Settlement  In the Matter of Erland S. Townsend, Jr.

Date:	11/13/1986
Organization:	State Ethics Commission
Docket Number:	314

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Erland S. Townsend,Jr. (Mr. Townsend) 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(j). 

On April 2,1985, 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. Townsend, the co-chairman of the Swampscott Conservation Commission. The Commission concluded that preliminary inquiry, and, on May 14, 1985, found reasonable cause to believe that Mr. Townsend violated G.L. c. 268A. 

This matter was suspended by the Commission as a result of the July 9, 1985 decision of the Supreme Judicial Court in Saccone v. State Ethics Commission, 395 Mass. 326. Legislation restoring the Commission's full enforcement powers over all violations of G.L. c. 268A went into effect on April 8,1986.  The parties now agree to the following findings of fact and conclusions of law: 

1. Mr. Townsend became a member of the Swampscott Conservation Commission on October 17,1983. All members of the Conservation Commission were previously classified as special municipal employees pursuant to G.L. c. 268A, s.1(n). 

2. The chairman of the Conservation Commission, Esther Ewing, now deceased, had requested Mr. Townsend to become a member because of his expertise. On March 27, 1985, when first contacted by the Commission, Mr. Townsend resigned as a member of the Conservation Commission. 

3. At all times relevant hereto, Mr. Townsend was also an engineer engaged in a private consulting engineer practice with T&M Engineering, Inc., in Salem. 

4. On October 18,1983, T&M Engineering, Inc., through Mr. Townsend's partner, submitted a proposal to Charing Cross Corporation, which was accepted on October 28,1983, whereby T&M Engineering, Inc. was to be site engineer for a condominium project to be developed by Charing Cross in Swampscott called "The Glen." 

5. In April, 1984, Mr. Townsend, as the site engineer, prepared an environmental impact statement (EIS) for Charing Cross for "The Glen." As required by local rules, Mr. Townsend, as site engineer, co-signed the cover letter submitting the EIS to the Swampscott Zoning Board of Appeals, with informational copies to the Conservation Commission, the Board of Health and other boards and commissions in the town of Swampscott. 

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6. Mr. Townsend was elected co-chairman of the Swampscott Conservation Commission on May 22, 1984. The minutes of that meeting indicate that Mr. Townsend agreed to serve "as long as it was understood that he would step down when his firm, T&M Engineering Assoc., Inc., has work before the Commission." 

7. At a meeting on June 28, 1984, the Conservation Commission discussed the EIS regarding "The Glen." The minutes of this meeting state that Mr. Townsend did not enter into the discussion because he was the site engineer for the project. He disqualified himself and left the table. Mr. Townsend's co-chairman objected to parts of the proposed plans for "The Glen," and it was decided that she would write to the Board of Appeals on behalf of the Conservation Commission to voice the objections. This letter is date July 10,1984 and raises three areas of concern: (1) drainage problems; (2) landscaping; and (3) the sewage system. The Conservation Commission sent a copy of the July 10, 1984 letter to the Board of Health. 

8. On July 12,1984, Mr. Townsend wrote as site engineer for "The Glen" to the Swampscott Board of Public Works, regarding the concerns raised in the Conservation Commission's July 10, 1984 letter to the Board of Appeals as to the capacity of the town's sewer system and waste water treatment facility to handle the proposed new construction. He sent a copy of his July 12,1984 letter to the Conservation Commission as well as to the Board of Appeals and the Board of Health. In this letter Mr. Townsend gave his professional opinion that the 60 new units would have "minimal" impact on the town's systems. At the Board of Public Works meeting in late July, the Board considered Mr. Townsend's letter and decided that estimated maximum daily sewage flow from the project would not unduly impact the system. 

9. At a July 17,1984 Board of Health meeting, at which Martin Goldman, attorney for "The Glen" developers, made a presentation, Mr. Townsend answered questions as site engineer for "The Glen," assuring the Board of Health that the drainage system (one of the items questioned in the Conservation Commission's July 10,1984 letter) would be installed to the satisfaction of the Board of Health. By letter dated the same day, the Board of Health withdrew its objections to "The Glen," which had been raised in a July 5, 1984 letter to the Board of Appeals. 

10. At the July 24,1984 Conservation Commission meeting, in response to a question from co-chairman Ewing, Mr. Townsend spoke (as the site engineer for "The Glen," according to the minutes), expressing his displeasure with the Commission's July 10,1984 "emotional" letter to the Board of Appeals, especially the objections regarding increase in sewage. 

11. Mr. Townsend as site engineer prepared and signed (as required by local rules) a Request for Determination of Applicability of the Massachusetts Wetlands Protection Act ("Request for Determination") regarding a proposal to store fill and set a trailer on the site of "The Glen" project. On November 6,1984, he filed this request with the Conservation Commission and with the Commonwealth's Department of Environmental Quality Engineering, as required. 

12. The Conservation Commission's hearing on the Request for Determination took place on November 20, 1984. The minutes read: "Erland Townsend stepped off the Commission because of the conflict of interest." The Commission unanimously voted that the Wetlands Protection Act did not apply to the proposal to store fill and set a trailer on the land. 

13. Mr. Townsend prepared a Notice of Intent under the Massachusetts Wetlands Protection Act ("Notice of Intent") to begin the new construction, prepared the various site plans and layouts submitted with the Notice of Intent and filed this Notice of Intent with the Conservation Commission on November 9, 1984. On November 29,1984, the Conservation Commission held a hearing on this Notice of Intent. At this meeting, Mr. Townsend disqualified himself from the Conservation Commission and spoke from the audience in response to questions from co-chairman Ewing regarding the project. Townsend did not participate in the Conservation Commission's deliberations or in the writing of the Order of Conditions issued December 6, 1984 in response to the Notice of Intent. The Order of Conditions refers to plans for "The Glen" signed and stamped by Mr. Townsend as site engineer. 

14. Mr. Townsend received compensation, through his salary from T&M Engineering, Inc., from Charring Cross for his work on "The Glen" project, including: (1) the preparation and filing of the EIS in April, 1984; (2) his defense of the proposed project (against concerns raised by the Conservation Commission's letter of July 10,1984) before the Board of Public Works, the Board of Health and the Conservation Commission itself in July 1984; (3) the preparation and filing on November 9, 1984 of the Request for Determination; and (4) the preparation of the Notice of Intent (and supporting documents) and responding to questions regarding this Notice of Intent at the November 29,1984 Conservation Commission hearing (speaking as site engineer. not as a board member). 

15. General Laws c. 268A, s. 17 prohibits a special municipal employee, otherwise than in the proper discharge of his official duties, from directly or indirectly receiving compensation from a private party (s.17(a)) or acting as agent for a private party (s.17(c)) in connection with any particular matter in which his town has a direct and substantial interest, and in which he has participated, or which is or within one year has been the subject of his official responsibility, or, if he serves more than 60 days per year, which is pending in the municipal agency in which he is now serving. 

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16. The EIS, the Conservation Commission's July 10,1984 letter to the Board of Appeals, the Request for Determination and the Notice of Intent were particular matters, as defined by G.L. c. 268A, s.1(k), which were the subjects of Mr. Townsend's official responsibilities as a member of the Conservation Commission. By receiving compensation from a private party in connection with these particular matters, Mr. Townsend violated s. 17(a).[1]  

17. By acting as agent for Charing Cross, the developers of "The Glen" in connection with (a) preparing and filing the EIS; (b) writing to the Board of Public Works and answering questions at Board of Health and the Conservation Commission meetings regarding the Conservation Commission's July 10, 1984 letter; (c) preparing and filing the Request for Determination; (d) preparing and filing the Notice of Intent and plans in support of this Notice of Intent; and (e) speaking as site engineer in response to questions regarding the Notice of Intent at the November 29,1984 Conservation Commission meeting, Mr. Townsend thereby violated s.17(c).[2] 

18. There is no evidence to suggest that Mr. Townsend knowingly or intentionally violated G.L. c. 268A. When he accepted his position as a co-chairman of the Conservation Commission, he made it clear that he would disqualify himself from participating in any matter in which his firm was involved, and the evidence indicates that he did so disqualify himself. In each of the matters involving "The Glen" he abstained from participation as a member of the Commission, and made it known that he was speaking only as the site engineer. 

WHEREFORE, the Commission has determined that the public interest would be served by the disposition of this matter without further Commission enforcement proceedings on the basis of the following terms, to which Mr. Townsend has agreed:

(1) that he pay to the Commission a civil penalty in the amount of $1,000 for violating G.L. c. 268A, s.s.17(a) and 17(c); and 

(2) 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 proceedings in which the Commission is a party.

[1] As detailed in paragraphs 7,12 and 13, Mr. Townsend did not participate as a member of the Conservation Commission in the particular matters regarding "The Glen," and therefore did not violate s.19(a) of G.L c. 268A. As explained herein, even though he properly abstained from participation as a municipal employee, he still violated the conflict of interest Law by receiving compensation from a private party and acting at agent for the private party in connection with the particular matters regarding "The Glen." 

[2] Even if Mr. Townsend had not filed any documents with or made any appearances before the Conservation Commission, his preparation of the EIS, the Request for Determination and the Notice of Intent and the plans relied upon in the Notice of Intent knowing that these were particular matters in which the town would have a direct and substantial interest and were within his official responsibility at the Conservation Commission, would have been sufficient to establish a violation of s.17(c).