Settlement  Disposition Agreement in the Matter of John Buckley

Date:	09/17/2020
Organization:	State Ethics Commission
Docket Number:	20-0010
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 John Buckley (“Buckley”) 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 Buckley violated G.L. c. 268A, § 19.

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

 

Findings of Fact

1.            Buckley, 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 approximately seven years.

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

3.            Buckley and his wife own a campground at 2 Peaceful Pines, Templeton. Also, Buckley owns one and his wife the other of two residential properties at 3 and 4 Peaceful Pines. Although all three properties are located in a residential zone, the campground has preexisting non-conforming commercial status. As such, Buckley’s use of the campground property is limited to those related to the original business of a campground.

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 rezoning an area of Patriots Road/Route 2A and an area of Baldwinville Road to increase the Town’s commercial 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 proposed the rezoning of fifty-three properties, including Buckley’s Peaceful Pines properties, in the area of Patriots Road/Route 2A. At all relevant times, Buckley knew that the area proposed for rezoning included his Peaceful Pines campground and residential properties.

6.            Buckley stated at the July 11, 2017 Board meeting that he owned property in the Patriots Road/Route 2A area proposed for rezoning.

7.            Buckley participated as a Planning Board member in the July 11, 2017, rezoning discussion by stating that he supported the proposed rezoning and suggesting that the Board consider proposing “mixed use” zoning as opposed to “highway business” zoning where Patriots Road/Route 2A has some residential homes.

8.            The Planning Board held a public hearing on the proposed rezoning on September 19, 2017. Following the public hearing, Buckley moved to change the zoning of certain parcels on Patriots Road/Route 2A from “Residential” to “Highway Business.” According to the meeting minutes, Buckley voted “yes” on the motion. At the time of the vote, Buckley stated that he owned property in the relevant area. Buckley testified in a sworn interview that he believed he could participate if he disclosed his property ownership.

9.            The proposed rezoning warrant article was put on the agenda for the Town Meeting held on November 14, 2017. The rezoning warrant article did not pass.

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.          Buckley participated as a Planning Board member in the Board’s discussion of the re-submission of the Patriots Road/Route 2A and Baldwinville Road areas rezoning warrant articles to Town Meeting. Buckley proposed that the Board focus on rezoning major arteries with easy access to Route 2 to encourage current and new business.

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, including Buckley, 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.

13.          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. The Board then voted to schedule a public hearing on rezoning only the proposed section of Baldwinville Road. Buckley 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 interest⁴.

15.          As a member of the Planning Board, Buckley 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.          Buckley participated in the rezoning particular matters as a Planning Board member by discussing and voting on the proposals.

18.          Buckley’s wife is his immediate family member.

19.          At the time of his participation as a Planning Board member in the rezoning particular matters, Buckley and his immediate family had to his knowledge a financial interest in the matters because the proposed zoning change would have given him the option to develop his and his wife’s Peaceful Pines properties without being limited to the original business of a campground. Nor would a future purchaser of the properties be limited to development related to the original business of a campground. Therefore, the proposed zoning change would have affected the value of the properties. As a matter of law, Buckley and his wife had a financial interest in zoning changes affecting the use of their properties.⁵

20.          The exemption to § 19 stated in § 19(b)(3)⁶  did not apply because Buckley’s and his wife’s financial interest in the rezoning proposal was not shared with a substantial segment of the population of Templeton.⁷  Therefore, Buckley 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 Buckley, 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 Buckley:

(1)          that Buckley 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 Buckley 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, Buckley 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] “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, Buckley’s and his wife’s financial interest in the rezoning proposal was not shared with a substantial segment of the Town’s population.