Settlement  In the Matter of Donald Sommer

Date:	10/01/1984
Organization:	State Ethics Commission
Docket Number:	266

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Donald Sommer (Mr.
Sommer) pursuant to section 11 of the Commission's Enforcement
Procedures. The Agreement constitutes a consented to final order
of the Commission enforceable in superior court under G.L. c. 268B,
s.4(d).

On October 3, 1983, the Commission initiated a preliminary
inquiry into possible violations of G.L. c. 268A by Mr. Sommer,
regional special education director for the state Department of
Education (DOE). The Commission concluded that preliminary inquiry
and has found reasonable cause to believe that Mr. Sommer violated
chapter 268A.

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

Findings of Fact

1. Mr. Sommer is the regional special education director for
the DOE. As such, he is a state employee, as that term is defined
in G.L. c. 268A, s.1(q).

2. As regional special education director, Mr. Sommer is
responsible for the oversight and nation of private special
education schools; he supervised the other special education staff
members in the Pittsfield office and designated one to act as
chairman of the Pittsfield Regional Review Board (PRRB). (
Until July 6, 1983, the PRRB was responsible for inspecting for
approval purposes and monitoring special education schools. At the
time, such responsibility was transferred to DOE's West Springfield
regional office.) Mr. Sommer routinely participated in PRRB
activities by, among other things, providing advice and assistance
to the PRRB on approval issues.

3. In early 1983, the Plunkett Memorial Hospital (Hospital) of
Adams, Massachusetts was offered for sale.

4. In early February 1983, Mr. Sommer inspected the Hospital
site to determine its suitability for several possible uses, chief
among which was use as a special education school.

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5. Mr. Sommer made this inspection after discussing the property
with James Pieri (Mr. Pieri), a Northampton attorney with whom Mr.
Sommer was friends. Mr. Pieri and Mr. Sommer discussed putting
together a group of investors to purchase the property. They also
discussed establishing a special education school on the site.

6. Based on Mr. Sommer's inspection of the Hospital, Mr. Pieri
decided to make an offer to purchase the property. Mr. Sommer
called the real estate broker and outlined the terms of the offer
Mr. Pieri would be submitting.

7. Mr. Sommer then wrote a check dated February 8, 1983, to Mr.
Pieri in the amount of $10,000. This money was immediately
deposited, into Mr. Pieri's client trust fund account. On February
8, 1983, Mr. Pieri submitted a written offer to purchase the
property and secured it with a check, also dated February 8,1983,
for $10,000. This check was drawn on his client's trust fund
account. Mr. Pieri signed the offer as the attorney for
unidentified buyers.

8. The sellers accepted Mr. Pieri's offer.

9. In the months that followed the offer, Mr. Sommer:

(a) had a number of discussions with Mr. Pieri about
establishing a special education school on the site and
securing other investors for the project;

(b) helped to identify potential investors and contact
them about the project;

(c) prepared a budget outline for the proposed school;

(d) located, recruited and interviewed Wayne Smith (Dr.
Smith), the person hired to be the school's executive
director; and

(e) met with people involved in the project to discuss
the application process the school was required to complete
to be licensed by the state.

10. The application for the Cana School (Cana), as the school
on the Hospital site was to be named, was submitted to DOE in late
June 1983 to be included on the agenda for the July 5, 1983
meeting. The application was not complete. Despite this, a meeting
of the PRRB to review and approve the application and to visit the
site was arranged for July 5, 1983.

11. Mr. Sommer met with a Pittsfield regional office staff
member whom Mr. Sommer had recently appointed to chair the PRRB,
and suggested to him that the PRRB might give Cana a "contingent
temporary approval" despite the fact that the application was
incomplete. This "contingent temporary approval" would then allow
Cana to apply to the state Rate Setting Commission for approval,
according to Mr. Sommer.

12. On July 2, 1983, Mr. Sommer explained to Dr. Smith what
needed to be done to prepare for the July 5th site visit by the
PRRB.

13. On July 3, 1983, Mr. Sommer went to the Cana school and met
the Cana cleanup crew which was preparing the facility for the
upcoming PRRB site visit.

14. On July 5, 1983, the PRRB, chaired by a subordinate
employee, met to consider Cana's application and to visit the site.
Although there were questions about whether a quorum was present,
and although some of the local permits that are a prerequisite to
approval were lacking, the PRRB granted Cana contingent
temporary approval. (Mr. Sommer did not attend this meeting.)

15. Soon after the July 5 meeting, DOE transferred responsibility
for the special education schools in the Pittsfield region to the
West Springfield regional office, and Cana's contingent temporary
approval was rescinded.

Conclusions of Law

16. G.L. c. 268A, s.4(c) prohibits a state employee from acting
as agent for a private party in connection with a particular matter
in which the state has a direct and substantial interest. The
establishing and licensing of a special education school is a
matter of direct and substantial interest to the state.
Accordingly, Mr. Sommer violated s.4(c) when he acted as Cana's
agent by: evaluating the Hospital site for a special education
school use; seeking out potential investors and discussing the
project with them; locating, recruiting and interviewing Dr. Smith
and a consultant; reviewing the budget and other components of the
approval application Dr. Smith was preparing; instructing Dr. Smith
on what is needed to be done for the PRRB site visit and making
arrangements to have it done before the visit; and suggesting the
concept of contingent temporary approval to the chairman of the
PRRB.

17. Mr. Sommer's private dealings with the Cana project occurred
when matters concerning the project were pending before his agency
or when it was reasonably foreseeable that matters concerning the
project would be pending before his agency in the near future.

18. By having substantial official and private dealings with
the Cana project at the same time, Mr. Sommer gave reasonable basis
for the impression that those involved with Cana could improperly
influence him or unduly enjoy his favor, in violation of
s.23(paragraph 2)(3).

Resolution

Based on the foregoing, the Commission has determined that the
public interest would be served by the disposition of this matter
without further Commission

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enforcement proceedings on the basis of the following terms, to
which Mr. Sommer has agreed:

(a) that he pay to the Commission the sum of $2,000
forthwith as a civil penalty for violating G.L. c. 268A,
s.4(c), by acting as agent for the special education school
project, a particular matter in which the state had a direct
and substantial interest;

(b) that he pay to the Commission the sum of $1,000
forthwith as a civil penalty for violating G.L. c. 268A,
s.23(paragraph 2)(3), by his substantial private involvement
in a project over which he had official regulatory authority
and which was pending in his agency conduct which gave
reasonable basis for the impression that Cana could improperly
influence him and unduly enjoy Mr. Sommer's favor in his
performance of his official duties;

(c) that he agree to dispose of any Investment interest
in Cana or the Hospital project that he may currently have and
refrain from reinvesting in or working for Cana or any other
entity in connection with the special needs school for a
period of five(5) years from the date of this Agreement; and

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