Settlement  In the Matter of David E. May

Date:	10/21/1983
Organization:	State Ethics Commission
Docket Number:	213

Disposition Agreement

This Agreement is entered into between the State Ethics Commission ("Commission") and David E. May ("Mr. May") pursuant to Section 11 of the Commission's Enforcement Procedures. This agreement constitutes an assented to final Commission order enforceable in Superior Court pursuant to General Laws Chapter 268B, section 4(d). 

On February 4,1983, 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. May, former Mansfield selectman. The Commission concluded that preliminary inquiry and, on May 24, 1983, found reasonable cause to believe that Mr. May had violated chapter 268A. Adjudicatory proceedings were initiated with the issuance of an Order to Show Cause on June 28,1983. 

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

1. Mr. May was a member of the Mansfield Board of Selectmen from February, 1980 through December, 1982; he was chairman from March, 1981 through February, 1982. As such, he was a "municipal employee" as defined in G.L. c. 268A, s.1(g). 

2. The Mansfield selectmen serve as commissioners of the town's electric department and appoint Mansfield's town manager, the full-time administrator responsible for the operations of all town departments. 

3. Mr. May's wife has been employed by the town since 1977 and, during this time, was a member of the Mansfield Clerks' Association, a collective bargaining unit representing office and clerical employees of various town departments. 

4. On June 10,1981, a contract between the town and the Mansfield Clerks' Association relating to, among other things, hours of employment, salary and other employee benefits came before the selectmen for their approval. Mr. May seconded the motion to approve and then voted to approve this contract. It was approved by the selectmen and, the next day, executed by the town manager and members of the Clerks' Association, including Mr. May's wife.  

5. Section 19 of G.L. c. 268A prohibits a municipal employee from participating as such in a particular matter in which to his knowledge, he or a member of his immediate family has a financial interest.  

6. By seconding the motion and voting to approve a contract between the town and the Clerks' Association of which his wife was a member, Mr. May violated s.19. 

7. During the spring of 1982, the Mansfield Board of Selectmen conducted a search for a new town counsel. Resumes were received by the end of March, 1982, and the selectmen interviewed the various candidates in early May. One of the applicants for the position was John Dwyer, an attorney representing Mr. May's son, a minor, in criminal proceedings. (The proceedings were concluded on April 21, 1982, with a not guilty finding.) 

8. On May 12,1982, the selectmen voted, 3 to 2, to appoint Attorney Dwyer as town counsel. Mr. May participated in the interviewing process and voted to appoint Attorney Dwyer. 

9. At the time the selectmen were engaged in this process of finding and appointing a new town counsel, Attorney Dwyer was representing Mr. May's son and was owed approximately $625 for his services. While Mr. May disclosed that Attorney Dwyer had represented his son, Mr. May did not disclose that his son still owed Attorney Dwyer money. 

10. Sometime after his son was arrested, during the first half of 1982, Mr. May asked the director of Mansfield's electric light department whether Paradise Cleaners, his son's former employer and the complainant in the criminal matter, owed anything on its electric bills. When told that Paradise Cleaner's payments were a little in arrears, Mr. May asked the director if there was anything he could do about that arrearage. 

11. In March, 1982, Mr. May's son received a speeding ticket issued by the Mansfield police. The ticket indicated that the posted speed for Franklin Street, where the violation occurred, was 40 miles per hour. 

12. Mr. May contacted the town manager and told him that a constituent had received a speeding citation from the Mansfield police on Franklin Street and that the ticket was invalid because, in fact, the speed limit sign where the citation had been issued was missing. Mr. May asked the town manager for a letter verifying that fact to be used in the constituent's defense. Mr. May made this request twice and was twice refused. 

Page 162 

13. At the April 7,1983 meeting of the board of selectmen, Mr. May told the selectmen that a Franklin Street resident had requested a listing of speed limit signs on the street because of a citation received on the part of Franklin Street where there was no speed limit sign. Mr. May moved to have the town manager prepare a letter stating where the speed limit signs were placed on Franklin Street and voted in support of that motion. The motion passed. 

14. The town manager wrote a memorandum on the location of speed limit signs on Franklin Street, as the selectmen had directed, and Mr. May gave his son a copy of the memorandum to be used in his defense. The memorandum was in fact not used.  

15. Section 23 (para. 2) (3) of G.L c. 268A forbids a public official from giving reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by the kinship, rank, position or influence of any party or person. 

16. By this course of conduct - (a) as a selectmen, voting to appoint an attorney as town counsel without disclosing that the attorney was still owed money by his son; (b) as a light department commissioner, suggesting that the electric light department director do something about arrearages of a business which had brought a criminal complaint against Mr. May's son; and (c) as a selectmen, twice requesting that the town manager create a memorandum to be used in Mr. May's son's defense of a speeding charge - Mr. May gave reasonable basis for the impression that he, in the performance of these official duties as selectman and electric light department commissioner, was unduly affected by his son's interests, thereby violating s.23 (para. 2) (3) of Chapter 268A. 

17. Pursuant to petitioner's motion to amend, the Commission had dismissed paragraphs 9-12 of the Order to Show Cause relating to the request made by Mr. May of the Mansfield town manager in connection with the police's handling of the prosecution of his son's case. 

Based on the foregoing facts, 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 representations and terms agreed to by Mr. May:

1. That he pay to the Commission the sum of $250.00 as a civil penalty for violating G.L. c. 268A, s.19;  

2. That he pay to the Commission the sum of $250.00 as a civil penalty for violating G.L. c. 268A, s.23 (para. 2) (2); 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.