Settlement  In the Matter of Marc Becker

Date:	12/14/2006
Organization:	State Ethics Commission
Docket Number:	06-0023

Disposition Agreement

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

On March 16, 2006, 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 Becker. On July 25, 2006, the Commission amended its preliminary inquiry to include additional possible violations of the conflict of interest law, G.L. c. 268A, by Becker. The Commission concluded its inquiry and, on September 13, 2006, found reasonable cause to believe that Becker violated G.L. c. 268A, s.s.19 and 23(b)(3).

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

Findings of Fact

1. At all relevant times, Becker was the Town of Webster Planning Board chairman.

2. At all relevant times, Becker was a real estate broker with Sterling Realty in Webster, MA.
 

82 Lakeside Avenue Property

3. On or about October 2002, Becker listed property located at 82 Lakeside Avenue in an open listing. This property included a 3 bedroom/3 full bath house with a total of 159 feet of lake frontage, including a 54 foot buildable lot on the north side of the house. He remained the listing agent on the property at all relevant times.

4. In or about October 2002, Becker offered the property for sale at $950,000. Becker entered an exclusive listing for the property in May 2003. In May 2003, the price was reduced to $849,000 or $695,000 without the additional lot (which was not yet approved for subdivision). In July 2003, the price of the property without the extra lot was reduced to $649,000. In December 2003, the price was reduced to $725,000, or $579,900 without the extra lot.

5. On October 30, 2003, Becker participated as a Planning Board member in endorsing an ANR ("approval not required") plan as a Planning Board member for 82 Lakeside Avenue, which had not yet sold. An ANR plan typically allows the applicant to obtain Planning Board approval for subdividing a property into two or more lots without having to meet the requirements of the subdivision control law, provided that each lot has the required minimum square footage and frontage on an existing way.

6. The ANR plan permitted the property to be subdivided so that a buildable lot, consisting of 54 feet of lake front property, could become a separate parcel from the larger lot, which included a house.

7. Prior to approving the ANR, the Planning Board ensured the ANR plan contained minimum frontage and square footage requirements. The property contained the required minimums. The Planning Board, with Becker participating, voted to endorse the ANR.

8. Thereafter, Becker continued to actively market the property as a real estate broker. The marketing plan took advantage of the flexibility provided by the property's division into two lots. The 54 foot buildable lake frontage lot was offered as an incentive to a buyer interested in the larger parcel. Becker offered to sell the whole property for $725,000, or the larger lot for $579,000 and the smaller lot for $225,000.

9. On August 30, 2004, 82 Lakeside Avenue was sold for $660,000. The buyer opted to purchase the whole property and the owner ultimately recombined the lots. Becker received a $9,000 commission on the sale.

Beach Street Property

10. At all relevant times, Becker was listing agent for property located at Beach Street/Lakeside Avenue/Mohawk Avenue ("Beach Street"). The property consisted of a 1.25 acre lot and a 5,000 square foot lot.

11. On September 19, 2002, Becker participated as a Planning Board member in endorsing an ANR plan to divide the property into five lots.

12. The ANR plan was submitted by a developer who had entered into a purchase and sales agreement on the property. The property's purchase and sales agreement made it a condition of sale that the property be divided and that the developer successfully obtain building permits for the lots.

13. Prior to endorsing the ANR, the Planning Board ensured the ANR plan contained minimum frontage and square footage requirements. The property contained the required minimums. The Planning Board, with Becker participating, voted to endorse the ANR.

14. On October 29, 2002, the property sold. Becker received a $4890 commission on the sale.

15. Becker cooperated with the Commission in its investigation and, subsequent to the beginning of the investigation, attended a Conflict of Interest Training Seminar.

Conclusions of Law

16. Section 19 of G.L. c. 268A prohibits a municipal employee from participating[1] as such an employee in a particular matter[2] in which, to his knowledge, he has a financial interest.[3]

82 Lakeside Avenue Property

17. The decision to endorse the ANR for 82 Lakeside Avenue was a particular matter.

18. Becker participated personally and substantially in that matter by reviewing the ANR plan, ensuring it contained minimum requirements, and voting to endorse the ANR.[4]

19. At the time he voted to endorse the ANR for 82 Lakeside Avenue, Becker had a financial interest in the Planning Board's decision to endorse the ANR plan. Becker had a financial interest in the decision because the ANR endorsement would likely impact when and how much he would receive in a commission as the listing agent. He could sell the lots together or separately, and use the smaller, lakeside lot as an incentive to a buyer interested in purchasing the larger parcel. This flexibility made the property's sale more likely and would reasonably and foreseeably permit Becker to obtain a commission sooner than he otherwise would have if the property had not been divided by the ANR plan.

20. Therefore, Becker violated s. 19 by participating in endorsing the ANR on 82 Lakeside Avenue.

Beach Street Property

21. The decision to endorse the ANR for the property located at Beach Street was a particular matter.

22. Becker participated personally and substantially in that matter by reviewing the ANR plan, ensuring it contained minimum requirements, and voting to endorse the ANR.

23. At the time he voted to endorse the ANR for the property located at Beach Street, Becker had a financial interest in the ANR endorsement decision because, as listing agent, he would receive a commission from the property's sale and the pending sale of the property was contingent on the property being successfully divided. This division was accomplished by the ANR plan.

24. The property sold just over a month after Becker participated in endorsing the ANR. He received a $4980 commission. 25. Therefore, Becker violated s. 19 by participating in endorsing the ANR on property located at Beach Street.

Resolution

In view of the foregoing violation of G.L. c. 268A by Becker, 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 Becker:

(1) that Becker pay to the Commission the sum of $2,000.00 as a civil penalty for violating G.L. c. 268A, s.19 as to property located at 82 Lakeside Avenue;

(2) that Becker pay to the Commission the sum of $2,000.00 as a civil penalty for violating G.L. c. 268A, s.19 as to property located at Beach Street;

(3) that Becker 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] "Participate" means to 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. 1(j).

[2] "Particular matter" means 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).

[3] "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 (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. EC-COI-84-96.

[4] Becker claims to have orally disclosed to the Planning Board that he was the listing agent on both this property and the Beach Street property prior to endorsing the ANR plans on both properties. Meeting minutes do not reflect such disclosures, nor does an oral disclosure cure a s.19 violation. Section 19 requires public employees to abstain from participating in a matter in which they have a financial interest. Under s.19(b)(1), an appointed public employee may participate in such a matter only after he discloses in writing the nature and circumstances of the particular matter and makes full disclosure of his financial interest and then receives a written determination from his appointing authority that his financial interest is not so substantial as to affect the integrity of his services to the municipality.