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Settlement

Settlement In the Matter of Frank Green

Date: 11/22/1994
Organization: State Ethics Commission
Docket Number: 510

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into  between the State Ethics Commission ("Commission") and Frank Green  ("Green") pursuant to s.5 of the Commission's Enforcement  Procedures. This Agreement constitutes a consented to final order  enforceable in the Superior Court, pursuant to G.L. c. 268B,  s.4(j).   

On August 9, 1993, 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 Green. The  Commission has concluded its inquiry and, on October 19, 1994,  found reasonable cause to believe that Green violated G.L. c. 268A.   

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

1. At all relevant times, Green was employed as the building  inspector for the Town of Richmond. This was a part-time position  to which Green was appointed by the Richmond Board of Selectmen and  for which he was paid $100 per month. As the Richmond building  inspector, Green was a municipal employee as that term is defined  in G.L. c. 268A, s.1(g).[1]   

2. Green's official duties as the Richmond building  inspector included issuing building permits for construction done  in the town and performing inspections to ensure that all work  performed pursuant to such permits complied with the state building  code.   

3. At all relevant times, Green was also self-employed as a  carpenter and building contractor.   

4. In 1992, Harold Dupee ("Dupee") owned a lakefront cottage  at Richmond Shores which had been heavily damaged by fire and which  Dupee wished to replace with a new house. Because of the cottage's  lakefront location, Dupee was required to build his new house on  the cottage's existing floor dimensions or "footprint". In  November 1992, Green was present in his capacity as building  inspector when Dupee measured the floor dimensions of the burned  cottage. These measurements were used to determine the dimensions  of Dupee's new house and were apparently somewhat greater than the  dimensions of the existing cottage shown on the Richmond Town  Assessor's card for the property.   

Soon after the measurements of the burned Dupee cottage were  made, Green was hired by Dupee to build a house to replace the  burned cottage. After he was hired by Dupee, Green filled out an  application for a building permit to build Dupee's new house and  signed the permit as the applicant. On December 23, 1992, Green  again signed the permit application, this time in his capacity as  the Richmond building inspector, and obtained the required  signatures of the Richmond zoning enforcement officer and the  Richmond Board of Health. Green then issued the permit, allowing  Green to proceed with the construction of Dupee's new house.   

In the course of Green's construction of Dupee's new house, an  issue was raised as to whether the new house was larger than the  cottage it replaced.[2] While the evidence on this point is  contradictory, Green concedes that the floor area of the new house  is approximately 80 square feet larger than the footprint of the  old cottage. Green attributes this difference to a lack of care on  his part in checking Dupee's measurements of the footprint of the  burned cottage, rather than deliberate action on Green's part. In  April 1993, the Richmond Zoning Board of Appeals approved a  special permit and variance for the new house without deciding the size  issue.   

Green was paid almost $20,000 for his labor in building  Dupee's house; Dupee provided the materials.[3]    5. Green, in his capacity as the Richmond building  inspector, issued the following additional building permits where  Green had personally applied for the permit and where Green was the  contractor hired by the owner to perform the permitted work:   

a. on January 10, 1990, a permit to raise a house and  install a new foundation at a Richmond Shores property;   

b. on August 22, 1990, a permit to construct dormers at a  Whitewood Cottages property;   

c. on August 29, 1990, a permit to rebuild a bathroom,  replace windows and other work at a Branch Farm property;   

d. on September 26, 1990, a permit to expand the kitchen and  construct a screened porch at a Whitewood Cottages  property;   

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e. on May 11, 1991, a permit to add a bedroom to a Richmond  Shores property;[4]   

f. on July 10, 1991, a permit to add sunshades at a Richmond  Shores property;   

g. on September 9, 1992, a permit to construct a shed at an  East Street property;[5] and   

h. on November 18, 1992, a permit to construct an addition  and a garage at a Richmond Shores property.   

6. Section 19 of G.L. c. 268A, except as permitted by  paragraph (b) of that section, prohibits a municipal employee from  participating as such an employee in a particular matter in which  to his knowledge he or an immediate family member has a financial  interest. None of the exceptions of s.19(b) apply in this case.   

7. The decisions to issue the building permits listed in  paragraphs 4 and 5 above were particular matters.   

8. As set forth in paragraphs 4 and 5 above, Green  participated as the Richmond building inspector in those particular  matters by issuing the building permits.[6]   

9. Green, as the contractor performing the permitted work,  had a financial interest in the issuance of each of the above-  listed building permits. Green knew of his financial interest at  the time he issued each of the building permits.   

10. Accordingly, by issuing the building permits listed above  in paragraphs 4 and 5, Green participated in his official capacity  as the Richmond building inspector in particular matters in which  he knew he had a financial interest. In so doing, Green violated  G.L. c. 268A, s.19.    

11. 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 improperly  influence or unduly enjoy his favor in the performance of his  official duties, or that he is likely to act or fail to act as a  result of kinship, rank, position or undue influence of any party  or person.   

12. By issuing building permits for work he would perform and  by accepting construction contracts from property owners requiring  building permits which he would issue, Green knowingly, or with  reason to know, acted in a manner which would cause a reasonable  person, with knowledge of the relevant circumstances, to conclude  that persons hiring Green as their contractor could unduly enjoy  his favor in the performance of his official duties as building  inspector. This was particularly the case with respect to Green's  official and private dealings with Dupee. Under the above-  described circumstances, a reasonable person would conclude that  Green was, as building inspector, less strict with Dupee concerning  conforming the dimensions of Dupee's new house with the footprint  of the burned cottage than Green would otherwise have been, had  Dupee not hired Green to build the new house. Accordingly, Green  violated s.23(b)(3).   

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

(1) that Green pay to the Commission the sum of five  hundred dollars ($500.00)[7] as a civil penalty for  violating G.L. c. 268A as stated above; and   

(2) that Green 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.      

[1] Green resigned as the Richmond building inspector in 1993.   

[2] In the course of this controversy, Green was advised that he might have a conflict of interest and Green self-reported his  activities to the Commission. As soon as Green became aware of the  conflict of interest, Green ceased issuing building permits for his  own work.   

[3] Green was not the only contractor who worked on the  construction of Dupee's house. Other contractors did the site  work, installed the foundation, painted the house and did the  landscaping.   

[4] In this case the building permit application was signed by the property owner rather than by Green.   

[5] In this case the building permit application was signed by both Green and the property owner.   

[6] Green did not, however, inspect the work he performed pursuant  to the building permits he issued. All inspections of Green's work  ere performed by Richmond's alternate   

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building inspector. In applying for and issuing these building  permits for work he performed, Green was apparently following an  established practice in Richmond which was apparently known to  Green's appointing authority, the Board of Selectmen. Following an  established practice which violates the conflict of interest law  does not, however, obviate or excuse the violation. Nevertheless,  it may be a mitigating circumstance to be considered in assessing  the civil penalty imposed for the violation, as set forth above.   

[7] That Green's penalty is not higher reflects the fact that Green  self-reported this matter to the Commission and ceased issuing  building permits for his own work as soon as he was made aware of  the conflict of interest. In addition, Green's violations are  mitigated by the fact that Green was following an established,  albeit unlawful, practice in issuing the building permits for his  own work which was known to his appointing authority, the Board of  Selectmen, and by the fact that Green did not inspect his own work  (which was inspected by the alternate building inspector).   

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