Date: | 02/29/2000 |
---|---|
Organization: | State Ethics Commission |
Docket Number: | 601 |
- This page, In the Matter of Robert S. McKinnon, is offered by
- State Ethics Commission
Settlement In the Matter of Robert S. McKinnon
Table of Contents
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
Page 959
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
Page 960
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.