Settlement  In the Matter of Marguerite Coughlin

Date:	11/05/1987
Organization:	State Ethics Commission
Docket Number:	331

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Marguerite Coughlin (Mrs. Coughlin) 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. 268B, s.4(j).

On July 29,1986, the Commission initiated a preliminary inquiry, pursuant to G.L. c. 268B, s.4(a), into possible violations of the conflict of interest law, G.L. c.

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268A, involving Mrs. Coughlin, a member of the Beverly Planning Board. The Commission has concluded that preliminary inquiry and, on October 6, 1986, found reasonable cause to believe that Mrs. Coughlin violated G.L. c. 268A, s.19.

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

1. Mrs. Coughlin is a member of the Beverly Planning Board, having been appointed as such by the mayor in January, 1985. In that capacity, she is a municipal employee within the meaning of G.L. c. 268A, s.1(g).

2. Mrs. Coughlin lives at 4 Frankwood Avenue in Beverly in a single family house owned by her and her husband. The Coughlins' property abuts at one corner property owned by Robert and Kathleen Gilligan (the Gilligans) at 74 Dodge Street in Beverly.

3. In the Spring of 1985, the Gilligans petitioned the Beverly Board of Appeal of the Zoning Ordinance (Zoning Board) for a variance so as to be able to convert an existing barn into a three- room apartment.

4. A hearing was held by the Zoning Board on the Gilligans' petition on May 14, 1985. The Coughlins received official notice of the variance petition hearing as "parties in interest" pursuant to G.L. c. 40A, s.s.10 and 11. Zoning Board action was deferred on the petition until June 11,1985, to allow the Coughlins, as direct abutters, to reach an agreement with the Gilligans regarding the proposal. No such agreement was reached.

5. A special meeting of the Planning Board was held on June 10,1985. At the meeting, the Board considered whether to send recommendations to the Zoning Board concerning the Gilligans' petition and another petition for a variance. It was usual at the time for the Planning Board to send such advisory recommendations either by vote of the members or at the discretion of the Planning Director and the chair.

6. Mrs. Coughlin voted in favor of a motion by another member to recommend that the Zoning Board deny the Gilligans' petition. The motion, which required a simple majority for approval, passed by a 6-2 vote. It is Mrs. Coughlin's position that she did not participate in the discussion of the Gilligans' petition before this vote because she did not think that, being an abutter to the Gilligans, she should influence the other Planning Board members. The Planning Board's recommendation was advisory in nature and not binding on the Zoning Board.

7. At the June 11,1985, meeting of the Zoning Board, the letter from the Planning Board recommending the denial of the Gilligans' petition was read. Four votes were necessary for the Zoning Board to allow the variance; the variance petition was denied by a vote of three votes for allowance and two for denial.

8. After the denial of their variance petition, the Gilligans obtained a Superior Court order remanding the matter to the Zoning Board on the ground that the Gilligans had not been notified of the June 10,1985 Planning Board meeting and had not had an opportunity to be heard at it. At its October 15,1985 meeting, the Zoning Board reconsidered the matter and voted 4-1 to grant the variance.

9. Section 19 of G.L. c. 268A provides that, except as permitted by s.19,[1] a municipal employee is prohibited from participating as such in a particular matter in which, to his knowledge, he or his immediate family has a financial interest.

10. The Planning Board decision on the motion to recommend that the Zoning Board deny the Gilligans petition was a particular matter, Mrs. Coughlin participated as a municipal employee in this particular matter by voting on the motion as a Planning Board member.[2] She and her husband had, to her knowledge, a financial interest in this particular matter as abutters to the Gilligan's property. By her vote, therefore, Mrs. Coughlin violated s.19.

11. The Commission recognizes that the Coughlin's financial interest in the particular matter in question, while sufficient to constitute a financial interest within the meaning of s.19, probably was slight and, in any event, cannot readily be quantified.[3] Although the fact that the municipal employee's financial interest in the particular matter is slight and not quantifiable is not a defense to a charge that the employee violated s.19, it is a factor which may be considered in determining the proper sanction to be imposed for the violation.

12. The evidence shows that Mrs. Coughlin did not intentionally violate the conflict of interest law.[4]

Based on the foregoing facts, and having given due consideration to the above-described mitigating circumstance of the uncertain and apparently minimal nature of the Coughlins' financial interest in the Gilligans' petition, the Commission has determined that the public interest would be served by the resolution of this matter without further enforcement proceedings, and without the payment of a fine by Mrs. Coughlin, on the basis of Mrs. Coughlin's entrance into this Agreement and upon following terms and conditions agreed to by Mrs. Coughlin:

1. that she will not participate as a member of the Beverly Planning Board in any matter as to which she is a party in interest as defined in G.L. c. 40, s.11 or in which she has a financial interest within the meaning of G.L. c. 268A, s.19; and

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

[1] None of the exceptions applies in this case. 

[2] Voting on a particular matter, even without taking part in the discussion before the vote, is enough to constitute participation under s.19,just as taking 

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part in the discussion o fa matter is enough for participation, even if one does not vote. 

[3] The Commission has previously indicated that "parties in interest" as defined by M.G.L. c. 40A, s.11 have a financial interest within the meaning of G.L.c. 268A, s.19 in the particular matter as to which they are parties in interest, regardless of whether or not the financial interest is in fact substantial and whether or not it is actually realized. see, e.g., EC-COI-84-96. 

[4] Ignorance of the law is no defense to a violation of G.L. c.268A. In the Matter of C.Joseph Doyle, 1980 SEC 11,13. see also, Scola v. Scola, 318 Mass. 1, 7(1945).