Settlement  In the Matter of Robert S. McKinnon

Date:	02/29/2000
Organization:	State Ethics Commission
Docket Number:	601

Disposition Agreement

The State Ethics Commission ("Commission") and Robert S.
McKinnon ("McKinnon") enter into this Disposition Agreement
("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, s.40).
On November 18,1998, the Commission initiated, pursuant to G.L. c.
268B, s.40), a preliminary inquiry into possible violations of the
conflict of interest law, G.L. c. 268A, by McKinnon. The Commission
has concluded the inquiry and, on February 23, 2000, found
reasonable cause to believe that McKinnon violated G.L. c. 268A.

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

Findings of Fact

1. McKinnon is a member of the Board of State Examiners of
Plumbers and Gasfitters ("the Board").[1] Among its other
functions, the nine member Board reviews and approves plumbing
products for use in the Commonwealth, promulgates the state
Plumbing and Gasfitting Code ("the Code") and grants variances to
the Code. McKinnon's Board position is unpaid.[2]

2. Since 1992, McKinnon has worked privately for the Stop &
Shop Supermarket Company ("Stop & Shop"). In his private work for
Stop & Shop, McKinnon inspects the plumbing in the floors of new
Stop & Shop stores under construction in Massachusetts prior to the
concrete being poured.[3] Stop & Shop pays McKinnon $40 per hour
for this work. During the period here relevant, McKinnon earned
between $500 to $1,000 per month working privately for Stop &
Shop.[4]

3. In 1994, Stop & Shop was building a Stop & Shop superstore
in Pittsfield[5] A dispute arose between Stop & Shop and the
Pittsfield plumbing inspector as to whether two toilet rooms were
required on the store's 1,400 square foot mezzanine level. The
Pittsfield inspector contended that the mezzanine level was a
separate floor requiring its own toilet facilities under the Code.

4. At a Board meeting on August 3, 1994, while he was an
unpaid appointed advisor to the Board, McKinnon requested
clarification by the Board of the term "mezzanine" as used in the
Code. McKinnon argued at the meeting that, for Code purposes, the
mezzanine at Stop & Shop's Pittsfield store was not a separate
floor requiring its own facilities but rather part of the floor
below it.[6] The Board then voted that it did not agree with the
Pittsfield inspector's view. As a result, Stop & Shop was not
required to install the two toilet rooms on the mezzanine level of
the Pittsfield store.[7]

5. At a Board meeting on September 6, 1995, the Board
discussed certain proposed amendments to the Code, including a
proposed new definition of mezzanine which limited such areas to
1,200 square feet, with the result that mezzanine levels over 1,200
feet (such as the 1,400 square foot mezzanine at the Pittsfield
Super Stop & Shop superstore) would be considered separate floors
requiring two toilet rooms. McKinnon, as a Board member, argued
against the mezzanine-related amendment.[8] On March 6, 1996,
McKinnon participated in a unanimous Board vote not to approve the
proposed mezzanine-related amendment, together with a variety of
other proposed amendments.

6. In 1997, Stop.& Shop decided to incorporate a vacuum
drainage system for the food storage cases in its new stores.[9]
While vacuum drainage systems were

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then allowed under the Code, Stop & Shop wanted to use a system
with PVC (polyvinyl chloride) piping instead of the copper piping required
by the Code, partly because the PVC was less expensive to purchase
and install.

7. In early 1997, McKinnon assisted Stop & Shop in gaining the
Board's approval of the temporary installation of a vacuum drainage
system for food storage cases at its Braintree warehouse for
testing and evaluation. In a letter to the Board, dated April 28,
1997, McKinnon wrote, "I have been asked by Stop & Shop
Supermarkets to present to you a proposal to install a vacuum
system in accordance with 248 CMR section 2.24 in an existing
warehouse in Braintree, MA for testing and evaluation." Stop &
Shop's proposal included the request to be allowed to use PVC
piping (instead of copper piping).

8. At its May 7, 1997, meeting, the Board discussed Stop &
Shop's proposal. McKinnon participated in the Board's discussion as
a Board member and argued in favor of Stop & Shop's proposal.
McKinnon, however, abstained from the Board's vote to allow the
proposed vacuum drainage system installation with PVC piping. There
was no opposition to Stop & Shop's proposal.

9. Subsequent to the Board's May 7, 1997 approval, Stop & Shop
tested and evaluated vacuum drainage systems from two competing
manufacturers: Envirovac and Jet-Vac.

10. In late 1997, Envirovac petitioned the Board for approval
of the components of its vacuum drainage system for use in
Massachusetts. Envirovac's petition included the request that the
Board approve the use of PVC piping in the vacuum drainage system.
At a December 3, 1997 Board meeting, McKinnon moved that the Board
provisionally approve for a one year period the Envirovac vacuum
drainage system components with a limited use of PVC piping.[10]
McKinnon, however, abstained from the Board's vote on his motion.

11. On January 30, 1998, town of Norwood Plumbing and Gas
Inspector Jim Capaldo ("Capaldo") wrote a letter to a plumber
working for Stop & Shop concerning a proposed vacuum drainage
system installation using PVC piping at a Stop & Shop facility in
Norwood. Capaldo's letter questioned whether the Norwood facility
was a Board-approved test site for the vacuum drainage, system and
whether the Board had approved the components and installation of
the system. Capaldo advised Stop & Shop's plumber that he should
start proceedings to obtain a variance from the Board for the
vacuum drainage system. A copy of Capaldo's letter was sent to the
Board and its executive secretary, Louis J. Visco ("Visco").

12. At the Board's February 4, 1998 meeting, McKinnon read
Capaldo's letter to the Board. Thereafter, McKinnon prepared a
response letter to Capaldo at Visco's request. The McKinnon-drafted
letter, dated February 5, 1998, approved by the Board and signed by
Visco, responded point-by-point to the questions raised by Capaldo
and advised, "Please understand this system has been approved and
no variance is required nor shall one be issued."

13. As a Board member and as an advisor to the Board, McKinnon
is, and was at all times here relevant, a state employee.[11]
Because he is uncompensated as a Board member and was uncompensated
as a Board advisor, McKinnon is and was further a "special state
employee."[12]

Conclusions of Law

14. Section 4(c) of G.L. c. 268A, in relevant part, prohibits
a state employee from acting as agent for anyone other than the
commonwealth or a state agency in connection with a particular
matter[13] in which the commonwealth or state agency is a party or
has a direct and substantial interest.[14]

15. Stop & Shop's early 1997 request for Board approval of its
proposed installation of the vacuum drainage system with PVC piping
for testing and evaluation was a particular matter in which the
commonwealth was a party or had a direct and substantial interest,
and was a subject of McKinnon's official responsibility as a Board
member.[15]

16. McKinnon acted as Stop & Shop's agent in connection with
the vacuum drainage system particular matter by presenting Stop &
Shop's proposal to install the system in his April 28, 1997 letter
to the Board.

17. Thus in April 1997, McKinnon acted as agent for someone
other than the commonwealth or a state agency in connection with a
particular matter which was within his official responsibility as
a state official and in which the commonwealth was a party or had
a direct and substantial interest. In so acting, McKinnon violated
G.L. c. 268A, s.4.[16]

18. Except as the section otherwise permits, G.L. c. 268A,
s.61[17] prohibits a state employee from participating as such in
a particular matter in which to his knowledge, a business
organization in which he is serving as an employee has a financial
interest.[18]

19. At the times here relevant, McKinnon was a Stop & Shop
employee within the meaning of G.L. c. 268A, s.6.[19]

20. Each of the above-described plumbing issues that came
before the Board in the years 1994 through 1998 were particular
matters. Stop & Shop had a financial interest in each of these
particular matters.

21. In August 1994 as a board advisor, and in September 1995,
March 1996, May and December 1997

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and February 1998 as a Board member, McKinnon participated in each
of the above-described particular matters of interest to Stop & Shop by,
as set forth above, at various Board meetings involving himself personally
and substantially in Board discussions, in one case voting, in one case
making a motion for Board action and in another case drafting a
letter for the Board's executive secretary concerning the matters.
Each time he so participated as a Board advisor or as a Board
member, McKinnon knew that, Stop & Shop, his private employer, had
a financial interest in the particular matter at issue.

22. Therefore, by participating as a Board member as described
above, McKinnon participated as a state employee in particular
matters in which to his knowledge his private employer had a
financial interest. Each time he did so, McKinnon violated G.L. c.
268A, s.6.[21]

23. McKinnon fully cooperated with the Commission's
investigation of this matter.

24. The Commission is aware of no evidence that McKinnon knew
at the time of his above-described actions concerning Stop & Shop
that his actions violated G.L. c. 268[22]

Resolution

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

(1) that McKinnon pay to the Commission the sum of three
thousand dollars ($3,000.00) as a civil penalty for violating
G.L. c. 268A, s.4 and s.6; and

(2) that McKinnon 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 proceeding to which the Commission is or may be a
party.

[1] McKinnon was appointed to the Board by the Secretary of
Public Safety in September 1994. McKinnon previously served as a
Board member from June 1989 to May 1992, and was an unpaid
appointed advisor to the Board from May 1992 to September 1994.

[2] Until his July 1, 1998 retirement, McKinnon's primary
employment was as the plumbing and gas inspector for the town of
Dedham.

[3] Stop & Shop has three or four such inspectors working in
various regions in New England. McKinnon is one of two Stop & Shop
inspectors assigned to Massachusetts.

[4] During the relevant period, McKinnon's work for Stop &
Shop constituted nearly all of his privately compensated work. Stop
& Shop's payments to McKinnon were reported for tax purposes on
federal 1099-MISC forms as "non-employee compensation."

[5] McKinnon did not do inspections for Stop & Shop at the
Pittsfield store.

[6] According to McKinnon, in making these arguments, he acted
in his capacity as a Board advisor and not on behalf of Stop &
Shop, and based his arguments on his understanding of the
requirements of the Massachusetts Building Code ("Building Code').
Also according to McKinnon, he was not influenced in his arguments
by the fact that the mezzanine issue came up in connection with
Stop & Shop and he was not trying to help the company in making the
arguments.

[7] The Board's decision allowed Stop & Shop to avoid delay
and several thousand dollars in added construction costs at the
Pittsfield store. In addition, had the Board agreed with the
Pittsfield inspector, the Pittsfield store might have become a
precedent for requiring Stop & Shop to install two toilet rooms in
the mezzanines of all its subsequently constructed superstores in
Massachusetts. In McKinnon's view, requiring the two toilets on the
mezzanine level would have put the Board in conflict with the
Building Code and would not have been a valid precedent. It is
unnecessary, however, for the purposes of this agreement to
determine whether McKinnon is correct. Valid or not, a Board
decision to require Stop & Shop to put two toilet rooms on the
mezzanine level of the Pittsfield store would have cost Stop & Shop
time and expense to either comply with or to seek to reverse or
overturn.

[8] Again according to McKinnon, he based his arguments solely
on his understanding of the requirements of the Building Code.

[9] The vacuum drainage system, in which the pipes are
suspended from the ceiling, reduces the need for underground
plumbing. The vacuum system thus gives Stop & Shop more flexibility
in locating and relocating food storage cases and substantially
reduces the cost of moving the cases.

[10] McKinnon moved to approve the Envirovac components with
PVC piping to be used to above the refrigerated cases being
drained, at which point the piping would be required to transition
from PVC to copper.

[11] "State employee" means, in relevant part, "a person
performing services for or holding an office, position, employment,
or membership in a state agency, whether by election, appointment
contract of hire or engagement, whether serving with or without
compensation on a full, regular, part-time, intermittent or
consultant basis." G.L. c. 268A, s.1(g).

[12] "special state employee" is a state employee: "(1) who is
performing services or holding an office, position, employment or
membership for which no compensation is provided, or (2) who is not
an elected official and (a) occupies a position which, by its
classification in the state agency involved or by the terms of the
contract or conditions of employment permit personal or private
employment during normal working hours, provided that disclosure of
such classification or permission filed in writing with the state
ethics commission prior to the commencement of any personal or
private employment, or (b) in fact does not earn compensation as a
state employee for an aggregate of more than eight hundred hours
during the preceding three hundred

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and sixty-five days. For this purpose compensation by the day shall be considered as the equivalent to compensation for seven hours per day.
A special state employee shall be in such status on days for which he
is not compensated as well as on days on which he earns compensation."
G.L. c. 268A, s.1(6).

[13] "Particular matter" means any judicial or other
proceeding, application, submission, request for 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).

[14] A special state employee is subject to G.L. c. 268A,
s.4(c) "only in relation to a particular matter (a) in which has at
anytime participated as a state employee, or (b) which is or within
one year has been a subject of his official responsibility, or (c)
which is pending the state agency in which he is serving. Clause
(c) of the preceding sentence shall not apply in the case of a
special state employee who serves no more than sixty days during
any period of three hundred and sixty five consecutive days."

[15] McKinnon also participated in the particular matter as a
Board member on May 7, 1997, as set forth above in paragraph number
8.
[16] The Commission is not aware of any evidence that McKinnon
received any compensation from Stop & Shop for acting as its agent
before the Board or in relation to any of the above-described
matters concerning Stop & Shop before the Board.

[17] None of the s.6 exemptions apply in this case.

[18] "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. 133,345 N.E. 2d 888 (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. See EC-COI-84-96.

[19] At the times here relevant, McKinnon did not consider
himself to be a Stop & Shop employee, but rather thought of himself
as a consultant or independent contractor. For G.L. c. 268A
purposes, however, the term "employee" includes consultants and
independent contractors where, as in this case, a significant
portion of the subject's annual compensation from all of his
private consulting or independent contracting generally is derived
from, or a significant portion of the subject's time is spent on,
the consultant or independent contractor relationship in question.
See, e.g., In re Burgess, 1992, SEC 570, 573.

[20] "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.16).

[21] McKinnon demonstrated some awareness of and sensitivity
to the conflict of interest law by abstaining from Board votes on
matters of interest to Stop & Shop on May 7 and December 3, 1997.
McKinnon's abstention from the Board's votes was, however,
insufficient to avoid his violation of s.6 where he participated in
the Board's discussion and made the motion (in one case) leading to
the Board's vote.

[22] Ignorance of the law is not a defense to a violation of
the conflict of interest law. In re Doyle, 1980 SEC 11, 13; see
also Scola v. Scola, 318 Mass. 1, 7 (1945).

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