, otherwise as provided by law for the proper discharge of official duties, for or because of any official act performed or to be performed by him. 

[5] In particular, 13 of the Order to Show Cause

 Page 416 

asserts: 

On July 14, 1987, ten of the foregoing eleven lieutenants and Mayor Nolan met. The lieutenants raised their fairness concern about a November exam. During this meeting Mayor Nolan promised the lieutenants that there would be no November exam if the lieutenants would support him in the upcoming election. One of the lieutenants then accused Mayor Nolan of political blackmail, and Mayor Nolan asked the following question: if he could give lieutenants what they wanted, why could they not give him what he wanted? The meeting concluded with no agreement as to whether a captains' exam would be conducted in November, 1987.