Settlement  In the Matter of Russell Smith

Date:	10/19/1993
Organization:	State Ethics Commission
Docket Number:	473

Disposition Agreement

This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Russell
Smith (Smith) 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 June 22, 1993, 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 Smith. The
Commission has concluded its inquiry and, on October 19, 1993,
found reasonable cause to believe that Smith violated G.L. c.
268A.

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

Findings of Fact

1. Smith was, during the time relevant, the Chairman of the
Gay Head Board of Selectmen

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(Selectmen). As such, Smith was a municipal employee as that term
is defined in G.L. c. 268A, s. 1.

2. Smith's brother, Hollis Smith (Hollis), also lives in
Gay Head.

3. On July 1, 1992, the federal Bureau of Alcohol, Tobacco
and Firearms (ATF) executed a warrant to search Hollis's home.
The search resulted in the seizure of narcotics and guns, and
criminal charges being brought against Hollis.

4. The Selectmen serve as the police commissioners for the
town. As such, the Selectmen participate in hiring, firing and
disciplinary actions concerning police personnel and have the
authority to investigate, in conjunction with the police chief,
police action where necessary.

5. Shortly after the ATF search, Smith indicated to others
in town, including the other two selectmen and the police chief,
that he felt a certain Gay Head police officer and the Island
Drug Task Force improperly initiated the action against his
brother.

6. On July 13, 1992, some Gay Head residents complained at
the Selectmen's meeting about the ATF search.

7. On August 10, 1992, the Selectmen met in executive
session. Minutes from that meeting indicate that Smith asked the
police chief for an update concerning the ATF search of Hollis's
home and an explanation as to why a certain police officer was
chosen to represent the town in the matter. The minutes also
indicate that Smith wanted to know who issued the warrant in the
case and how ATF knew there was a .222 caliber firearm in
Hollis's home. According to the minutes, the other two selectmen
felt that it was not the selectmen's place to question the police
concerning the validity of the search. The discussion therefore
ended.

8. After the meeting, town counsel told Smith there was a
conflict of interest if he participated in matters involving the
ATF search. Smith was advised to avoid any matter involving the
search warrant executed at Hollis's home. Smith agreed to have no
further involvement. The selectmen took no further action
concerning the matter.

Conclusions of Law

9. Except as otherwise permitted in that section, s. 19 of
G.L. c. 268A prohibits a municipal employee from participating as
such an employee in a particular matter in which to his knowledge
an immediate family has a financial interest [1].The potential or
actual controversy concerning the ATF search and any subsequent
action the selectmen acting as police commissioners may have had
to take concerning their police officers' involvement in that
action was a particular matter [2]. As Hollis was facing pending
criminal charges as a result of the ATF search, he had a
financial interest in the Selectmen's actions concerning the
search because his pending criminal court case could have been
affected (either by discipline taken against the officer involved
or the questioning of the validity of the process). At all
relevant times, Smith was aware of his brother's financial
interest. Smith participated [3] in the matter by questioning, as
a selectman, the ATF search and process which resulted in his
brother facing criminal charges.

10. By acting as described above, Smith participated as a
selectman in a particular matter in which to his knowledge his
brother had a financial interest. Therefore, Smith violated s.
19.

Resolution

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

(1) that Smith pay to the Commission the sum of five hundred
dollars ($500) as a civil penalty for violating G.L. c.
268A, s. 19;

(2) that Smith will act in conformance with requirements of
G.L. c. 268A in his future conduct as a municipal employee;
and

(3) that Smith 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] None of the exceptions in s. 19 is relevant here.

[2] G.L. c. 268A, s. 1(k) defines "particular matter" as any
judicial or other proceeding, application, submission, request
for a ruling or other determination, contract, claim,
controversy, charge,

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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.

[3] "Participate," 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. 1(j).