Settlement  In the Matter of Joseph Donovan

Date:	11/23/1999
Organization:	State Ethics Commission
Docket Number:	598

Disposition Agreement

The State Ethics Commission ("Commission") and Joseph F.
Donovan ("Donovan") 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.40).

On December 16,1998, the Commission initiated, pursuant
to G.L. c. 268B, s.40), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by
Donovan. The Commission has concluded its inquiry and, on November
17, 1999, found reasonable cause to believe that Donovan violated
G.L. c. 268A, s. 19.

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

Findings of Fact

1. Donovan is and has been since his appointment in March
1993, a City of Brockton plumbing and gas fitting inspector. As
such, Donovan is a municipal employee as that term is defined in
G.L. c. 268A, s. 1. Donovan's position is salaried and has been
full time since January 1994.

2. As a plumbing and gas fitting inspector, Donovan
performs preliminary and final inspections of plumbing and gas
fitting work done in Brockton to ensure

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compliance with the state plumbing and gas fitting code.

3. Donovan's son Joseph E. Donovan ("Joseph") is a
licensed plumber and gas fitter. Joseph owns a business, Donovan
Plumbing, and has done plumbing and gas fitting for fifteen years
in Brockton and neighboring communities.[1/]

4. Donovan inspected Joseph's plumbing and gas fining
work on thirty occasions between January 1994 and July 13,
1998.[2/] In each case, Donovan determined whether his son's work
complied with the state code and signed the building permit card
indicating his inspection of the work.[3/]

5. The Commission is aware of no evidence indicating that
any of the work performed by Joseph and inspected by Donovan was
not fully up to code.

6. Donovan self-reported his inspection of his son's work
to the Commission and fully cooperated with the Commission's
investigation.

Conclusions of Law

7. Except as otherwise permitted by that section, G.L. c.
268A, s. 19 prohibits a municipal employee from participating as
such an employee in a particular matter in which to his knowledge
a member of his immediate family has a financial interest.[4/]

8. The plumbing and gas fitting inspections were
particular matters.[5/] Joseph had a financial interest[6/] in each
of these particular matters.

9. Donovan participated[7/] in the particular matters of
the inspections by performing the inspections. Each time Donovan
inspected his son's work, Donovan knew that his son had a financial
interest in the inspection.

10. Therefore, by performing the inspections as described
above, Donovan participated as a municipal employee in particular
matters in which to his knowledge an immediate family member[8/]
had a financial interest. Each time he did so, Donovan violated s.
19.

Resolution

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

(1) that Donovan pay to the Commission the sum of three
thousand dollars ($3,000.00) as a civil penalty for
violating G. L. c. 268A s. 19;[9/] and

(2) that Donovan 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/] Donovan does not have any financial interest in Donovan
Plumbing.

[2/] Donovan's co-workers issued permits and collected fees
for this work. Donovan did not issue the permits for his son's work
or receive permit fees from his son.

[3/] In a few instances when the building permit card was not
at the site, Donovan noted the inspection in his log book.

[4/] None of the G.L. c. 268A, s. 19 exemptions apply in this
case.

[5/] "Particular matter" means any judicial or other
proceeding, application submission, request for 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).

[6/] "Financial interest" means any economic interest of a
particular individual that is not shared with a substantial segment
of the population of the municipality. See Graham v. McGrail, 370
Mass. 133, 345 N.E. 2d 888 (1976). This definition has embraced
private interests, no matter how small, which are direct, immediate
or reasonably foreseeable. See EC-COI-84-98. The interest can be
affected in either a positive or negative way. See EC-COI-84-96.

[7/] "Participate" means participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee. through approval, disapproval, decision,
recommendation. the rendering of advice, investigation or
otherwise. G.L. c. 268A, s.10.

[8/] "Immediate family" means the employee and his spouse, and
their parents, children, brothers and sisters. G.L. c. 268A,
s.1(e).

[9/] The Commission has statutory authority to impose a fine
of up to $2,000 for each violation of G.L. c. 268A. While each
inspection of his son's work was a separate violation of s. 19 for
which a separate fine of up to $2,000 could have been imposed, the
Commission has chosen to impose a $3,000 fine for Donovan's course
of conduct in light of his self-reporting of his conduct and his
full cooperation with the Commission's investigation.

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