Settlement  Disposition Agreement in the Matter of Charles Carroll

Date:	02/22/2021
Organization:	State Ethics Commission
Docket Number:	20-0008
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Disposition Agreement

The State Ethics Commission (“Commission”) and Charles Carroll (“Carroll”) enter into this Disposition Agreement pursuant to Section 3 of the Commission’s Enforcement Procedures.  This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j). 

On June 20, 2019, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A.  On December 19, 2019, the Commission concluded its inquiry and found reasonable cause to believe that Carroll violated G.L. c. 268A, § 19.

The Commission and Carroll now agree to the following findings of fact and conclusions of law:

Findings of Fact

1.            Carroll, a resident of the Town of Templeton (“Town”), has served as an unpaid, elected member of the seven-member Town Planning Board (“Planning Board” or “Board”) for approximately nine years.

2.            During the relevant period, the population of Templeton was approximately 8,013.

3.            Carroll’s father owns, and at all times relevant hereto owned, a single-family house on Patriots Road in Templeton which is in the Residential-Agricultural-2 zone. Carroll’s father’s house sits on one-quarter of an acre. The Residential-Agricultural-2 zone, according to zoning bylaws passed after the construction of Carroll’s father’s home, requires a minimum lot size of two acres. As such, Carroll’s father’s house has pre-existing, nonconforming status as a single-family house. Carroll’s father rents out the single-family house.

4.            At a Planning Board meeting on July 11, 2017, the Board discussed proposing to Town Meeting warrant articles rezoning certain areas of Town, including an area of Patriots Road/Route 2A and an area of Baldwinville Road, to increase the Town’s commercial property tax base. Some Board members stated at the meeting that the Patriots Road/Route 2A area and Baldwinville Road area had a significant number of preexisting non-conforming businesses operating in residential zones.

5.            At the July 11, 2017 Planning Board meeting, the Board discussed proposing the rezoning of fifty-three properties, including Carroll’s father’s property, in the area of Patriots Road/Route 2A. At all relevant times, Carroll knew that the area proposed for rezoning included his father’s Patriots Road property.

6.            Carroll participated as a Planning Board member in the Board’s July 11, 2017, rezoning discussion by stating that he supported the proposed rezoning and believed that the Board should propose additional rezoning to encourage commercial growth in Town.

7.            During the July 11, 2017 Board meeting, a fellow Board member asked the Board Chair how to address the fact that some Board members owned property in the Patriots Road/Route 2A area proposed for rezoning. Carroll stated that his father owned property in the area.  The Board Chair stated that Board members could participate if they “did a disclosure.”

8.            The Planning Board held a public hearing on the proposed rezoning on September 19, 2017. Carroll did not attend the September 19, 2017 public hearing. The rezoning warrant article, proposing changing the Patriots Road area from the Residential-Agricultural-2 zone to the Highway Business zone, was put on the agenda for the Town Meeting held on November 14, 2017. The rezoning warrant article did not pass at the 2017 Town Meeting.

9.            The Highway Business zone requires a minimum lot size of one acre.

10.         On November 13, 2018, the Planning Board held a public meeting to discuss submitting to the spring 2019 Town Meeting warrant articles rezoning the same areas of Patriots Road/Route 2A and Baldwinville Road.

11.         Carroll participated as a Planning Board member in the Board’s November 13, 2018 discussion of the re-submission of the Patriots Road/Route 2A and Baldwinville Road areas rezoning warrant articles to Town Meeting. Carroll stated that he agreed with a proposal that the Board focus on rezoning major arteries with easy access to Route 2 to encourage current and new business, and that he supported anything the Board could do to increase tax revenue.

12.         During the November 13, 2018 Planning Board meeting, the Board Chair read aloud from a Town resident’s letter to the Board that questioned certain Board members, and/or their family members, including Carroll, owning property in the areas to be rezoned. A second resident, present at the meeting, questioned the Board’s repeated attempts to rezone areas where certain members of the Board, and/or their family members, owned property.

13.         After multiple Patriots Road/Route 2A-area residents expressed their opposition to rezoning at the November 13, 2018 Board meeting, the Planning Board discussed not including the Patriots Road/Route 2A area in a rezoning recommendation to Town Meeting. The Board then voted to schedule a public hearing on rezoning only the proposed section of Baldwinville Road. Carroll voted in favor of proceeding only as to the Baldwinville Road rezoning proposal.

Conclusions of Law

Section 19

14.         Section 19 of G.L. c. 268A prohibits a municipal employee from participating¹  as such an employee in a particular matter²  in which, to his knowledge, he or an immediate family member³  has a financial interest.⁴ 

15.          As a member of the Planning Board, Carroll is a municipal employee as that term is defined in G.L. c. 268A, § 1(g). 

16.         The Planning Board’s decisions whether to submit warrant articles rezoning portions of Patriots Road/Route 2A in 2017 and 2018 were particular matters. 

17.         Carroll participated in the rezoning particular matters as a Planning Board member by discussing the proposals at the July 11, 2017, and November 13, 2018, Planning Board meetings and by voting in favor of proceeding only as to the Baldwinville Road proposal at the November 13, 2018 Planning Board meeting. 

18.         Carroll’s father is his immediate family member.

19.         At the time of his participation as a Planning Board member in the rezoning particular matters, Carroll’s immediate family member had to his knowledge a financial interest in the matters because the proposed zoning change would have rezoned Carroll’s father’s property from the Residential-Agricultural-2 zone to the Highway Business zone. Therefore, although Carroll’s father’s property is undersized in both the Residential-Agricultural-2 zone and the Highway Business zone, Carroll’s father, his tenant, and/or a future purchaser of the property would have the option to operate certain Highway Business permitted uses on the property. As a matter of law, Carroll’s father had a financial interest in changes to the zoning of his property.⁵ 

20.         The exemption to § 19 stated in § 19(b)(3)⁶  did not apply because Carroll’s father’s financial interest in the rezoning proposal was not shared with a substantial segment of the population of Templeton.⁷

21.         Therefore, Carroll violated § 19 by participating as a Planning Board member in the Board’s decisions whether to submit warrant articles rezoning portions of Patriots Road/Route 2A. 

Resolution

In view of the foregoing violations of G.L. c. 268A by Carroll, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the following terms and conditions agreed to by Carroll:

(1)          that Carroll pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $1,500 as a civil penalty for violating G.L. c. 268A, § 19; and

 (2)         that Carroll waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

 

By signing below, Carroll acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to all terms and conditions herein.

STATE ETHICS COMMISSION

 

/s/ Charles Carroll

/s/ David A. Wilson Executive Director

 

^[1] “Participate” means to 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.  G.L. c. 268A, § 1(j).

^[2] “Particular matter” means 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.  G.L. c. 268A, § 1(k).

^[3] “Immediate family” means the employee and his spouse, and their parents, children, brothers and sisters.  G.L. c. 268A, § 1(e).

^[4] “Financial interest” means any economic interest of a particular individual that is not shared with a substantial segment of the population of the municipality.  See Graham v. McGrail, 370 Mass. 133 (1976).  This definition has embraced private interests, no matter how small, which are direct, immediate or reasonably foreseeable.  See EC-COI-84-98.  The interest can be affected in either a positive or negative way.  EC-COI-84-96.
 

^[5] See Commission Advisory No. 05-02: "Voting on Matters Affecting Abutting or Nearby Property," which states: "Under the conflict of interest law, a property owner is presumed to have a financial interest when…the matter would otherwise alter her property value, rights or use. For example, a property owner is presumed to have a financial interest in zoning changes, variances, nearby subdivision or development approvals, and roadway, sewerage or safety improvements."
 

^[6] Section 19(b)(3) of G.L. c. 268A provides that § 19 is not violated if the particular matter involves a determination of general policy and the interest of the municipal employee or members of his immediate family is shared with a substantial segment of the population of the municipality.

^[7] Under Commission precedent, a “substantial segment” is ten percent or more of the population. See EC-COI-93-20; EC-COI-92-34. Because fewer than ten percent of Templeton’s population owned property in the area of Patriots Road/Route 2A to be rezoned, Carroll’s father’s financial interest in the rezoning proposal was not shared with a substantial segment of the Town’s population.