|Organization:||State Ethics Commission|
Settlement In the Matter of Alfred Welch, III
This disposition agreement ("Agreement") is entered into between the State Ethics Commission ("Commission") and Alfred Welch, Ill ("Mr. Welch") pursuant to section 11 of the Commission's Enforcement Procedures. This agreement constitutes a consented to final Commission order enforceable in the Superior Court pursuant to G.L. c. 268B, s.4(d).
On October 3, 1983, the Commission initiated a preliminary inquiry, pursuant to G.L. c. 268B, s.4(a) into possible violations of the conflict of interest law, G.L. c. 268A, involving Mr. Welch, chairman of the Falmouth Board of Appeals. The Commission has concluded that preliminary inquiry and, on April 17,1984, found reasonable cause to believe that Mr. Welch violated G.L. c. 268A.
The parties now agree to the following findings of fact and conclusions of law:
1. Mr. Welch has been a member of the Falmouth Board of Appeals, which considers and rules on applications for special permits for construction projects, for approximately five years; he has been Board chairman for the last two. As a member of the Board, he is a municipal employee as defined by s.1(g) of G.L. c.268A.
2. Mr. Welch has been in the furniture and floor covering business for 25 years in the Falmouth area.
3. In April, 1982, the Board granted a special permit to the Green Company to develop a parcel of land known as the Boatyard, a 32-unit residential condominium project. Mr. Welch participated as Board chairman in the granting of that permit.
4. In October, 1982, Mr. Welch approached Alan Green ("Mr. Green"), president of Green Company, and expressed his interest in submitting a bid for floor covering at the Boatyard project. Mr. Welch also suggested the possibility of purchasing one of the units for himself. At this time, and through April 4, 1983, Mr. Green's company had no matter pending before Mr. Welch's Board.
5. Mr. Green advised Mr. Welch that he would have his project manager contact him.
6. In January, 1983, Mr. Green's project manager contacted Mr. Welch and invited him to submit bids for the floor covering work.
7. On January 27,1983, Mr. Welch submitted a bid.
8. Sometime prior to March, 1983, Mr. Green's company entered into negotiations with the owner of a parcel of land adjacent to the Boatyard project, with the intention of purchasing and combining this parcel with the existing project. These negotiations resulted in an option to purchase, contingent upon the Board of Appeals granting a special permit for an additional condominium project.
9. In March, 1983, Mr. Welch again discussed with Mr. Green his interest in purchasing a condominium unit and supplying flooring, labor and materials to the Boatyard project. Mr. Green promised to have his project manager contact Mr. Welch. At the end of March, the project manager contacted Mr. Welch and made an appointment to meet with him on April 5.
10. Mr. Welch was unaware of the Green Company's option to purchase the adjoining lot until approximately April 6,1983, when he became aware of the fact that the Green Company had submitted an application for a special permit to develop that parcel.
11. On April 4, 1983, the Green company submitted an application to the Board to develop the parcel of land adjacent to the Boatyard project. The Green Company also sought to amend the Boatyard permit at the time in order to combine the original parcel with the parcel it had the option to purchase.
12. The Board's secretary scheduled a hearing on these matters for April 19, 1983 and notice of the hearing ran in the newspaper on April 5 and 15.
13. On April 5, 1983, Mr. Green's project manager went to Mr. Welch's store. Mr. Welch agreed that his bid may have been high, but stated that his final bid figures were dependent on Mr. Green's price of a condominium unit. The project manager advised that he would refer the matter to Mr. Green and made an appointment with Mr. Welch for April 13, 1983.
14. On April 13, 1983, Mr. Green and the project manager visited Mr. Welch at this store. Messrs. Green and Welch discussed the bid, but Mr. Green indicated that no decision could be made because he had yet to set a price of the condominium units.
15. During this same conversation, Mr. Green and Mr. Welch also discussed the amendment to the Boatyard permit Mr. Green was seeking at the April 19 hearing.
16. On April 19,1983, The Board held a hearing on the permit application for the adjacent parcel and the amendment of the original permit. The applications were taken under advisement, pending a site visit.
17. At the site visit, the board discovered that the existing Boatyard project did not conform to the original plan as submitted by the Green Company. At several hearings in June/July, 1983 relative to the adjacent parcel, Mr. Welch and the board pursued the issue of discrepancies between the original project, as- approved and as-built.
18. On July 12, 1983, while Mr. Welch's bid for the floor covering contract was still pending, the three-member Board, including Mr. Welch, unanimously voted to deny Mr. Green's application for ten units on the adjacent parcel. (Only one vote was required to defeat the application.) Mr. Green had asked the Board to deny the application (rather than approve a lesser number of units) if it was unwilling to grant the full number of units requested in the application.
19. Mr. Welch, as chairman, continued his efforts to have the Town make the Green Company comply with the as-approved plan of the original project. The building commissioner (who is the building enforcement officer for the Town), however, felt that the Green Company was in substantial compliance and decided not to seek any enforcement action. Mr. Welch, after conferring with the Town planner, whose Board also had jurisdiction over the Boatyard project, unsuccessfully sought Town funds from the Board of Selectmen to file an appeal of the building commissioner's Boatyard project decision.
20. Section 23(paragraph 2)(3) of G.L. c. 268A, prohibits a municipal employee from giving reasonable basis for the impression that anyone can improperly influence his official actions.
21. At the April 13,1983 meeting in Mr. Welch's store, when Mr. Welch discussed the bid and the purchase of a condominium unit with Mr. Green at a time when, as they also discussed, Mr. Green had matters pending before Mr. Welch's Board, Mr. Welch gave reasonable basis for the impression that Mr. Green could improperly influence his official actions.
22. Moreover, that Mr. Welch had a bid pending with Mr. Green when Mr. Welch presided over matters of significance to Mr. Green in April-July, 1983, created an impression that his public action may have been unduly affected by his private concerns.
In view of the foregoing violations of G.L. c. 268A, s.23(paragraph 2)(3), the Commission has determined that the public interest would be served by a disposition of this matter without further enforcement proceedings on the basis of the following terms and conditions agreed to by Mr. Welch:
1. that he pay to the Commission the sum of $750 as a civil penalty for violating G.L. c. 268A, s.23(paragraph 2)(3);
2. that in the future he refrain from giving reasonable basis for the impression that he can be unduly influenced in the performance of his official duties; and
3. that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this Agreement or any related administrative or judicial proceeding to which the Commission is a party.