Settlement  Disposition Agreement in the Matter of Kenneth Mitchell, Sr.

Date:	11/18/2021
Organization:	State Ethics Commission
Docket Number:	21-0009
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 Kenneth Mitchell, Sr. (“Mitchell”) 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 February 18, 2021, 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 September 15, 2021, the Commission concluded its inquiry and found reasonable cause to believe that Mitchell violated G.L. c. 268A, §§ 17(c) and 19.

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

Findings of Fact

1. Mitchell, a resident of the Town of Hanson (“Town”), has served as a member of the Town Board of Selectmen (“BOS”) since 2014.
2. In his private capacity, and during the relevant time, Mitchell served as General Manager of Newcomb’s Tree Services, LLC (“Newcomb”).
3. From 2016 through 2019, Mitchell, as Selectman, signed 23 Town warrants authorizing payments to Newcomb for providing tree cutting and removal services to the Town.

Waterline Damage

4. In December 2016, the Town requested that Newcomb remove dead trees from a main road in Town, which required access to private property.
5. The private property owner’s son sent an email to the Town Tree Warden accusing Newcomb of causing damage to a waterline on the property during the tree removal.
6. By email, Mitchell, as Newcomb’s General Manager, asked the Tree Warden to refer the property owner’s son to him [Mitchell] and wrote, “try not to mention my name . . . I may have to have Paul[^[1]] deal with this one because of the conflict of interest but I’ll call him and try first.”
7. In a separate email, Mitchell indicated that he had left messages for the property owner.
8. In March 2017, the Town Water Superintendent sent an email to the Town Administrator asking about Newcomb’s plans to address the waterline damage. The Town Administrator forwarded the email to Mitchell along with a request to sign an agreement regarding the waterline repairs.
9. Mitchell, as Newcomb’s General Manager, responded by email regarding Newcomb’s agreement to have the waterline repaired as follows:

Tell Chip [the Water Superintendent] Newcomb's is going to give him the same courtesy he gave us on Old Pine Drive. They were testing for new wells and he needed tree work done. I called him several times even stop by the water department trying to get someone to meet me over there to show me the scope of work. "Don't worry Kenny I'm not making any decisions right now, you'll get a chance to bid on the job" that was the last time I spoke to the man. 

I'll send it over today and you can forward this email too.

Camp Kiwanee Tree Removal

10. Camp Kiwanee is a 68-acre campground and function venue owned and operated by the Town through its Recreation Commission.

11. At an August 27, 2019 BOS meeting, the Recreation Commission proposed a Town Meeting warrant article to remove trees near the lodge and the beach at Camp Kiwanee (“Camp Kiwanee Tree Removal”). The Town Accountant advised the BOS that the work would cost.

12. At the October 7, 2019 Special Town Meeting, a member of the BOS moved to have Town Meeting vote on the warrant article in the amount of $25,000 for the Camp Kiwanee Tree Removal. Mitchell, as a BOS member, seconded the motion.
13. At the time Mitchell, as a Selectman, (1) made the motion to place a warrant article on the October 2019 Special Town Meeting warrant for the Camp Kiwanee Tree Removal and voted on it, and (2) seconded the motion to have Town Meeting vote on the warrant article in the amount of $25,000, Mitchell knew it was likely that the Town would hire Newcomb to perform the tree work.

Conclusions of Law

§ 17(c)

14. Section 17(c) of G.L. c. 268A prohibits a municipal employee from otherwise than in the proper discharge of his official duties acting as agent for anyone other than the municipality in connection with a particular matter^[2] in which the municipality is a party or has a direct and substantial interest.
15. The decisions as to who would address the waterline damage and how the damage would be addressed were particular matters in which the Town had a direct and substantial interest because the damage allegedly occurred while Newcomb was performing tree removal work on behalf of the Town.
16. By representing Newcomb as its General Manager in communications with the Town and with the private property owner regarding the waterline damage, Mitchell acted as agent for someone other than the Town in connection with a particular matter in which the Town had a direct and substantial interest.
17. Representing and acting as Newcomb’s agent regarding the waterline damage was not in the proper discharge of Mitchell’s official duties as a Selectman.
18. Therefore, Mitchell violated § 17(c) by acting as agent for Newcomb, which was not otherwise in the proper discharge of Mitchell’s official duties as a Selectman, in a particular matter in which the Town had a direct and substantial interest.

§ 19

19. Except as otherwise permitted,^[3] § 19 of G.L. c. 268A prohibits a municipal employee from participating^[4] as such an employee in a particular matter in which, to his knowledge, he or a business organization by which he is employed, has a financial interest.^[5]

Signing Town Warrants Authorizing Payments to Newcomb

20. Newcomb is a business organization because it provides tree cutting and removal services for a fee.
21. Mitchell was at all times here relevant employed by Newcomb as its General Manager.
22. The decision to approve Town warrants authorizing payments to Newcomb were particular matters in which Newcomb had a financial interest.
23. Mitchell participated in those particular matters as a Selectman by repeatedly signing Town warrants containing payments to Newcomb.
24. At the time of his participation, Mitchell knew that Newcomb had a financial interest in the approval of the Town warrants containing payments to Newcomb.
25. By, as a Selectman, repeatedly signing Town warrants authorizing payments to his employer Newcomb, Mitchell violated § 19 by participating in particular matters in which, to his knowledge, the business organization by which he was employed had a financial interest.

Participating in the Camp Kiwanee Tree Removal

26. The decision to remove trees at Camp Kiwanee was a particular matter.
27. Mitchell participated in that particular matter as a Selectman by (1) making a motion to place an article on the October 2019 Special Town Meeting warrant regarding the Camp Kiwanee Tree Removal; (2) voting in favor of his motion, and (3) seconding a motion to have Town Meeting vote on the warrant article in the amount of $25,000.
28. At the time of his participation, Mitchell knew that Newcomb had a financial interest in the Camp Kiwanee Tree Removal because he knew it was likely that the Town would hire Newcomb to perform the work.
29. By, as a Selectman, participating in the decision on the Camp Kiwanee Tree Removal, Mitchell participated in a particular matter in which, to his knowledge, the business organization by which he was employed had a financial interest. Thus, Mitchell violated § 19.

 

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

(1)       that Mitchell 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, §§ 17(c) and 19; and

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

 

 

^[1]  Paul Newcomb is owner of Newcomb and Mitchell’s brother-in-law.

^[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] 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] “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.