Settlement  Disposition Agreement in the Matter of Frank Moschetti

Date:	09/17/2020
Organization:	State Ethics Commission
Docket Number:	20-0011
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 Frank Moschetti (“Moschetti”) 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 Moschetti violated G.L. c. 268A, § 19.

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

Findings of Fact

1.            Moschetti, a resident of the Town of Templeton (“Town”), has served as an elected member of the seven-member Town Planning Board (“Planning Board” or “Board”) for over twenty-five years.

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

3.            Moschetti owns, and at all times here relevant has owned, property on Rice Road in Templeton. The property includes Moschetti’s residence and his septic installation, pumping, and repair business. Although the property is in a residential zone, Moschetti’s septic business has preexisting non-conforming commercial use status. As such, Moschetti’s commercial use of his Rice Road property is limited to those related to the original business of operating a septic company. 

4.            Moschetti’s son also owns, and at all times here relevant owned, property on Rice Road in Templeton which is in a residential area.

5.            On October 12, 2017, Moschetti’s son purchased an automobile storage business property on Baldwinville Road in Templeton. Although the property is in a residential zone, it has preexisting non-conforming commercial use status. As such, Moschetti’s son’s commercial use of his Baldwinville Road property is limited to those related to the original business of automobile storage.

6.            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. 

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

7.            At the July 11, 2017 Planning Board meeting, the Board also discussed proposing the rezoning of fifteen properties, including Moschetti’s son’s automobile storage business property, on Baldwinville Road. At all relevant times, Moschetti knew that the area proposed for rezoning included the Baldwinville Road business property that his son was interested in purchasing and subsequently purchased.

8.            Moschetti participated as a Planning Board member in the Board’s July 11, 2017, rezoning discussion by stating he did not believe that the proposal would encourage additional business because the Town did not enforce zoning laws.

9.            On September 19, 2017, the Planning Board held a public hearing on the two rezoning proposals. Following the public hearing, Moschetti voted “yes” on a motion to change the zoning of certain parcels on Patriots Road/Route 2A from “Residential” to “Highway Business.” At the time of the vote, Moschetti stated that he owned property in the relevant area.

10.          Following the Board’s vote on the motion to change the zoning of certain parcels on Patriots Road/Route 2A, the Planning Board voted on a motion to change the zoning of certain parcels on Baldwinville Road from “Residential” to “Highway Business.”¹  Moschetti voted “yes” on the motion.

11.          The two proposed rezoning warrant articles were put on the agenda for the Town Meeting held on November 14, 2017. The rezoning warrant articles did not pass.

12.          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.

13.          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, including Moschetti, 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 owned property.

14.          After many 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.

15.          Moschetti participated in the November 13, 2018 discussion by stating to the Board that residents had already voted down the proposal to rezone part of Patriots Road/Route 2A.

16.          Following the November 13, 2018 discussion, the Board voted to schedule a public hearing on rezoning only the proposed section of Baldwinville Road. Moschetti voted in favor of proceeding only as to the Baldwinville Road rezoning proposal.

17.          On December 11, 2018, the Board held a public hearing on rezoning the proposed section of Baldwinville Road. Following the public hearing, Moschetti voted in favor of changing the zoning of certain parcels on Baldwinville Road from “Residential” to “Commercial/Industrial.”

18.          The proposed rezoning warrant article was put on the agenda for the Town Meeting held on May 16, 2019. The warrant article passed.

19.          Moschetti testified in a sworn interview that he believed he could participate if he disclosed his property ownership.

Conclusions of Law

Section 19

20.          Section 19 of G.L. c. 268A prohibits a municipal employee from participating² as such an employee in a particular matter³  in which, to his knowledge, he or an immediate family member⁴  has a financial interest⁵.

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

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

23.          Moschetti participated in the rezoning particular matters as a Planning Board member by discussing and voting on the proposals.

24.          Moschetti’s son is his immediate family member.

25.          At the time of his participation as a Planning Board member in the rezoning particular matters, Moschetti and his immediate family had to his knowledge a financial interest in the matters because the proposed Patriots Road/Route 2A and Baldwinville Road area zoning changes would allow greater development opportunities on his and his son’s Rice Road properties and on his son’s Baldwinville Road property. The ability to commercially develop the properties with fewer restrictions would have increased their value for Moschetti and his son and any potential purchasers of the property. As a matter of law, Moschetti and his son had a financial interest in the zoning changes affecting the use of their properties.⁶

26.          The exemption to § 19 stated in § 19(b)(3)⁷  did not apply because Moschetti’s financial interest in the rezoning proposals, and that of his son, was not shared with a substantial segment of the population of Templeton.⁸

27.          Therefore, Moschetti 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 and Baldwinville Road.

Resolution

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

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

 (2)         that Moschetti 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, Moschetti 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

 

^[1] Because the Planning Board did not have the authority to itself change the zoning bylaw, these votes were effectively to submit the rezoning warrant articles to Town Meeting.

^[2] “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).

^[3] “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).

^[4] “Immediate family” means the employee and his spouse, and their parents, children, brothers and sisters.  G.L. c. 268A, § 1(e).

^[5] “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.

^[6] 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."

^[7] 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.

^[8] 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 areas of Patriots Road/Route 2A and Baldwinville Road to be rezoned, Moschetti’s financial interest in the rezoning proposal, and that of his son, was not shared with a substantial segment of the Town’s population.