Settlement  In the Matter of Mark Stevenson

Date:	10/29/2015
Organization:	State Ethics Commission
Docket Number:	15-0008

Disposition Agreement

The State Ethics Commission (“Commission”) and Mark Stevenson (“Stevenson”) enter into this Disposition 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, § 4(j). 

On February 20, 2014, the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Stevenson.  See G.L. c. 268B, § 4(a).  On September 16, 2015, the Commission concluded its inquiry and found reasonable cause to believe that Stevenson violated G.L. c. 268A, §§ 23(b)(2)(ii) and (b)(3).

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

Findings of Fact

1. Stevenson served on the Marshfield Conservation Commission (the “ConCom”) from 2007 until August 2013. 
    
2. Stevenson is a marine engineer and owner of Offshore Marine, a marine contracting company.

January 28, 2013 Conversation at Roht Marine

3. Roht Marine is a marina located in Marshfield.  In January 2013, Roht Marine was undergoing significant renovation and construction (the “Roht Marine Project”).  The general contractor determined that new pilings^[1] would have to be installed and he asked Stevenson to provide an estimate of the cost of the work.       
     
4. On January 28, 2013, Stevenson met the general contractor at Roht Marine to look at the work that would be required and to discuss the project.  Stevenson and the general contractor had not previously met.  Stevenson and the general contractor spent about 15 minutes discussing the work.  According to Stevenson, it was during this discussion that Stevenson first told the general contractor that he was on the ConCom. 
    
5. Shortly thereafter, the owner of Roht Marine (the “owner”), along with a Roht Marine employee and the building designer for the Roht Marine Project, joined Stevenson and the general contractor on the dock to discuss the project for about 15 more minutes.  None of the individuals present knew Stevenson prior to this interaction. 
    
6. During the first few minutes of their conversation, Stevenson talked at length about the ConCom, causing the owner and the building designer to both initially believe that Stevenson was at the marina as a representative of the ConCom on an official visit.  As the conversation continued, they learned that Stevenson was at the marina to look at the site in order to submit an estimate for the pilings work for the Roht Marine Project. 
    
7. During that conversation, Stevenson stated that the pilings removal and installation work was complicated because it would require the use of a barge which would have to be brought in through the waterways and under bridges, and because the project involved protected land.  Stevenson continued to talk about his work on the ConCom and stated that although the work was sensitive, there would not be any complications because he was the chairman of the ConCom and had been in business for a long time. 
    
8. Based on Stevenson’s statements during their January 28, 2013 meeting, the owner and the general contractor were concerned that Stevenson would use his ConCom position to adversely impact the Roht Marine Project if Offshore Marine was not selected to perform the pilings job. 
    
9. Stevenson submitted an estimate for Offshore Marine to do the pilings job.  Nevertheless, at the end of February 2013, the owner selected a contracting company other than Offshore Marine to perform the pilings work. 

July 18, 2013 Enforcement Order 

10. On March 19, 2013, the ConCom issued an Order of Conditions for the Roht Marine Project that outlined requirements for the septic system, lockers and restrooms.  Stevenson did not participate in this matter.
     
11. By summer 2013, Roht Marine had begun constructing the foundation for a structure on its property as part of the Roht Marine Project.  On July 18, 2013, Stevenson determined that the ConCom had not granted approval for the structure and that the ConCom should issue an Enforcement Order requiring Roht Marine to cease construction immediately. 
     
12. It is typically the ConCom agent who issues Enforcement Orders, but in his absence, one ConCom member is authorized to do so.  The ConCom’s protocol is to then have the matter addressed by the full board at the next ConCom meeting.  On this occasion, the ConCom agent was on vacation and Stevenson telephoned the ConCom agent to discuss the matter.
        
13. Later on July 18, 2013, Stevenson drafted an Enforcement Order against Roht Marine.  Stevenson emailed a draft of the Enforcement Order to Town Counsel for review.  The draft Order had a line for Stevenson’s signature as the ConCom representative.  Town Counsel reviewed the draft, made changes, and suggested that the Marshfield Police Department serve the Enforcement Order on Roht Marine.     
       
14. Sometime thereafter on July 18, 2013, after obtaining the ConCom agent’s authorization by telephone, the ConCom administrative assistant signed the ConCom agent’s name.  She placed her initials next to the signature on the Enforcement Order.  Stevenson did not sign it.      
           
15. Stevenson brought the Enforcement Order to the Marshfield Police Department and it was then served by a police officer on the owner of Roht Marine.
     
16. Stevenson then went to the Marshfield Building Commissioner’s office to report that unauthorized construction work was being performed at Roht Marine and to inform the office that an Enforcement Order had issued.
     
17. The Roht Marine Project was discussed at the July 30, 2013 ConCom meeting, at which time Stevenson recused himself.  As there was considerably more work being done than what had been proposed in the original Notice of Intent, including the construction of a patio and a separate building for restrooms, the ConCom voted 5-0, with Stevenson not participating in the vote, to require a new Notice of Intent for the project. 
     
18. On August 20, 2013, Stevenson resigned from the ConCom.
     
19. The owner of the Roht Marine Project stated that once he learned that a permit was necessary for the additional work, he took action to ensure he was in compliance with the law.  On October 22, 2013, the ConCom approved the changes to the Roht Marine Project and closed the Enforcement Order.

Conclusions of Law

20. As a ConCom member, Stevenson was a “municipal employee” as that term is defined in G.L. c. 268A, § 1(g).  

January 28, 2013 Conversation at Roht Marine

Section 23(b)(2)(ii)

21. Section 23(b)(2)(ii) of G.L. c. 268A prohibits a municipal employee from, knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.
     
22. While discussing his company’s bid for private work, Stevenson referred to his ConCom membership and stated that there would not be any complications with the project because he was the ConCom chairman.  Stevenson in effect made his ConCom membership part of his pitch to Roht Marine to hire his company for the pilings job.  By so doing, Stevenson knowingly, or with reason to know, attempted to use his official position as a ConCom member to secure the pilings job for his company, Offshore Marine.
     
23. The opportunity to obtain the pilings job and compensation for himself and/or Offshore Marine was a privilege of substantial value.
     
24. Had Stevenson obtained the pilings job, it would have been an unwarranted privilege because of his use of his official position to secure it.
     
25. This unwarranted privilege was not properly available to similarly situated individuals, as no contractor seeking to secure the pilings job would have been lawfully able to leverage a public position in an attempt to obtain the work.
     
26. Therefore, by, acting in the manner described above, Stevenson knowingly or with reason to know used or attempted to use his official ConCom position to secure for himself or for his company, Offshore Marine, the pilings job from Roht Marine, which was an unwarranted privilege of substantial value, not properly available to other similarly situated individuals, thereby violating § 23(b)(2)(ii).

July 18, 2013 Enforcement Order 

Section 23(b)(3)

27. Section 23(b)(3) of G.L. c. 268A prohibits a municipal employee from, knowingly, or with reason to know, acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.  The section further provides that it shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority the facts which would otherwise lead to such a conclusion.  Such disclosure must be made before taking any official action.
     
28. After having unsuccessfully sought the pilings work on the Roht Marine Project using his ConCom position in early 2013 as described above, Stevenson: (1) initiated the July 18, 2013 Enforcement Order against Roht Marine; (2) contacted the ConCom agent about the matter; (3) drafted the Enforcement Order and emailed it to Town Counsel for review; (4) signed the initial draft Enforcement Order as the ConCom member representative; (5) arranged for service of the Enforcement Order by the police department; and (6) reported the unauthorized construction at Roht Marine to the Building Commissioner.  Stevenson did not file a disclosure with his appointing authority of his recent unsuccessful private dealings with Roht Marine prior to taking these actions in connection with the July 18, 2013 Enforcement Order. 
     
29. Stevenson knowingly or with reason to know acted in a manner which would cause a reasonable person, having knowledge of all the relevant circumstances, to conclude that the Roht Marine and/or its owner could improperly influence Stevenson in the performance of his official duties or that he is likely to act or fail to act as a result of such undue influence.  Stevenson did not file a disclosure with his appointing authority revealing his prior bid on the Roht Marine Project to dispel this appearance of a conflict of interest.  Therefore, Stevenson violated G.L. c. 268A, § 23(b)(3). 

Resolution

In view of the foregoing violations of G.L. c. 268A by Stevenson, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, upon the following terms and conditions agreed to by Stevenson:

(1)   that Stevenson pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of Two Thousand Five Hundred Dollars ($2,500) as a civil penalty for violating G.L. c. 268A, §§ 23(b)(2)(ii) and (b)(3); and

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

By signing below, Mark Stevenson acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to all of the terms and conditions therein.

^[1] A piling is a vertical structural element of a deep foundation, driven deep into the ground at the building site.