Settlement  In the Matter of Elliott Burlingame

Date:	04/27/1992
Organization:	State Ethics Commission
Docket Number:	416

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between  the State Ethics Commission (Commission) and Elliot Burlingame (Mr.  Burlingame) pursuant to Section 5 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(j).   

On April 12, 1989, the Commission initiated, pursuant to G.L.  c. 268B, s. 4(a), a preliminary inquiry into possible violations of  the conflict of interest law, G.L. c. 268A, by Mr. Burlingame. The  Commission has concluded its inquiry and, on December 12, 1990, by  a majority vote, found reasonable cause to believe that Mr.  Burlingame violated G.L. c. 268A.   

The Commission and Mr. Burlingame now agree to the following  findings of fact and conclusions of law:   

1. Mr. Burlingame is, and was during the time here relevant,  a builder and developer in Charlton. For several years ending in  May 1988, Mr. Burlingame was also a member and the chairman of the  Charlton Board of Health (Board of Health). As a member and  chairman of the Board of Health, Mr. Burlingame was a municipal  employee as that term is defined in G.L. c. 268A, s. 1(g).   

2. Cynthia B. Cobb (Ms. Cobb) was, during the time here  relevant, the health agent for the Board of Health. As health  agent, Ms. Cobb was a municipal employee as that term is defined in  G.L. c. 268A, s. 1(g). Ms. Cobb resigned as health agent in 1991.   

3. Ms. Cobb was appointed as health agent in late 1985. Mr.  Burlingame participated in Ms. Cobb's hiring as a member and  chairman of the Board of Health. Ms. Cobb's municipal position was  full-time and salaried.   

4. As health agent, Ms. Cobb was responsible for witnessing  percolation tests of land pursuant to Title V of the State Sanitary  Code and the provisions of the Charlton Sanitary Code. Ms. Cobb  also had official responsibility for reviewing septic system plans  submitted to the Board of Health for approval and for making  recommendations to the Board concerning those plans. In addition,  Ms. Cobb as health agent inspected septic systems for compliance  with the approved plans prior to their being covered and also  inspected and signed the occupancy permits for newly constructed  houses on behalf of the Board of Health.   

5. From December 1985 through May 1988, Mr. Burlingame as a  Board of Health member was Ms. Cobb's employer and a supervisor of  her work as health agent. During the same period, Ms. Cobb as  health agent participated in numerous official Board of Health  matters affecting Mr. Burlingame's interests as a developer,  including the review and approval of septic systems designs, the  witnessing of percolation tests and inspection and signing of  occupancy permits for houses constructed in Charlton by Mr.  Burlingame.  

6. In September 1986, Ms. Cobb became a tenant in an apartment  building owned by Mr. Burlingame on Ram's Horn Road in Charlton. In  approximately March 1987, Mr. Burlingame sold the Ram's Horn Road  apartments. In May 1987, Ms. Cobb moved from Ram's Horn Road to an  apartment on Carroll Hill Road in Charlton, not owned by Mr.  Burlingame.   

7. By early 1987, Mr. Burlingame and Ms. Cobb discussed a  "package deal" pursuant to which he would sell her a lot of land  and build her a house for a below market price that she could  afford to pay. By February   

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1987, Mr. Burlingame and Ms. Cobb were actively considering a lot  of land (Lot 12) on Morton Station Road in Charlton owned by Mr.  Burlingame as the potential site for Ms. Cobb's house. By mid-1987,  Mr. Burlingame and Ms. Cobb had a mutual understanding that he  would construct for her and sell to her a house on Lot 12 at a  below-market price that she could afford.   

8. At the time Mr. Burlingame and Ms. Cobb first considered  Lot 12, the lot lacked the road frontage required for a house to be  built on it. On July 28, 1987, Mr. Burlingame purchased Lot A  Morton Station Road (Lot A) to provide the required road frontage  to make Lot 12 buildable. Mr. Burlingame paid $5,000 for Lot A and  agreed to re-roof the lot owner's house as additional payment for  the lot. Mr. Burlingame then combined Lot 12 and Lot A into a  single house lot of approximately 66,706 square feet, designated as  12 Morton Station Road.

9. In January 1988, Mr. Burlingame applied for a building  permit to construct a house at 12 Morton Station Road. Between  January 1988 and June 1988, Mr. Burlingame, his employees and  contractors constructed a two bedroom, one-and-one-half bath cape  style wood frame house at 12 Morton Station Road. The land and  construction costs for the house exceeded $45,000.   

10. On June 24, 1988, Mr. Burlingame transferred ownership of  the 12 Morton Station Road house and land to Ms. Cobb for the  recited consideration of $60,000. In connection with the  transaction, no down payment was made by Ms. Cobb and Mr. Burlingame  provided Ms. Cobb with 100% financing of the purchase price. Mr.  Burlingame retained a $60,000 mortgage on the property at a 10%  annual fixed rate of interest for 30 years. Under the terms of the  mortgage, the mortgage interest is, however, charged only on  $45,000 of the mortgage principal amount; and the agreement between  Mr. Burlingame and Ms. Cobb provides that $15,000 of the $60,000  mortgage principal indebtedness will be forgiven if Ms. Cobb does  not sell the property prior to the year 2008.   

11. At the time Mr. Burlingame transferred ownership of the  house and land at 12 Morton Station Road to Ms. Cobb, the property  was worth substantially more than the purchase price paid by Ms.  Cobb.   

12. Between mid-1987 and mid-1988, Ms. Cobb as health agent  inspected at least twelve new homes in Charlton built by Mr.  Burlingame as a private developer and signed occupancy permits on  behalf of the Board of Health for each of the homes.   

13. 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, having knowledge of the  relevant circumstances, to conclude that any person can unduly  enjoy his favor in the performance of his official duties, or that  he is likely to act or fail to act in his official position as a  result of kinship, rank, position or undue influence of any party  or person.   

14. By, while he was simultaneously a Board of Health member  with supervisory authority over Ms. Cobb and a private developer  subject to Ms. Cobb's official authority as the health agent,  entering into an understanding with Ms. Cobb that he would sell her  a house and land for a below-market price, Mr. Burlingame acted,  knowingly or with reason to know, in a manner which would cause a  reasonable person, having knowledge of the relevant circumstances,  to conclude that he could be unduly influenced by Ms. Cobb and/or  that Ms. Cobb could unduly enjoy his favor in the performance of  his official duties as a member of the Board of Health. In so  doing, Mr. Burlingame violated G.L. c. 268A, s. 23(b)(3).   

In view of the foregoing violation of G.L. c. 268A by Mr.  Burlingame, 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 Mr. Burlingame:   

1. that Mr. Burlingame pay to the Commission the sum of two  thousand dollars ($2,000.00) as a civil penalty for violating  G.L. c. 268A, s. 23(b)(3); and   

2. that Mr. Burlingame 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 proceedings to which the Commission  is or may be a party.    Page 579