Settlement  In the Matter of Pine duBois

Date:	02/28/2013
Organization:	State Ethics Commission
Docket Number:	13-0001

Disposition Agreement

The State Ethics Commission (“Commission”) and Pine duBois (“duBois”) 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 June 16, 2011, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by duBois.  On January 20, 2012, the Commission concluded its inquiry and found reasonable cause to believe that duBois violated G.L. c. 268A, §§ 17 and 23.

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

1. The Town of Kingston (the “Town”) Community Preservation Committee (“CPC”) is charged with making recommendations to Town Meeting for:  the acquisition, creation and preservation of open space; the acquisition, preservation, restoration and rehabilitation of historic resources; the acquisition, creation and preservation of land for recreational use; the creation, preservation and support of community housing; and rehabilitation or restoration of such open space, land for recreational use and community housing that is acquired or created.  Pursuant to the Community Preservation Act, The CPC annually recommends setting aside at least 10% of the annual revenues received by the Community Preservation Fund for each of the following purposes: (a) open space (not including land for recreational use); (b) historic resources; and (c) community housing.
    
2. DuBois was, during the relevant time, a CPC member.  As such, duBois was a municipal employee as that term is defined in G.L. c. 268A, § 1. 
    
3. DuBois was appointed by the Town’s town moderator to the Town’s Open Space Committee; in turn, the Open Space Committee voted to make duBois its designee to the CPC.
    
4. Also during the relevant time, duBois was the unpaid president of the Jones River Landing Environmental Heritage Center (the “Jones River Landing”), a nonprofit organization established as a supporting organization of the Jones River Watershed Association, a non-profit environmental organization.

Holmes/Watson Boatyard Project

Findings of Fact

5. On or about October 31, 2008, the Jones River Landing applied to the CPC for $75,000 to restore two boatsheds in the Holmes/Watson Boatyard (“Holmes/Watson Project”), a property owned by the Jones River Landing, and on which the Town holds a conservation restriction.
    
6. At the time that the Holmes/Watson Project came before the CPC, the CPC chair and other members knew that duBois was affiliated with the Jones River Landing.
    
7. During a January 13, 2009 CPC review of the Holmes/Watson Project, duBois, acting on behalf of the Jones River Landing, informed the CPC that the Jones River Landing needed funds to pay down its debt on the Holmes/Watson Boatyard property in order to receive matching funds from a private donor.
    
8. During a February 4, 2009 CPC meeting, duBois, as a CPC member,  numerically ranked nine projects that were seeking CPC funding, including the Holmes/Watson Project.  DuBois gave the Holmes/Watson Project her second highest score.
    
9. Also during the February 4, 2009 CPC meeting, duBois, as a CPC member, voted to approve the project for submission to Town Meeting for approval of funding for the Holmes/Watson Project for the requested amount of $75,000, which was for the purchase of a preservation restriction and restoration of an historic boat shed.
    
10. During a May 12, 2009 CPC meeting, duBois, acting on behalf of the Jones River Landing, asked when the Jones River Landing needed to obtain a preservation restriction in order to receive $40,000 in partial CPC funding. 
     
11. During a July 14, 2009 CPC meeting, duBois, acting on behalf of the Jones River Landing, requested guidance as to whether the Jones River Landing could obtain the approved Holmes/Watson Project funding while awaiting the Massachusetts Historical Commission’s decision to approve a preservation restriction.^[1]
     
12. During an August 11, 2009 CPC meeting, duBois, acting on behalf of the Jones River Landing, requested that the CPC sign off on a payment schedule of $40,000 to the Jones River Landing for the Holmes/Watson Project so that the document would be ready for processing upon approval of the Massachusetts Historical Commission preservation restriction.  DuBois then voted as a CPC member to have the CPC sign off on the schedule, although she was not one of the CPC members who later signed the schedule.
     
13. DuBois, acting on behalf of the Jones River Landing, provided updates on the Holmes/Watson Project during the CPC meetings of September 16, 2009, and January 14, 2010, as requested by the CPC.

Conclusions of Law              

Section 17(c)

14. Section 17(c) of G.L. c. 268A prohibits a municipal employee from, otherwise than in the proper discharge of his official duties, acting as agent for anyone other than the municipality in connection with a particular matter^[2]  in which the municipality is a party or has a direct and substantial interest.
     
15. The decision to recommend that CPC funds be awarded to the Holmes/Watson Project was a particular matter.
     
16. The Town of Kingston was a party to, and had a direct and substantial interest in, that particular matter because the CPC funds were Town funds administered through the CPC based on Town Meeting approval of funding for the project.
     
17. DuBois, as the unpaid president of the Jones River Landing, acted as agent for the Jones River Landing in relation to that particular matter by (1) informing the CPC that the Jones River Landing needed to pay down the debt in order to obtain matching funds; (2) asking the CPC when the Jones River Landing needed to obtain a preservation restriction in order to receive the $40,000 in partial CPC funding; (3) requesting guidance from the CPC as to how the Jones River Landing could obtain funding while awaiting the preservation restriction; (4) requesting that the CPC sign off on a payment schedule of $40,000; and (5) providing updates to the CPC on behalf of the Jones River Landing at the CPC’s meetings on May 12, 2009, September 16, 2009 and January 14, 2010.  Therefore, duBois, otherwise than in the proper discharge of official duties, acted as agent for someone other than the town in connection with a particular matter in which the town was a party and/or had a direct and substantial interest.  By doing so, duBois violated § 17(c).

Section 23(b)(3)

18. 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.
     
19. By, as a CPC member, ranking the Holmes/Watson Project for CPC funds, voting to allocate $75,000 to the project, and voting to approve the $40,000 payment schedule, duBois 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 Jones River Landing could unduly enjoy duBois’ favor in the performance of her official duties.  DuBois did not file a timely disclosure^[3]  to dispel this appearance of a conflict of interest.  Therefore, in so acting, duBois violated G.L. c. 268A, § 23(b)(3). 

Resolution

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

1. that Pine duBois pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $ 2,500^[4] as a civil penalty for violating G.L. c. 268A, §§ 17(c), and 23(b)(3)^[5] as described above; and
    
2. that Pine duBois 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.

^{[1] A “preservation restriction” is a legal agreement between a landowner and a governmental entity placing limitations on development and certain uses of land.}

^[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, 1(k).

^[3]  DuBois filed a disclosure with the town moderator on February 19, 2010.

^[4]  The maximum civil penalty for violations of the conflict of interest law occurring prior to September 29, 2009, was $2,000 per violation.  Violations occurring on or after that date are generally subject to a maximum penalty of $10,000.  See Chapter 28 of the Acts of 2009.

^[5]  As to the § 23(b)(3) violations, the Commission finds it somewhat mitigating that CPC members were aware at the relevant time of duBois’ position with the Jones River Landing.