• This page, Disposition Agreement in the Matter of Erik Fleming, is   offered by
  • State Ethics Commission
Settlement

Settlement  Disposition Agreement in the Matter of Erik Fleming

Date: 11/09/2021
Organization: State Ethics Commission
Docket Number: 21-0006
Referenced Sources: G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Table of Contents

Disposition Agreement

The State Ethics Commission (“Commission”) and Erik Fleming (“Fleming”) 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 25, 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 July 29, 2021, the Commission concluded its inquiry and found reasonable cause to believe that Fleming violated G.L. c. 268A, § 19.

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

Findings of Fact

  1. Fleming, a resident of Hardwick, was at all relevant times an elected uncompensated member of the Town of Hardwick Planning Board. Fleming has served on the Planning Board for over twenty years.
  2. In his private capacity, Fleming is a volunteer trustee of the Eagle Hill School, a private non-profit college preparatory school located in Hardwick for students with diverse learning profiles and learning disabilities. As a member of the Board of Trustees, Fleming advises the Board on new construction and renovations at Eagle Hill School.
  3. On April 9, 2018, Eagle Hill School filed an application for site plan approval to construct a new STEM1 building on its campus.
  4. Under the Town of Hardwick Zoning Ordinance (“Zoning Ordinance”), site plan approval is a prerequisite to obtaining a building permit for new construction.
  5. The Zoning Ordinance requires the Planning Board to open a public hearing on an application for site plan approval within forty-five days of the filing of the application and requires the Planning Board to deliver its written decision within sixty days of the receipt of the application.
  6. According to Fleming, he believed that site plan approval required a super majority vote of a quorum of the Planning Board. If so, he was mistaken in his belief.
  7. Site plan approval requires a simple majority vote of a quorum of the Planning Board. A quorum of the Planning Board is three of its five members.
  8. On May 14, 2018, Fleming sought advice from the Legal Division of the State Ethics Commission as to whether he could participate as a member of the Planning Board in its review of Eagle Hill School’s site plan for its new STEM building.
  9. The Legal Division advised Fleming that he was prohibited from participating as a member of the Planning Board in its review of Eagle Hill School’s site plan and, because he was an elected official, no disclosure by him was possible to allow his participation in that review. The Legal Division further advised Fleming that he should abstain entirely from the Planning Board’s review of Eagle Hill School’s site plan.
  1. The same day Fleming received advice from the Legal Division, he filed a § 23(b)(3) disclosure form2 with the Hardwick Town Clerk disclosing his relationship to Eagle Hill School and indicating that “if necessary” he would vote as a Planning Board member on Eagle Hill School’s site plan.
  2. On May 15, 2018, the Planning Board opened a public hearing on Eagle Hill School’s application for site plan approval for its new STEM building. There were four Planning Board members present, including Fleming.
  3. At the May 15, 2018 Planning Board public hearing, Fleming disclosed his relationship to Eagle Hill School and erroneously invoked the Rule of Necessity. Fleming then participated as a Planning Board member in the board’s discussion concerning the site plan for Eagle Hill School’s new STEM building. The Planning Board continued this discussion at a June 12, 2018 public hearing, at which five Planning Board members, including Fleming, were present, and Fleming again participated in the discussion as a Planning Board member.
  4. At the June 12, 2018 public hearing, Fleming voted to approve the site plan for Eagle Hill School’s new STEM building. The Planning Board’s vote to approve the site plan was unanimous. Fleming thereafter signed the Planning Board’s written decision approving the site plan. 
 
   

Conclusions of Law

  1. Except as otherwise permitted,3 § 19 of G.L. c. 268A prohibits a municipal employee from participating4 as such an employee in a particular matter5 in which, to his knowledge, he or a business organization6 in which he is serving as officer, director, trustee, partner or employee has a financial interest.7
  2. As a Planning Board member, Fleming is a municipal employee as that term is defined by G.L. c. 268A, § 1(g).
  3. Eagle Hill School, a non-profit organization, is a business organization because it provides educational services for a fee.
  4. Fleming is a volunteer uncompensated trustee of Eagle Hill School.

 

 

 
   
  1. Eagle Hill School’s application for site plan approval was a particular matter.
  2. Fleming participated in the site plan approval through discussing, voting on and signing the written site plan approval decision as a Planning Board member.
  3. Eagle Hill School had a financial interest in the site plan approval because it affected the use of its property and was a prerequisite to securing a building permit to construct the STEM building.
  4. Fleming knew Eagle Hill School had a financial interest in the site plan approval because as a trustee he advises the Board on new construction and renovations at Eagle Hill School.
  5. Therefore, by participating as a Planning Board member in Eagle Hill School’s site plan approval while serving as a volunteer trustee of Eagle Hill School, Fleming violated § 19.
  6. The “Rule of Necessity” may be used to permit an elected board member to participate in a matter, in which the member would otherwise be barred by the conflict of interest law from participating, only when the elected board is legally required to act on a matter, but lacks enough members for a quorum to take valid official action, solely due to members being disqualified by conflicts of interest from participating in the matter. Commission Advisory 05-05.
  7. The Rule of Necessity was unavailable to Fleming to permit him to participate in the Planning Board’s review of the Eagle Hill School site plan on May 15 and June 12, 2018, because: (1) on May 15 and June 12, 2018, the Planning Board had a quorum of at least three members without Fleming and was, thus, able to act on the Eagle Hill School matter without him ; and (2) the Planning Board was not required to act on May 15, 2018 because that date was less than forty-five days after Eagle Hill School had filed its application for site plan approval for its new STEM building.

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

( 1)  that Erik Fleming pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $5,000 as a civil penalty for violating G.L. c. 268A, § 19; and

(2) that Erik Fleming 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, Erik Fleming acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to all of its terms and conditions.

1 Science, technology, engineering and mathematics.

2 A section 23(b)(3) disclosure form is properly used to disclose an appearance of a conflict of interest. A § 23 disclosure does not permit action in violation of any other section of the conflict of interest law, such as § 19 discussed infra.

 

3 None of the exemptions applies.

4 “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).

5 “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).

6 A nonprofit organization is a business organization for conflict of interest purposes if it provides services for a fee. See EC-COI-07-02 (nonprofit that substantially conducts business activities is a “business organization” for conflict of interest purposes).

7 “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 may be positive or negative. EC-COI-84-96.

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