Settlement  In the Matter of David Carignan

Date:	12/27/2000
Organization:	State Ethics Commission
Docket Number:	610

Disposition Agreement

This Disposition Agreement is entered into between the State  Ethics Commission and David Carignan pursuant to Section 5 of the  Commission's Enforcement Procedures. This Agreement constitutes a  consented-to order enforceable in the Superior Court, pursuant to  G.L. c. 268B, s.40).   

On September 23, 1998, the Commission initiated, pursuant to  G.L. c. 268A, s.4(a), a preliminary inquiry into possible  violations of the conflict of interest law, G.L. c. 268A, by  Carignan. The Commission has concluded its inquiry and, on August  23, 2000, found reasonable cause to believe that Carignan violated  G.L. c. 268A, s.23.   

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

1. Carignan is, and was at all times here relevant, the  Falmouth health agent. Carignan was appointed to this full-time,  salaried position by the Falmouth Board of Health ("Board of  Health") in 1982.   

2. In June 1997, Duco Associates, Inc. ("Duco"), foreclosed on  a property (including land and an unfinished house) located at 10  Brantwood Road, Falmouth, as to which Duco was the first mortgagee.  Duco hired a contractor, Margaret Fitzgibbon, who completed the  house. A buyer for the house was found and a closing was scheduled  for September 26, 1997.   

3. Because 10 Brantwood Road was a newly constructed house, a  certificate of occupancy and compliance ("occupancy certificate")  issued by the Falmouth Building Department ("Building Department")  was required to proceed with the closing. An occupancy certificate  for a new house is normally issued by the Building Department after  several municipal departments, including the Board of Health, sign  their approval on the building permit card.   

4. One of Carignan's duties as health agent is to sign, or to  authorize an assistant to sign, building permit cards on behalf of  the Board of Health. Carignan's practice is not to sign, or  authorize the signing of, the building permit card until he has  received an "as-built card" showing the location of the septic  system as installed.[1] According to Carignan, his practice is to  require that the as-built card be prepared by the installer of the  septic system based upon Carignan's understanding of Title 5, the  state code of regulations dealing with septic systems[2] Carignan  has, however, discretion as health agent to deviate from this  practice in appropriate circumstances. For example, Carignan can  (and indeed must under Title 5) accept an as-built card from the  septic system designer in place of one from the installer.   

5. The septic system at 10 Brantwood Road, designed by the  Falmouth engineering firm Ferreira Associates, was installed by  Falmouth excavation contractor and town-licensed septic system  installer Carl F. Cavossa, Jr., pursuant to a March 30,1995 Board  of Health permit. The system was inspected and approved in  compliance with Title 5 by the Board of Health on July 1, 1996,  nearly one year prior to Duco's taking the property by foreclosure.   

6. At the time of the foreclosure, Cavossa had not been paid  for his installation of the septic system at 10 Brantwood Road. The  builder upon whom Duco foreclosed owed Cavossa. several thousand  dollars for the work. Duco, in taking the property by foreclosure,  did not legally owe Cavossa anything for his work at 10 Brantwood  Road.   

7. As of September 1997, no as-built card had been filed with  the Board of Health for the 10 Brantwood Road septic system. Duco's  contractor, Fitzgibbon, attempted to obtain the as-built card from  Cavossa. Fitzgibbon offered Cavossa $500 for the card. Cavossa  refused Fitzgibbon's offer and told Fitzgibbon that he wanted to be  paid what he had lost on the 10 Brantwood Road septic system  installation before he would provide the as-built card.   

8. Because of Cavossa's refusal to provide the as-built card,  Fitzgibbon paid another licensed septic system installer $150 to go  to 10 Brantwood Road, locate the septic system components with the  aid of the original design plans, and prepare a substitute as-built  card.   

9. On September 23, 1997, Fitzgibbon took the substitute  as-built card for the 10 Brantwood Road septic system to the Board  of Health's office. Carignan, however, refused to accept the  substitute as-built card. Fitzgibbon then told Carignan that she  previously had submitted a substitute as-built card for another new  house in Falmouth to the Board of Health under similar  circumstances and the card was accepted. Carignan responded that  the earlier substitute as-built card had been accepted in error and  that he would only accept an as-built card for the 10 Brantwood  Road septic system prepared by the system installer, Cavossa.  Fitzgibbon then told Carignan that she had offered Cavossa $500 for  the card and Cavossa had refused to provide it. Carignan responded  by telling Fitzgibbon that the Board of Health would not sign the  building permit card unless he was provided with an as-built card  from Cavossa.   

10. According to Carignan, after talking with Fitzgibbon he telephoned Cavossa and asked for the as-built card for 10 Brantwood  Road. Cavossa told Carignan that he would not provide the card  because he had not been paid for his work at 10 Brantwood Road.  Carignan took no further action to obtain the as-built card from  Cavossa.   

11. Fitzgibbon reported her conversation with Carignan to  Duco's attorney, Stuart N. Cole. On September 24, 1997, Cole  telephoned Carignan and asked him why the Board of Health had not  signed the building permit card for 10 Brantwood Road so that the  occupancy certificate could be issued by the Building Department.  Carignan responded by stating his position that an as-built card  from the original installer, Cavossa, must be provided to the Board  of Health before the Board would sign off on the issuance of the  occupancy permit. Carignan and Cole then discussed the fact that  Cavossa had not been paid for his work at 10 Brantwood Road and was  refusing to provide the as-built card unless he were paid. Carignan  stated words to the effect that it was unfair and immoral that  Cavossa had not been paid for his work. Cole attempted to explain  to Carignan that Cavossa was not owed payment for his work by Duco,  but by the builder upon whom Duco had foreclosed. The conversation  then ended and Cole informed Fitzgibbon of the conversation's  substance.   

12. Based upon their respective conversations with Carignan,  Fitzgibbon and Cole reasonably understood (a) that Carignan  believed that Duco should compensate Cavossa for his work at 10  Brantwood Road, and (b) that the Board of Health would not sign off  on the issuance of the occupancy permit unless Duco paid Cavossa to  provide the as-built card to the Board[3]   

13. As a result of the above-described conversations between  Carignan and Fitzgibbon and Cole, Cole contacted Cavossa and  subsequently negotiated with Cavossa and Cavossa's attorney to have  Cavossa provide the as-built card in return for Duco's payment of  $2,500, plus Duco's general release of Cavossa from all liability.   

14. On September 26, 1997, Duco paid Cavossa $2,500 and provided  him with the general release. Cavossa then delivered the as-built  card for 10 Brantwood Road to the Board of Health. Carignan  thereupon signed or authorized an assistant to sign the 10  Brantwood Road building permit card on behalf of the Board of  Health. The Building Department then issued the occupancy  certificate for 10 Brantwood Road.   

15. Apart from telephoning Cavossa, Carignan did not take any  action as health agent to assist Duco and its representatives,  Fitzgibbon and Cole, in satisfying Carignan's requirement that a  septic system as-built card for 10 Brantwood Road be submitted to  the Board of Health before the Board would sign the building permit  card. First, Carignan did not offer Fitzgibbon or Cole any way of  obtaining the Board of Health's building permit card sign-off other  than obtaining and submitting an as built card from Cavossa.  Carignan did not, for example, inform Fitzgibbon that he could, in  his discretion as health agent, accept an as-built card from the  engineering firm that had designed the 10 Brantwood Road septic  system.[4] Second, Carignan did not inform Fitzgibbon or Cole that  Duco could appeal Carignan's actions to the Board of Health.[5]  Finally, Carignan did not bring to bear any official pressure on  Cavossa, as a town-licensed septic system installer, to submit the  as-built card to the Board of Health.[6]   

16. As Falmouth health agent, Carignan is a municipal employee  as defined in G.L. c. 268A, s.1. As such, Carignan is subject to  the provisions of the conflict of interest law, G.L. c. 268A.   

17. Section 23(b)(2) of G.L. c. 268A prohibits a municipal  employee from, knowingly or with reason to know, using or  attempting to use his official position to secure for himself or  anyone else unwarranted privileges or exemptions of substantial  value which are not properly available to similarly situated  individuals.   

18. Carignan's above-described actions and failures to act as  health agent, under the then-existing circumstances, caused and  compelled Duco to pay Cavossa money for the 10 Brantwood Road  as-built card that it did not owe. Under the circumstances, and  regardless of his motive in acting and failing to act as he did,  Carignan had reason to know that his conduct as health agent would  force Duco to pay Cavossa money that it did not owe in order to  obtain the as-built card from Cavossa that Carignan insisted the  Board of Health receive before it would sign off on the building  permit for the issuance of the occupancy permit for 10 Brantwood  Road.   

19. Carignan's above-described conduct as health agent in  effect secured for Cavossa a special advantage in Cavossa's  dealings with Duco concerning the amount that Duco would have to  pay Cavossa for the as-built card. This advantage was a privilege  within the meaning of G.L. c. 268A, s.23(b)(2) and was of  substantial value in that it was the leverage that helped Cavossa  obtain from Duco $2,000 more for the as-built card than originally  offered by Fitzgibbon. The advantage was further unwarranted and  not properly available to similarly situated persons because a  private citizen, like Cavossa, does not have any right or other  lawful claim to Carignan's help as health agent in obtaining  payment from any other private citizen, particularly under  circumstances where no payment is legally owed.

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20. Therefore, Carignan, as health agent, by his  above-described conduct, effectively and with reason to know, used  his official position to secure for Cavossa an unwarranted  privilege of substantial value which was not properly available to  similarly situated individuals. In so doing, Carignan violated G.L.  c. 268A, s.23(b)(2).[2]   

21. Section 23(b)(3) of G.L. c. 268A prohibits a municipal  employee from, knowingly or with reason to know, acting in a manner  which would cause a reasonable person, with knowledge of the  relevant circumstances, to conclude that any person can improperly  influence or unduly enjoy the employee's favor in the performance  of the employee's official duties, or that the employee is likely  to act or fail to act as a result of kinship, rank, position or  undue influence of any person or party. Section 23(b)(3) further  provides that the section is not violated if the employee "has  disclosed in writing to his appointing authority ... the facts  which would otherwise lead to such a conclusion."   

22. Carignan, by his above-described actions and omissions as  health agent, which caused and compelled Duco to pay Cavossa $2,500  that it did not owe, acted, with reason to know, in a manner which  would cause a reasonable person, with knowledge of the relevant  circumstances, to conclude that Cavossa could unduly enjoy  Carignan's favor in the performance of his official duties. In so  doing, Carignan violated G.L. c. 268A, s.23(b)(3).[8]   

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

(1) that Carignan pay to the Commission the sum of $1,000 as  a civil penalty for violating G.L. c. 268A; and   

(2) that Carignan waive all rights to contest the findings of  fact, conclusions of law and terms and conditions contained in  this Agreement in this or any other related administrative or  judicial proceeding to which the Commission is or may be a  party.  

[1] The as-built cards required and accepted by Carignan are  typically three by five inch index cards with, on one side, a  diagram of the septic system with distances shown to the house  foundation and, on the other side, the property address, the names  of the installer and the town inspector, the permit number, the lot  number, the septic tank and leaching sizes, the ground water level,  the number of bedrooms, whether there is a disposal, whether there  is town water or a private well, and the date the system was  installed. The as-built cards are not signed.   

[2] Title 5 in fact contains no requirement for the  installer's submission of an as-built card. Title 5 instead  requires that the installer and designer each "certify in writing  on a form approved by the Department that the system has been  constructed in compliance with [Title 5], the approved design plans  and all local requirements, and that any changes to the design  plans have been reflected on as-built plans which have been  submitted to the approving authority by the Designer prior to the  issuance of a Certificate of Compliance" (emphasis added). 310 CMR  15.021(3). According to Carignan, he requires the as-built card  from the installer based upon Title 5's requirement that the septic  system installer make the certification set forth above. The  as-built cards required and accepted by Carignan do not, however,  contain any certification language and, as stated above, are not  signed.   

[3] According to Carignan, he did not intend his statements to  be so understood. The Commission makes no finding as to Carignan's  actual motives, as no such finding is required for the resolution  of his matter.   

[4] As set forth in footnote 1 above, Title 5, to the degree  it requires a septic system "as-built," requires "as-built plans"  submitted by the system designer.   

[5] According to Carignan, although he would normally have  informed Cole and Carignan of Duco's right to appeal his action to  the Board of Health, he did not do so because his conversations  with them were heated and adversarial.  

[6] As the local licensing and permitting authority for septic  system installers (including Cavossa) and septic system  installations, respectively, the Board of Health has the power to  require installers to comply with Title 5 and local regulations,  including the certification equipment of 310 CMR s. 15.021(3)  (which under Carignan's practice was met by the installer's  submission of the as-built card) under threat of possible sanctions  including the loss of license or the denial of further permits to  install septic systems. Thus, Carignan, as health agent, was in a  position to compel Cavossa to provide the board of Health with the  as-built card for 10 Brantwood Road. According to Carignan,  however, he did not see it as part of his role as health agent to  in any way pressure Cavossa to provide the as-built card.   

[7] This is true even if Carignan did not intend to help  Cavossa because Carignan had reason to know that under the  circumstances, his actions and omissions as health agent would have  the effect of helping Cavossa.   

[8] Carignan did not make the disclosure to his appointing authority required to avoid a violation of G.L. c. 268A,  s.23(b)(3).

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