Settlement  In the Matter of Robert Columbus

Date:	05/26/1993
Organization:	State Ethics Commission
Docket Number:	468

Disposition Agreement

This Disposition Agreement (Agreement) is entered into  between the State Ethics Commission (Commission) and Robert  Columbus (Mr. Columbus) pursuant to s. 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. 4(j).   

On September 10, 1992, 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  Columbus. The Commission has concluded its inquiry and, on March  30, 1993, found reasonable cause to believe that Columbus  violated G.L. c. 268A. On May 21, 1993, the Commission's  Enforcement Division issued an Order to Show Cause, commencing  adjudicatory proceedings. The Order to Show Cause alleged that  Columbus violated G.L. c. 268A, s. 19 by issuing building permits  to himself or his sons. On May 25, 1993, the Enforcement Division  and Columbus informed the Commission that they proposed to  resolve the matter.   

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

1. At all relevant times, Columbus was employed as a  building inspector for the Town of Stoneham. As such, Columbus  was a municipal employee as that term is defined in G.L. c. 268A,  s. 1(g).   

2. Columbus' official duties as the Stoneham Building  Inspector include the issuing of building permits for  construction being done in the town and ensuring all work  performed pursuant to such permits complies with local building  codes.   

3. At all relevant times, Columbus owned property at 1  Brookbridge Road in Stoneham, his son Stephen Columbus (Stephen)  owned Stoneham properties at 25 Washington Street and 76 Williams  Street, and his son Robert Columbus (Robert) owned Stoneham  property at 86 Pleasant Street.   

4. On the following dates, and at the places indicated,  Columbus, in his capacity as Stoneham Building Inspector, issued  the following building permits:   

(a) a November 6, 1987 building permit to Stephen for 25  Washington Street for a re-roof;   

(b) a November 6, 1987 building permit to Robert for 86  Pleasant Street for a kitchen addition;   

(c) an April 24, 1990 building permit to Stephen for 76  Williams Street for a re-roof and interior alterations; and    

(d) an August 29, 1991 building permit to a contractor for  Columbus' property at 1 Brookbridge for a re-roof ^[1].   

5. Section 19 of G.L. c. 268A, except as permitted by  paragraph (b),^[2] prohibits a municipal employee from  participating as such an employee in a particular matter in which  to his knowledge he or an immediate family member has a financial  interest.   

6. The decisions to issue the building permits described  in paragraph 4, above, were particular matters.   

7. As set forth in paragraph 4, above, Columbus  participated as a building inspector in those particular matters  by issuing the building permits.   

8. Either Columbus or one of his sons had a financial  interest in each of the foregoing building permits.   

9. Columbus, by issuing the building permits to himself or  his sons, as set forth in paragraph 4, participated in his  official capacity in particular matters in which he knew he or an  immediate family member had a financial interest, thereby  violating G.L. c. 268A, s. 19^[3].   

10. In connection with the above-described conduct, the  Commission has found no evidence of corrupt intent ^[4].   

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

(1) that Columbus pay to the Commission the sum of seven  hundred and fifty dollars ($750) as a civil penalty for  violating G.L. c. 268A, s. 19 as stated above;

(2) that Columbus will act in conformance with the  requirements of G.L. c. 268A, s. 19 in the future; and

(3) that Columbus 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] The Order to Show Cause included a November 19, 1990  building permit to Robert for 86 Pleasant Street for a sun room,  wood burning stove and temporary kitchen. The Commission has  decided not to pursue this matter based on evidence that Columbus  was out of state when the permit issued and that his secretary  typed his name in the signature space in his absence.   

[2] None of those exemptions apply here.   

[3] Columbus was also involved in a significant controversy  in the spring of 1992, concerning a certificate of occupancy for  property owned by Stephen at 76 Williams Street. On January 2,  1992, Columbus obtained a s. 19(b)(1) exemption from the town  administrator to participate as building inspector in an addition  Stephen was constructing at the above property. (Section s.  19(b)(1) provides that it shall not be a violation of s. 19 "if  the municipal employee first advises the official responsible for  appointment to his position of the nature and circumstances of  the particular matter and makes full disclosure of such financial  interest, and receives in advance a written determination made by  that official that the interest is not so substantial as to be  deemed likely to affect the integrity of the services which the  municipality may expect from the employee.") Subsequently,  questions arose concerning the size of the addition and whether  the structure violated zoning regulations. On February 24, 1992,  the town administrator wrote a memorandum to Columbus stating,  "Any future requests for building permits involving your  immediate family (spouse, child, mother, father, sisters and  brothers) will be referred to this office because you are the  only Building Inspector for the Town of Stoneham. I have  previously felt that having only one Building Inspector would  necessitate your issuance of permits for everyone including  family members. Upon reflection and advice, I will appoint an  Acting Building Inspector to issue future building permits to  resolve any question for the potential of either a conflict of  interest or the applicability of a concept of `necessity'  resulting from one Building Inspector." On March 7, 1992, a local  inspector appointed by the town administrator denied Stephen's  application for a certificate of occupancy and issued a cease and  desist order. According to Columbus, on April 7, 1992, Columbus,  relying on advice he received from private legal counsel  indicating he could do so, signed a certificate of occupancy for  76 Williams Street but did not physically deliver the certificate  to Stephen. The town administrator suspended Columbus for  planning to issue the certificate of occupancy in violation of  his directive. On April 14, 1992, Columbus signed a letter to the  town administrator stating, "I am revoking the Occupancy Permit  in recognition of the fact that its issuance was inappropriate  given your legitimate contrary instructions as Town Administrator  not to be involved in this matter involving my son and not on the  specific merits as to whether a Certificate of Occupancy should  be issued." Columbus contends that he signed the letter in order  to get his job back and without the benefit of counsel.   

Although the Order to Show Cause included the above matter,  the Commission has agreed to the proposal of the Enforcement  Division and Columbus not to pursue the matter further because  Columbus showed sensitivity to the conflict issue by originally  seeking and obtaining a s. 19(b)(1) exemption from his appointing  authority, and because the town administrator and Columbus  immediately took action to remedy the situation. The Commission  also notes that Columbus acted in reliance on private legal  advice (albeit incorrect), although we point out, as we have done  in the past, that if a public employee involved in a potentially  serious conflict of interest situation seeks to rely on a legal  opinion as a shield against action by this Commission, the  opinion must be from town counsel, in writing and made a matter  of public record, and forwarded to the Commission for review  pursuant to 930 CMR 1.03(3). In re Lavoie, 1987 SEC 286, 287.   

[4] Corrupt intent is not an element of a s. 19 violation.