Settlement  Disposition Agreement in the Matter of Douglas Gillespie

Date:	03/25/2021
Organization:	State Ethics Commission
Docket Number:	21-0002
Location:	Disposition Agreement in the Matter of Douglas Gillespie
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 Douglas Gillespie (“Gillespie”) 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 January 15, 2020, 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 February 18, 2021, the Commission concluded its inquiry and found reasonable cause to believe that Gillespie violated G.L. c. 268A, §§ 19, 23(b)(2)(ii), 23(c)(2), and 23(b)(3).

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

Findings of Fact

1. Gillespie, a resident of the Town of Weston (“Town”), served as an elected member of the Town’s Select Board (“BOS”) from 1998 through 2019.  
2. Gillespie served as BOS Chair from May 2017 through May 2018.
3. Gillespie served as the BOS representative to the Town’s Affordable Housing Trust from 2017 through June 2018.
4. Beginning in 2016, the Town sought to increase its affordable housing stock. Specifically, the Town sought to add approximately 275 units of affordable housing.
5. In 2016, the Town began negotiating with Boston Properties concerning a proposed affordable housing development, pursuant to G.L. c. 40B (“c. 40B”), at 133 Boston Post Road, Weston.
6. While the details of the c. 40B proposal were to be negotiated with Boston Properties by the Town Planning Board, the BOS was involved with the proposed development due to an existing development restriction on the 133 Boston Post Road site.
7. The BOS considered placing an article on a future Town Meeting warrant to lift the development restriction on the133 Boston Post Road site to allow the Boston Properties c. 40B proposal to proceed.

 751-761 Boston Post Road  

8. Privately, Gillespie and his three brothers own approximately 62 acres of land at 751-761 Boston Post Road (the “Carter/Gillespie Property” or “Property”) in Weston.
9. The land is held by two trusts. Gillespie is a trustee of the Steer Pasture Realty Trust, while his brother is a trustee of the Woodleigh Farms Trust.
10. In or about December 2017, a local developer (“Developer”) informed one of Gillespie’s brothers of his interest in purchasing the Carter/Gillespie Property for a housing development with an affordable component pursuant to c. 40B.
11. On or about February 5, 2018, the Developer met with a group of Town officials to propose an affordable housing development on the Carter/Gillespie Property. The Town officials supported the Developer’s proposal.
12. Between February 13, 2018 and August 8, 2018, the Developer continued to formulate his proposal pursuant to c. 40B for the affordable housing development on the Carter/Gillespie Property and to negotiate the purchase of the Property from Gillespie and his brothers.
13. At all relevant times, Gillespie knew that the Developer remained interested purchasing the Carter/Gillespie Property. At all relevant times, Gillespie and his brothers were working toward an agreement under which the Developer would purchase the Property.

Participation in Boston Properties c. 40B Proposal for 133 Boston Post Road

14. Between February 13, 2018, and August 8, 2018, Gillespie participated as a BOS member in discussions concerning Boston Properties’ c. 40B proposal for 133 Boston Post Road.
15. On February 13, 2018, Gillespie participated in a BOS meeting executive session concerning the Boston Properties proposal by updating the BOS on Boston Properties’ progress. Gillespie also participated in the BOS discussion of whether to propose lifting the site’s development restriction at the upcoming Town Meeting. Gillespie stated that the Boston Properties proposal alone would not satisfy the Town’s goal of developing “diverse affordable housing.”
16. During the February 13, 2018 executive session, the BOS also discussed the housing development proposed on the Carter/Gillespie Property, and how that new proposal might counterbalance the Boston Properties proposal. Gillespie participated in the BOS discussion.
17. At the February 27, 2018 BOS meeting, the Planning Board updated the BOS on the status of its negotiations with Boston Properties. Gillespie participated as a BOS member in the discussion of whether to propose lifting the Boston Properties site’s development restriction at the upcoming Town Meeting. Gillespie questioned whether there was sufficient time for “proper public education and outreach” before the Town Meeting.  
18. At the March 27, 2018 BOS meeting public session, the Planning Board presented the BOS with its recommendations on the Boston Properties proposal. The Planning Board and Boston Properties had not reached agreement as to the size of the proposal. Gillespie participated in the BOS discussion of next steps given the lack of agreement. After public comment on the current status of negotiations with Boston Properties, Gillespie assured residents that the development restriction question would not be on the upcoming Town Meeting warrant given the lack of agreement about the size of the Boston Properties proposal prior to the BOS vote on the warrant.
19. Following the March 27, 2018 BOS meeting public session, the BOS met in executive session to discuss next steps. Gillespie participated in the BOS discussion and resulting decision to hire a consultant to model the proposed 133 Boston Post Road development at the sizes proposed by the Planning Board and by Boston Properties.
20. At an April 3, 2018 BOS meeting in executive session, Gillespie participated in another discussion of modeling the Boston Properties proposal at both sizes. Gillespie “encouraged the BOS and the Planning Board to keep open communications with Boston Properties about the scope of the project.”
21. On April 9, 2018, Gillespie received an e-mail at his BOS e-mail address from the Boston Properties Senior Project Manager requesting an update on the status of the Boston Properties proposal. Gillespie informed the Project Manager that the BOS had hired consultants to model Boston Properties’ proposed development at two sizes.
22. On June 20, 2018, Gillespie attended the Affordable Housing Trust meeting. He provided the Trust with an update on the status of the Town’s negotiations with Boston Properties.

Approval of Town Planner’s Response to a Resident’s Complaint

23. On August 8, 2018, the Developer and the trusts holding the Carter/Gillespie Property signed an agreement giving the Developer the option to purchase the Carter/Gillespie Property (“Option Agreement”).
24. After signing the Option Agreement with the Carter/Gillespie family, the Developer publicly presented his c. 40B proposal for the Carter/Gillespie Property at the September 12, 2018 BOS meeting. Gillespie did not participate in the agenda item including the Developer’s presentation.
25. On September 28, 2018, a Town resident sent an e-mail to the Town Planner expressing concern about the Developer’s proposal for the Carter/Gillespie Property and questioning Gillespie’s involvement in affordable housing development proposals.
26. The Town Planner sent a proposed response to the resident to Gillespie, at Gillespie’s BOS e-mail address, to ensure that Gillespie “was okay with” the response. Gillespie responded that the proposed response was “ok [sic] with [him]” before the Town Planner sent the response to the resident.

Change to Meeting Minutes

27. On October 5, 2018, the Assistant to the Town Manager e-mailed the BOS members the draft minutes of the February 13, 2018 executive session.
28. The minutes referenced a discussion of the Developer’s c. 40B proposal for the Carter/Gillespie Property. The minutes did not indicate that Gillespie recused himself from the discussion.
29. Gillespie responded to the Assistant that there “was no discussion of [the Carter/Gillespie Property] at this meeting.” When the Assistant replied that she would “look into that,” Gillespie responded, “Please just take any reference to [the Property] out of minutes. Any mention by me was not for public consumption because it creates a conflict of interest for me. Bring revised copies to meeting, or remove it from consent agenda.” The reference to discussion of the Carter/Gillespie Property was removed from the meeting minutes.   

Additional Participation in c. 40B Matters

30. At the December 12, 2018 BOS meeting, the Planning Board informed the BOS that Boston Properties had agreed to build a smaller number of units than originally proposed for senior housing at 133 Boston Post Road. Gillespie questioned whether age-restricted units would count toward the Town’s affordable housing index.

Forwarding BOS Correspondence on c. 40B Matters

31. After Gillespie and his brother signed the Option Agreement on behalf of the trusts, and the Developer publicly presented his c. 40B proposal for the Carter/Gillespie Property, Gillespie continued to receive e-mails at his BOS e-mail address about the Property and other c. 40B proposals.
32. In October and November of 2018, Gillespie forwarded to his family members and their attorneys two letters from abutters who opposed the Developer’s c. 40B proposal for the Carter/Gillespie Property and one letter of support from the Town’s Affordable Housing Trust. Gillespie forwarded these e-mails within minutes of receiving them at his BOS e-mail address. Gillespie captioned one of the abutter e-mails “confidential.”
33. By contrast, when another developer made an e-mail request to the Town for abutter letters and letters of support concerning that developer’s proposal, he received an e-mail response from the Town sixteen days later.  
34. In or about November 2018, another developer informed the Town of his proposal to build an affordable housing development pursuant to G.L. c. 40B.
35. Between November 2018 and February 2019, Gillespie received e-mails from the Town Manager about this new c. 40B proposal.
36. Between November 2018 and February 2019, Gillespie forwarded to his family members and their trust attorneys three e-mails about the new c. 40B proposal. The e-mails included details about the new proposal, the Town Manager’s thoughts on how the new project might fit in with other affordable housing development proposals in Town, and the timeframe for the new proposal. One of the e-mails stated that it was “early. . . for a giant PUBLIC [sic] discussion.” Gillespie added the caption “confidential” to two of the three e-mails and forwarded the two e-mails to his family members and their trust attorneys within minutes of having received them.

Forwarding Legal Advice

37. On February 5, 2019, Gillespie received an e-mail from the Town Manager containing legal advice from Town Counsel about the procedure and timeframe for the BOS decision whether to exercise its right of first refusal on the Carter/Gillespie Property’s farmland. Gillespie forwarded the e-mail, including the legal advice, to his family members.
38. The Town redacted the legal advice from the e-mail when it provided the e-mail in response to a subsequent public records request by another party.
39. On or about February 21, 2019, the Carter/Gillespie Family signed a purchase and sales agreement with a real estate company to whom the Developer had assigned his option to purchase the Carter/Gillespie Property.

Conclusions of Law

Section 19

40. Section 19 of G.L. c. 268A prohibits a municipal employee from participating^[1] as such an employee in a particular matter^[2] in which, to his knowledge, he or an immediate family member^[3] has a financial interest.^[4]
41.  As a member of the BOS, Gillespie was a municipal employee as that term is defined in G.L. c. 268A, § 1(g). 

Participation in c. 40B Matters

Lifting of the Development Restriction on the Boston Properties c. 40B Proposal Site

42. The BOS decision whether to propose the lifting of the development restriction on the Boston Properties 133 Boston Post Road site at an upcoming Town Meeting was a particular matter.   
43. Gillespie participated, personally and substantially, in this particular matter by:

1. updating the BOS members on Boston Properties’ progress at the February 13, 2018 BOS meeting;
2. discussing whether to propose lifting the Boston Properties site’s development restriction at the upcoming Town Meeting at the BOS meeting executive session on February 13, 2018, and at BOS meetings on February 27, 2018, and March 27, 2018;
3. discussing the BOS decision to hire a consultant to model the Boston Properties proposal at two different sizes at the March 27, 2018, and April 3, 2018 BOS meeting executive sessions;
4. providing an update on the status of the proposal to Boston Properties’ Senior Project Manager by e-mail on April 9, 2018;
5. providing an update on the status of the proposal to the Affordable Housing Trust on June 20, 2018; and
6. discussing how the Developer’s proposal involving the Carter/Gillespie Property would counterbalance the Boston Properties proposal at the BOS meeting executive session on February 13, 2018, and the BOS meeting on December 12, 2018.

44. Gillespie’s brothers are his immediate family members.
45. At the time of his participation as a BOS member in the lifting of the Boston Properties site development restriction particular matter Gillespie and his immediate family members had, to his knowledge, a financial interest in the particular matter because, before and during the time that Gillespie participated as described above, they were negotiating the sale of the Carter/Gillespie Property to the Developer for purposes of an affordable housing development, which would compete with the Boston Properties proposal to fill the approximately 275 units of affordable housing needed in Town.
46. At the time of his participation in the December 12, 2018, BOS meeting, Gillespie and his immediate family members had, to his knowledge, a financial interest in the lifting of the Boston Properties site development restriction particular matter because they had signed an Option Agreement allowing the Developer to purchase the Carter/Gillespie Property for an affordable housing development.

Approving Response to Resident Complaint

47. The resident’s complaint to the Town Planner about the Developer’s proposal involving the Carter/Gillespie Property and Gillespie’s involvement in affordable housing discussions was a particular matter.
48. Gillespie participated in this particular matter by approving the Town Planner’s response to the resident.
49. At the time of his participation, Gillespie knew that he had a reasonably foreseeable financial interest in a complaint about his conduct as a BOS member.  
50. Therefore, Gillespie violated § 19 by repeatedly participating as a BOS member in decisions related to the Boston Properties proposal while his family negotiated the sale of their property to a developer for a competing purpose, and by participating as a BOS member in approving a response to a resident’s complaint about his actions.

Section 23(b)(2)(ii)

51. Section 23(b)(2)(ii) prohibits a municipal employee from knowingly, or with reason to know, using or attempting to use his official position to secure for himself unwarranted privileges which are of substantial value and which are not properly available to similarly situated individuals.

Changing BOS Meeting Minutes

52. Gillespie received a copy of the draft minutes from the February 13, 2018 BOS executive session in his official capacity as a BOS member.
53. When Gillespie requested that the Town Manager’s Assistant remove reference to the discussion of the Carter/Gillespie Property, he did so in his official capacity as a BOS member.
54. Gillespie requested that the reference be removed because it created a conflict of interest for him. Therefore, it was without proper justification and thus, unwarranted.
55. The unwarranted privilege was of substantial value because it removed evidence of a potential conflict of interest law violation.  
56. Similarly situated Town board members cannot properly request that meeting minutes remove a statement that creates a conflict of interest.
57. Thus, by using his position as a BOS member to cause the February 13, 2018 executive session meeting minutes to be changed, Gillespie knowingly or with reason to know used his official position to secure an unwarranted privilege of substantial value not properly available to similarly situated individuals. In so doing, Gillespie violated § 23(b)(2)(ii).

Forwarding Correspondence and Information about c. 40B Matters

58. Gillespie received e-mails from opponents and supporters of the proposal involving the Carter/Gillespie Property, and e-mails from the Town Manager which included the details and timing of a new affordable housing development proposal because of his position on the BOS.
59. Gillespie’s ability to provide to his family members and their attorneys information from opponents and supporters of the proposal involving the Carter/Gillespie Property, as well as information about a new proposal with the potential to compete with the proposal involving the Property, was a privilege. The ability to provide such information to his family members and their attorneys, without having to ask for it and without having to wait for an official response, was a privilege.
60. Gillespie’s use of his official position to provide information, given to him because of his BOS position, to his family members and their attorneys for their private use in the sale of the Carter/Gillespie Property, was unwarranted.  
61. The ability of Gillespie’s family members and their attorneys to know of opposition to and support of the proposal involving the Carter/Gillespie Property, and to know the details and timing of a new, competing proposal on the horizon, was of substantial value.  
62. Similarly situated property owners and developers did not properly have instant access to information about opposition, support, and upcoming proposals that would compete with their own.
63. Therefore, by using his position as a BOS member to forward e-mails containing opposition and support of the project, as well as e-mails about an upcoming proposal that may compete with the proposal involving the Carter/Gillespie Property, Gillespie  knowingly or with reason to know used his official position to secure an unwarranted privilege of substantial value not properly available to similarly situated individuals. In so doing, Gillespie violated § 23(b)(2)(ii).

Section 23(c)(2)

64. Section 23(c)(2) prohibits a public employee from improperly disclosing materials or data within the exemptions to the definition of public records as defined by section seven of chapter four, and were acquired by him in the course of his official duties, nor use such information to further his personal interest.
65. Gillespie obtained the February 5, 2019 e-mail containing legal advice from Town Counsel in the course of his official duties as a BOS member.
66. Gillespie forwarded the information to his family members to further his personal interest.
67. The legal advice was within the exemptions to the definition of public records as defined by G.L. c. 4, § 7.
68. Therefore, by forwarding an e-mail containing legal advice from Town Counsel acquired in the course of his official duties to his family members for personal interest, Gillespie improperly disclosed materials or data within the exemptions to the definitions of public records as defined by section seven of chapter four, and were acquired by him in the course of his official duties or used to further his personal interest. In so doing, Gillespie violated § 23(c)(2).

Section 23(b)(3)

69. Section 23(b)(3) of G.L. c. 268A prohibits a municipal employee from knowingly, or with reason to know, acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. The section further provides that it shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.

Participation in Boston Properties c. 40B Proposal

70. By participating as a BOS member in BOS decisions relating to the Boston Properties proposal, while he and his brothers negotiated the sale of the Carter/Gillespie Property to the Developer for an affordable housing development, Gillespie knowingly or with reason to know, acted in a manner which would cause a reasonable person, having knowledge of all the relevant circumstances, to conclude that his family members and/or the Developer could unduly influence or enjoy Gillespie’s favor in the performance of his official duties. Gillespie did not file a disclosure to dispel this appearance of undue influence and favoritism. In so acting, Gillespie violated § 23(b)(3).

Forwarding Correspondence and Information about c. 40B matters

71. By forwarding e-mails he received because of his BOS position to his family members and their attorneys, containing information about opposition and support of the Developer’s 40B proposal involving the Carter/Gillespie Property, as well as information about the details and timing of a new affordable housing proposal on the horizon, Gillespie knowingly or with reason to know, acted in a manner which would cause a reasonable person, having knowledge of all the relevant circumstances, to conclude that his family members could unduly influence or enjoy Gillespie’s favor in the performance of his official duties. Gillespie did not file a disclosure to dispel this appearance of undue influence and favoritism. In so acting, Gillespie violated § 23(b)(3).

Resolution

In view of the foregoing violations of G.L. c. 268A by Gillespie, 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 Gillespie:

(1) that Gillespie pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $8,000 as a civil penalty for violating G.L. c. 268A, §§ 19, 23(b)(2)(ii); 23(c)(2); and 23(b)(3); and

(2) that Gillespie 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, Gillespie acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to the terms and conditions herein.

 

STATE ETHICS COMMISSION

 

^[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.