Settlement  In the Matter of Herbert Kuendig

Date:	09/17/1996
Organization:	State Ethics Commission
Docket Number:	553

Disposition Agreement

The State Ethics Commission ("Commission") and Herbert Kuendig
("Kuendig") enter into this Disposition Agreement ("Agreement")
pursuant to Section 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 April 11, 1995, the Commission initiated, pursuant to G.L.
c. 268B, s.4(j), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A, by Kuendig. The
Commission has concluded its inquiry and, on November 15, 1995,
found reasonable cause to believe that Kuendig violated G.L. c.
268A, s.17(a) and (c).

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

Findings of Fact

1. Kuendig was, during the time relevant, a Scituate Planning
Board member. As such, Kuendig was a municipal employee as that
term is defined in G.L. c. 268A, s.1.

2. During the time relevant, Kuendig d/b/a Kuendig Design was
engaged in architectural design work.

3. In 1992 Larry Deraney ("Deraney") hired Kuendig to
redesign a house which had been completely destroyed by fire.
Deraney wanted the new house to have an accessory dwelling,[1]
which would require Planning Board approval. Deraney paid Kuendig
between $1,000 and $1,500 for this design work.

4. In September 1992 Kuendig submitted the design work for
the accessory dwelling to the Planning Board and appeared before
the board on behalf of Deraney regarding the accessory dwelling
permit matter. Kuendig abstained from participation as a Planning
Board member on the matter.[2]

Conclusions of Law

5. Section 17(a) of G.L. c. 268A prohibits a municipal
employee from directly or indirectly receiving compensation from
anyone other than the municipality in relation to a particular
matter[3] in which the municipality has a direct and substantial
interest.

6. The Planning Board's determination regarding Deraney's
accessory dwelling permit was a particular matter. The town had a
direct and substantial interest in that particular matter.

7. Kuendig received between $1,000 and $1,500 for designing
the plans for the Deraney's accessory dwelling, which he knew
would go before the Planning Board in relation to the issuance of an
accessory dwelling permit, and for appearing before the board in
relation to that permit.

8. Therefore, by directly receiving compensation from Deraney
for designing a plan and appearing before the Planning Board in
relation to the Planning Board's determination regarding the
accessory dwelling permit, Kuendig received compensation in
relation to a particular matter in which the town had a direct and
substantial interest, thereby violating s.17(a).

9. Section 17(c) of G.L. c. 268A prohibits a municipal
employee from acting as agent or attorney for anyone other than the
municipality in relation to a particular matter in which the town
has a direct and substantial interest.

10. By appearing before the Planning Board on Deraney's
behalf regarding the accessory dwelling permit particular matter,
Kuendig acted as Deraney's agent in relation to a particular matter
in which the town had a direct and substantial interest, thereby
violating s.17(c).

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Resolution

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

(1) that Kuendig pay to the Commission the sum of one
thousand dollars ($1,000) as a civil penalty for
violating G.L. c. 268A, s.17; and

(2) that Kuendig 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] The Scituate Zoning Bylaw c. 14, s.200 defines "accessory
dwelling" as "a separate housekeeping unit complete with its own
sleeping, cooking and sanitary facilities that is substantially
contained within the structure of a single-family dwelling or
business structure, but functions as a separate unit.

[2] Kuendig understood, based on information provided by the
then Planning Board chairman, that he could represent private
clients before the Planning Board as long as he abstained as a
board member on the matters. As discussed infra. Kuendig's
understanding was incorrect.

[3] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s.1(k).

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