Settlement  In the Matter of John P. King

Date:	03/01/1990
Organization:	State Ethics Commission
Docket Number:	379

Disposition Agreement

This Disposition Agreement (Agreement) is entered in to between the State Ethics Commission (Commission) and John P. King (Mr. King) of Wareham 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. 268A, §4(j).

On June 14, 1988, the Commission initiated, pursuant to G.L. c. 268A, §4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Mr. King.  The Commission has concluded that inquiry and, on January 24, 1990, found reasonable cause to believe that Mr. King violated G.L. c. 268A, §17.

The Commission and Mr. King now agree to the following facts and conclusions of law:

Findings of Fact

1.  At all times here relevant, Mr. King was a member of the Wareham Planning Board (Planning Board), a part-time, unpaid position to which he was appointed by the Wareham Board of Selectmen (Board of Selectmen).  Mr. King ceased to be a Planning Board member as of June 26, 1989.  As a member of the Planning Board, Mr. King was, at all times here relevant, a “municipal employee” as that term is defined in G.L. c. 268A, §1(g).

2.  Planning Board members were designated by the Board of Selectmen as “special municipal employees” in 1963, pursuant to G.L c. 268A, §l(n).  As a member of the Planning Board, Mr. King was, at all times here relevant, a “special municipal employee” as that term is defined in G.L. c. 268A §1(n).

3.  In addition to serving on the Planning Board, at all times here relevant, Mr. King worked privately for his own civil engineering firm.  Mr. King is a registered professional engineer.

4.  During 1987, sometime prior to September, Mr. King, in his private capacity as a professional engineer, created a site plan for a building which Frank Gropman (Mr. Gropman) of Wareham planned to build on Mr. Gropman’s property at 3223 Cranberry Highway in Wareham.  Mr. King was not compensated by Mr. Gropman for the engineering work he did for the planned 3223 Cranberry Highway building, but instead did the work as a favor for Mr. Gropman, based on their long-standing personal friendship.

5.  In approximately September, 1987, Mr. Gropman sought a building permit for his planned 3223 Cranberry Highway building.  In order to obtain the building permit, Mr. Gropman applied for Site Plan Review by the Planning Board, pursuant to Section 6, subsection C of the Wareham Zoning By­law, and actively sought a hearing of the matter by the Planning Board.  Mr. Gropman’s application for Site Plan Review included the site plan prepared for him by Mr. King.

6.  The Planning Board held a public hearing on Mr. Gropman’s request for Site Plan Review of his proposed Cranberry Highway building on November 16, 1987. Mr. Gropman did not attend the hearing.  Mr. King was present at the hearing, but not as a member of the Planning Board.  Mr. King appeared before the Planning Board in his private capacity as a professional engineer representing Mr. Gropman as his client in Mr. Gropman’s request for Site Plan Review.  On behalf of Mr. Gropman, Mr. King described the proposed Cranberry Highway project and answered questions put to him by other members of the Planning Board, in a hearing that lasted 45 minutes.  Mr. King was Mr. Gropman’s sole representative at the hearing.  Mr. King did not participate in the hearing as a member of the Planning Board.

7.  On December 14, 1987, the Planning Board acted on Mr. Gropman’s request for Site Plan Review of his proposed Cranberry Highway building. Mr. King absented himself from this meeting and the four remaining Planning Board members voted unanimously to deny Mr. Gropman’s Site Plan Review application based on their determination that it was “improperly submitted” and did not “meet the requirements of the Town of Wareham Zoning By-law, Site Plan Review, Section 6, subsection c., Information Required.”

Conclusions of Law

8.  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 connection with any particular matter in which the same municipality is a party or has a direct and substantial interest.  For a “special municipal employee; such as Mr. King, the prohibition of §17(c) applies only in relation to particular matters (i) in which the employee has participated as a municipal employee, or (ii) which is, or within one year has been a subject of his official responsibility, or (iii) which is pending in the municipal agency in which he is serving.[1]  The Site Plan Review of Mr. Gropman’s proposed project was a particular matter in which the Town of Wareham bad a direct and substantial interest and which was a subject of Mr. King’s official responsibility as a Planning Board member when Mr. King acted as Mr. Gropman’s agent.

9. By representing Mr. Gropman at the November 16, 1987 Planning Board meeting, Mr. King acted as the agent for someone other than the Town of Wareham (Mr. Gropman) in connection with a particular matter in which the Town of Wareham had a direct and substantial interest and which was a subject of Mr. King’s official responsibility as a Planning Board member when Mr. King acted for Mr. Gropman, thus violating §17(c).

Resolution

In view of the foregoing violation of G.L. c. 268A, §17(c), 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 agreed by Mr. King:

1.  that Mr. King pay to the Commission the amount of seven hundred and fifty dollars ($750.00) as a civil penalty for violating G.L. c. 268A, §17(c); and

2.  that Mr. King waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this agreement in this or in any related administrative or judicial proceeding in which the Commission is or may be a party.

[1] Restriction (iii) is applicable only to special municipal employees who serve on more than sixty days during any period of 365 consecutive days. No conclusion has been made for the purposes of this Agreement whether Mr. King was such a special municipal employee and restriction (ill) is not here relied upon in reaching the conclusion that Mr. King violated G.L. c. 268A, §17(c).