Settlement  Disposition Agreement in the Matter of Fayette Mong

Date:	10/23/2019
Organization:	State Ethics Commission
Docket Number:	19-0012

Introduction

The State Ethics Commission (“Commission”) and Fayette Mong (“Mong”) enter into this Disposition Agreement pursuant to Section 5 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 November 27, 2017, 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, by Mong. On May 16, 2019, the Commission concluded its inquiry and found reasonable cause to believe that Mong violated G.L. c. 268A, § 23(b)(2)(ii).

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

Findings of Fact

1.  Mong was admitted to the Massachusetts Bar in 2008.

2.  At all times relevant, Mong was an attorney employed in the Office of Prosecutions of the Division of Professional Licensure (“DPL”).

3.  DPL oversees twenty-eight boards of registration, including the Board of State Examiners of Plumbers and Gas Fitters and the Board of State Examiners of Electricians.

4.  DPL has an Office of Investigations and an Office of Prosecutions. The Office of Investigations investigates complaints regarding licensees of the twenty-eight boards of registration. When warranted, the Office of Prosecutions prosecutes these matters.

5.  Attorneys in DPL’s Office of Prosecutions negotiate agreed-upon disciplinary outcomes and litigate all hearings, including adjudicatory and sanctions hearings, and are ultimately responsible for resolving complaints.

6.  In July 2017, Mong wished to purchase a house in Braintree (“the House”).  At the time, Mong was on maternity leave from her position at the DPL. 

7.  On July 12, 2017, Mong made an offer to purchase the House which was accepted on July 13.  The offer was contingent upon, among other things, a satisfactory property inspection and a mutually agreed upon purchase and sale agreement by July 21, 2017.  The offer provided for Mong to have the House inspected on or before July 26, 2017 and gave Mong the option of revoking the agreement on or before July 31, 2017, if the property inspection revealed “serious structural, mechanical or other defects and if the repair of such defects would cost [Mong]… more than $1,000.”

8.  On July 15, 2017, Mong had the House inspected by a private home inspector.  The inspector identified certain electrical and plumbing issues and recommended additional investigation by a licensed electrician and a licensed plumber.

9.  The seller agreed to have certain electrical and plumbing issues repaired by July 31, 2017.

10.  The parties extended the time to enter into a purchase and sale agreement beyond July 21, 2017 and continued to negotiate the terms of that agreement.  As of July 30, 2017, Mong was trying to negotiate a purchase and sale agreement that would include several contingencies requiring the seller to make at seller’s expense specific electrical, plumbing, HVAC and other repairs before the conveyance of the property to Mong.

11.  The Town of Braintree (“Town” or “Braintree”) Building Division ("Building Division") is responsible for the enforcement of the Town’s zoning ordinances and local and state codes related to construction on, or the development, redevelopment or use of real estate in Braintree.

12.  In July 2017, Andrew Lyne (“Lyne”) was the Braintree Gas Inspector. At that time, Lyne held an active license with the Board of State Examiners of Plumbers and Gas Fitters.

13.  On July 20, 2017, at 8:48 a.m., Mong spoke by telephone with Lyne. During the conversation,

    a.  Mong identified herself as a prosecutor for DPL;

    b.  Mong stated that she was interested in purchasing the House; and

    c.  Mong told Lyne that she was concerned that the House had undergone gas and/or plumbing work without the appropriate permits.

14.  In July 2017, Gerald Graham (“Graham”) was the Braintree Inspector of Wires. At that time, Graham held an active license with the Board of State Examiners of Electricians.

15.  On July 20, 2017, Mong left a voicemail for Graham regarding the House. In the voicemail, she identified herself as a prosecutor for DPL.

16.  On July 27, 2017, Mong and Lyne spoke by telephone.  They discussed arranging a time for several Building Division inspectors to visit the House.  Lyne told Mong that the inspectors had agreed to inspect the House and he asked Mong to pick a date. Mong chose July 31, 2017.

17.  In July 2017, Russell Forsberg (“Forsberg”) was the Braintree Inspector of Buildings and Code Compliance Officer and held an active license with the Board of State Examiners of Electricians.

18.  On Sunday, July 30, 2017, at 10:54 p.m., Mong sent an email to Lyne, Graham and Forsberg entitled, “[address of the House], Braintree, Ma code compliance.”  The email began, “I’m the prosecutor from the Division of Professional Licensure meeting you at 10 am Monday morning [July 31].”

19.  In the July 30th email, Mong described many issues with the House and work she believed had been performed without permit or inspection.

20.  In the July 30th email, Mong stated that her goal in obtaining an official inspection was to have all of the House’s wiring, plumbing, gas, HVAC systems permitted, inspected, and fully up to code prior to the conveyance of the property to her.

21.  The identification of all of the House’s building code deficiencies on July 31, 2017 would have substantially aided Mong in negotiating to have the seller agree in the purchase and sale agreement to make all repairs to the House required to bring it fully up to code at the seller’s expense prior to the conveyance of the property, or to lower the selling price, prior to the expiration of Mong’s option to revoke the agreement.

22.  On July 31, 2017, Marybeth McGrath, the Town of Braintree Director of Municipal Licenses & Inspection, contacted the owner of the House who told McGrath that she did not give her permission for Town inspectors to enter the House.

23.  Given that Building Division requires permission from the current property owner in order to inspect a property, McGrath informed Mong, via email, that without the owner’s permission, the Building Division inspectors would not inspect the House.

24.  After receiving McGrath’s email, Mong called Graham and left a voicemail for him regarding the inspection of the House.  In the voicemail, Mong identified herself as “Fayette Mong, the prosecutor for the DPL,” and expressed alarm that the inspectors were not coming to inspect the House, and asked Graham to call her back and let her know whether he was coming or not. Graham did not call Mong back.

25.  Mong contacted the owner of the House and asked her to contact the Building Division and provide permission for the Building Division inspectors to enter the House.

26.  The owner of the House informed Mong that it would be more appropriate for Mong to bring her private inspector back to the House.  Mong did not do so.

27.  On the afternoon of July 31, 2017, Mong’s realtor informed the seller that Mong was not moving forward with the purchase, thus terminating the agreement.

Conclusions of Law

28.  Section 23(b)(2)(ii) of G.L. c. 268A prohibits public employee from, knowingly, or with reason to know, using or attempting to use her official position to secure for herself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.

29.  As a DPL prosecutor, Mong was a state employee as defined in G.L. c. 268A, § 1(q).

30.  Mong, knowingly, or with reason to know, used her official position when she sought to arrange for Town of Braintree inspectors to inspect a house that she wished to privately purchase by repeatedly identifying herself as a prosecutor for DPL in her spoken and written communications with the Building Division.

31.  Mong’s use of her DPL position in connection her request for Town inspections of a house she wished to privately purchase was without legal basis or justification and, thus, unwarranted.  The requested inspections were wholly unrelated to Mong’s public duties.  When she made the request, Mong should have been aware that her repeated invocation of her DPL prosecutor position created the risk that the Building Division would be unduly influenced by her official position in its response to her request for the inspections.

32.  Had her request to the Building Division for the July 31, 2017 inspections of the House been honored, Mong would have secured inspections performed by licensed professionals, with the authority of the Building Division to enforce code compliance, at a time when the inspections and the identification of code issues very likely would have been highly advantageous to Mong in her negotiation of the purchase and sale agreement with the seller.

33.  No similarly situated prospective homebuyers could properly invoke their public positions in requesting municipal inspections in order to expedite and ensure the occurrence of the inspections at a time that would benefit their bargaining position in the purchase of a house.

34.  Official inspections by the Building Division on July 31, 2017 as requested by Mong would have been of substantial value to her.  If code violations had been identified, the owner of the house would have been legally required to remedy them, which would have given Mong significant leverage in her negotiation of the purchase and sale agreement and very likely would  have greatly aided her in accomplishing her goal of having the House brought fully up to code at the seller’s expense before the conveyance of the property to her,  or, alternatively, could have resulted in the lowering of the purchase price paid by Mong.  Even if the Town inspectors had not found code violations, Mong would have had greater peace of mind when purchasing the House, which would have been of substantial value to her.  In either case, the benefit to Mong would have been worth $50 or more.

35.  Accordingly, Mong’s use of her DPL position to try to ensure that the House was inspected by three municipal inspectors on July 31, 2017 was the use of that position to attempt to secure for herself an unwarranted privilege of substantial value.

36.  Thus, by invoking her position as a prosecutor at DPL with the Building Department, Mong, knowingly, or with reason to know, used her official position to attempt to secure for herself an unwarranted privilege of substantial value which was not properly available to similarly situated individuals. In so doing, Mong violated G. L. c. 268A, § 23(b)(2)(ii).

Resolution

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

(1)  that Mong pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $2,500 as a civil penalty for violating G.L. c. 268A, § 23(b)(2)(ii); and

(2)  that Mong 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, Fayette Mong acknowledges that she has personally read this Disposition Agreement, that it is a public document, and that she agrees to all terms and conditions therein.