Comtois v. State Ethics Commission ( 2023 )


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    21-P-1151                                             Appeals Court
    STEPHEN COMTOIS   vs.   STATE ETHICS COMMISSION.
    No. 21-P-1151.
    Suffolk.        October 13, 2022. - March 21, 2023.
    Present:   Sullivan, Neyman, & Brennan, JJ.
    State Ethics Commission. Conflict of Interest. Administrative
    Law, Conflict of interest, Substantial evidence, Agency's
    interpretation of statute. Municipal Corporations,
    Selectmen.
    Civil action commenced in the Superior Court Department on
    September 16, 2020.
    The case was heard by Debra A. Squires-Lee, J., on motions
    for judgment on the pleadings.
    Meredith G. Fierro for the plaintiff.
    T. Michael McDonald (Eve Slattery, Special Assistant
    Attorney General, also present) for the defendant.
    BRENNAN, J.     After an adjudicatory hearing, the State
    Ethics Commission (commission) determined that the plaintiff,
    Stephen Comtois, committed two violations of the State conflict
    of interest law covering public officials and employees, G. L.
    2
    c. 268A, by using his town position to obtain property the town
    wished to acquire, see G. L. c. 268A, §§ 19, 23 (b) (2) (ii),
    and assessed civil penalties of $10,000 per violation.1     On cross
    motions for judgment on the pleadings, see G. L. c. 30A, § 14;
    G. L. c. 268B, § 4 (k), a Superior Court judge upheld the
    commission's decision.     Comtois filed a timely appeal from that
    judgment.    We affirm.
    1.    Background.    We draw the essential facts from the
    commission's findings of fact.     See McGovern v. State Ethics
    Comm'n, 
    96 Mass. App. Ct. 221
    , 222 (2019).      At all relevant
    times, Comtois was chair of the board of selectmen (board) for
    the town of Brookfield (town).2     In 2016, an elderly widow and
    former resident of the town (owner) sought to donate a parcel of
    undeveloped land (property) to the town.      The town's board of
    assessors (assessors) had valued the property at $43,900 despite
    questions of whether it was a buildable lot.      The assessors had
    also twice denied the owner's requests to reconsider the
    assessment and declined to abate her taxes on the property.
    1   The commission found no violation on a third, unrelated
    claim.
    2 Comtois was also a member of the town's zoning board of
    appeals, a part-time builder, and the owner of a local driving
    school.
    3
    On September 1, 2016, the town's assistant assessor
    notified board members that the owner wished to donate the
    property to the town to avoid further taxation.    Comtois and
    other board members informed the assistant assessor that
    donation of the property required the board "to vote to place
    the matter before [t]own [m]eeting for acceptance."    The
    assistant assessor researched the property's title, reported his
    detailed findings to the board, and recommended that the town
    accept the proposed donation.    On December 13, 2016, Comtois
    voted with all other members of the board to present the
    proposed donation of the property for consideration at the next
    town meeting, with the understanding that if the donation was
    accepted the town would then incur the cost of clearing the
    title.
    When the assistant assessor asked that a member of the
    board send a letter to the owner detailing the board’s decision,
    Comtois offered to call her.    Comtois was given contact
    information for the owner's real estate broker and called the
    broker the following day.   Comtois knew the broker and had
    worked with her on several real estate transactions.    He told
    her that (1) a town meeting had not yet been scheduled, (2) the
    town did not have a warrant article for the proposed donation,
    and (3) the board would not support the proposed donation.       As
    found by the commission, each of these statements was
    4
    "demonstrably untrue."    Comtois also stated he would recommend
    that town meeting not approve the proposed donation, and he
    failed to convey to the broker that the town would pay to clear
    the property's title.
    In the same conversation with the broker, Comtois offered
    to purchase the property himself.    He and the broker began
    discussing terms of the sale, including monetary compensation
    for the property.    These negotiations continued throughout
    January, 2017.    Meanwhile, on December 27, 2016, and January 9,
    2017, the assistant assessor had asked Comtois for updates of
    his discussions with the broker on behalf of the town.
    Comtois's responses were vague, and he did not disclose his
    intention to purchase the property to the assistant assessor or
    any of the board members.    On February 1, 2017, Comtois acquired
    the property from the owner for $200 and his agreement to pay
    "all legal costs necessary to correct any possible defect in the
    legal description required to convey the land."3   Approximately
    eighteen months after the sale, the broker notified the
    commission that Comtois had purchased the property for himself
    after the owner had offered to donate it to the town.     The
    commission initiated an investigation and, after an evidentiary
    3   The legal costs totaled $602.28.
    5
    hearing,4 unanimously found that Comtois had violated the
    conflict of interest law.
    2.   Standard of review.   We review a commission decision
    issued following an adjudicatory proceeding to determine whether
    it is "supported by substantial evidence, free from error or
    unlawful procedure, and consistent with its statutory and
    discretionary authority."   McGovern, 96 Mass. App. Ct. at 227.
    Our analysis is confined to the administrative record.    Id.
    "'Substantial evidence' means such evidence as a reasonable mind
    might accept as adequate to support a conclusion."    G. L.
    c. 30A, § 1 (6).   See Craven v. State Ethics Comm'n, 
    390 Mass. 191
    , 201 (1983).   "A reviewing court may not make a de novo
    determination of the facts, make different credibility choices,
    or draw different inferences from the facts as found by the
    commission."   McGovern, supra.   Although we afford "substantial
    deference" to the commission on issues involving statutory
    interpretation, "principles of deference . . . are not
    principles of abdication. In the end, interpretation of a
    statute is a matter for the courts" (citations omitted).      Id.
    4 A single commissioner appointed to act as the presiding
    officer by the full five-member commission conducted the
    hearing. See 930 Code Mass. Regs. § 1.01(1)(c) (2010). Four
    witnesses, including Comtois, testified and thirty-two exhibits
    were submitted by agreement of the parties.
    6
    3.   Discussion.    a.   Section 19 violation.   G. L. c.   268A,
    § 19 (a), prohibits a municipal employee from "participat[ing]
    as [a municipal] employee in a particular matter in which to his
    knowledge he . . . has a financial interest."     Comtois contends
    that (1) his "participation" was limited to his vote as a board
    member to submit the proposed donation to town meeting; (2) the
    "particular matter" was the board's decision on December 13,
    2016, whether to submit the donation to town meeting; and (3) a
    "financial interest" is a "right, claim, title, or legal share"
    that must exist simultaneously with a municipal employee's
    "participation."    In essence, he argues that the commission
    erred in its legal interpretation and application of "the
    interdependent meanings of 'participate,' 'particular matter,'
    and 'financial interest.'"    Graham v. McGrail, 
    370 Mass. 133
    ,
    137 (1976).   We disagree.
    i.   Participate.   Under the conflict of interest law,
    "participate" means involvement "personally and substantially
    . . . through approval, disapproval, decision, recommendation,
    the rendering of advice, investigation or otherwise."        G. L.
    c. 268A, § l (j).   Comtois's assertion that his participation
    ended with his vote is inconsistent with the broad list of
    disjunctives in the plain language of the statute.     See
    Worcester v. College Hill Props., LLC, 
    465 Mass. 134
    , 138 (2013)
    ("Where the language of a statute is clear and unambiguous
    7
    . . . courts enforce the statute according to its plain wording"
    [quotations and citation omitted]).   We discern no error in the
    commission's finding that Comtois's "participation" not only
    involved discussing the property and voting at the December 13,
    2016, board meeting, but also included volunteering to contact
    the owner, contacting the broker on behalf of the board, and
    communicating with the assistant assessor concerning the status
    of his dealings with the broker.   See McGovern, 96 Mass. App.
    Ct. at 227.
    ii.   Particular matter.   In relevant part, G. L. c. 268A,
    § 1, defines a "[p]articular matter" as "any judicial or other
    proceeding, application, submission, request for a ruling or
    other determination, contract, claim, controversy, charge,
    accusation, arrest, decision, determination, [or] finding."
    G. L. c. 268A, § l (k).   We are not persuaded by Comtois's
    argument that the commission improperly interpreted the statute
    by applying it to conduct beyond the board's vote.   Again, the
    range of "matters" identified by the statute supports the
    commission's determination that the "particular matter" here was
    the town's entire process of deciding on and implementing a
    response to the proposed donation of the property.   See College
    Hill Props., LLC, 
    465 Mass. at 138
    .   It included the assistant
    assessor's investigation of the property, the board's discussion
    and vote to submit the proposed donation of the property to town
    8
    meeting, communication with the broker (purportedly) on behalf
    of the town, and communications between Comtois and the
    assistant assessor regarding the status of Comtois's dealings
    with the broker.
    iii.   Financial interest.   The conflict of interest law
    does not define the term "financial interest."   See G. L.
    c. 268A, § 1; Moskow v. Boston Redev. Auth., 
    349 Mass. 553
    , 567
    (1965), cert. denied, 
    382 U.S. 983
     (1966) ("The statute is
    deficient in not containing a definition of 'financial
    interest'").   "A fundamental principle of statutory
    interpretation 'is that a statute must be interpreted according
    to the intent of the Legislature ascertained from all its words
    construed by the ordinary and approved usage of the language,
    considered in connection with the cause of its enactment, the
    mischief or imperfection to be remedied and the main object to
    be accomplished, to the end that the purpose of its framers may
    be effectuated.'"   Harvard Crimson, Inc. v. President & Fellows
    of Harvard College, 
    445 Mass. 745
    , 749 (2006), quoting Hanlon v.
    Rollins, 
    286 Mass. 444
    , 447 (1934).
    Our analysis of the meaning of "financial interest" under
    the conflict of interest law starts, as with any undefined
    statutory term, by looking at the ordinary meaning of the words
    in the contested phrase.   See Rosenberg v. JP Morgan Chase &
    Co., 
    487 Mass. 403
    , 415 (2021) ("Where . . . a statutory term is
    9
    undefined, we look to its ordinary meaning").    In common usage,
    "financial" is defined as "relating to finance."    Merriam-
    Webster's Collegiate Dictionary 469 (11th ed. 2020).    As
    relevant here, "finance" means "money or other liquid
    resources."   
    Id.
       The definition of "interest" includes "right,
    title, or legal share in something"; "stake"; and "the state of
    being concerned or affected [especially] with respect to
    advantage or well-being."    Webster's Third New International
    Dictionary 1178 (2002).    Although "right," "title," "legal
    share," and "stake" without modification are extant nouns, being
    "concerned" or "affected" in the context of "advantage" or
    "well-being" are not moored in the present.    Thus, the ordinary
    meaning of the words "financial interest" contains temporal
    ambiguity.    Where there is doubt or ambiguity about the precise
    meaning of a statutory provision, we turn to extrinsic sources
    to determine legislative purpose and intent.    See College Hill
    Props., LLC, 
    465 Mass. at 139
    .
    We begin with the statute's history and context. See
    Ajemian v. Yahoo!, Inc., 
    478 Mass. 169
    , 182 (2017), cert. denied
    sub nom. Oath Holdings, Inc. v. Ajemian, 
    138 S. Ct. 1327 (2018)
    ("To the extent there is any ambiguity in the statutory
    language, we turn to the legislative history" as guide to
    legislative intent).    The conflict of interest law was enacted
    as part of "comprehensive legislation . . . [to] strike at
    10
    corruption in public office, inequality of treatment of citizens
    and the use of public office for private gain."   Everett Town
    Taxi, Inc. v. Aldermen of Everett, 
    366 Mass. 534
    , 536 (1974),
    quoting Report of the Special Commission on Code of Ethics, 1962
    House Doc. No. 3650, at 18.   It was rooted in the Legislature's
    concern with the deterioration of the moral fiber of State
    government following a major scandal involving the Metropolitan
    District Commission in 1961, and the fear that this moral decay
    would "permeate all levels of government."   Report Submitted by
    the Legislative Research Council Relative to Conflict of
    Interest, 1961 Senate Doc. No. 650, at 14.   See 1962 House Doc.
    No. 3650, at 9-10.   A paramount concern for the Legislature was
    the risk inherent in government employment placing an employee
    in a position where "for some advantage to be gained for
    himself, he finds it difficult or impossible to devote himself
    with complete energy and loyalty to the public interest."    1961
    Senate Doc. No. 650, at 15.   Thus, the statute "seeks to combat
    secret dealings, influence peddling, inequality of treatment of
    citizens, and other activities where a public official or
    employee is confronted with a conflict of interest."   McGovern,
    96 Mass. App. Ct. at 228.
    Against this historical backdrop, we reject Comtois's
    contention that a government employee's "financial interest"
    must be construed narrowly to exclude any potential future
    11
    financial interest.   Such an interpretation would be contrary to
    the Legislature's intent, to logic, and to sound public policy.
    See Spencer v. Civil Serv. Comm'n, 479 Mass 210, 216 (2018)
    (primary responsibility in interpretation is to "effectuate the
    intent of the Legislature in enacting [the statute]" [citation
    omitted]); Harvard Crimson, Inc., 
    445 Mass. at 749
     (statute must
    be interpreted "so as to render the legislation effective,
    consonant with sound reason and common sense").     Moreover, a
    broader interpretation that acknowledges that future advantage
    was included in the meaning of "financial interest" under G. L.
    c.   268A, is more consonant with the premise that the "conflict
    of interest law was enacted as much to prevent giving the
    appearance of conflict as to suppress all tendency to
    wrongdoing" (quotation and citation omitted).     Starr v. Board of
    Health of Clinton, 
    356 Mass. 426
    , 429 (1969).
    Our conclusion that the definition of "financial interest"
    under the conflict of interest law is not confined to a right,
    title, legal share, or stake that is already vested at the time
    of "participation" in a "particular matter" finds further
    purchase in the text of the statute and case law interpreting
    its various provisions.   See Malloy v. Department of Correction,
    
    487 Mass. 482
    , 496 (2021), quoting Pentucket Manor Chronic
    Hosp., Inc. v. Rate Setting Comm'n, 
    394 Mass. 233
    , 240 (1985)
    ("we look not only to the specific words at issue but also to
    12
    other sections [of the statute], and 'construe them together
    . . . so as to constitute an harmonious whole consistent with
    the legislative purpose'").   For example, G. L. c. 268A, §§ 2,
    3, which deal with bribery and the offering or acceptance of
    gifts that are meant to influence an employee, contain terms
    such as "promises," "solicits," "agrees to receive," "asks,"
    "demands," and "seeks," all of which in context speak to a
    potential future benefit.   Section 19 (a) refers to
    "negotiating" and "prospective employment," also indicating that
    the Legislature contemplated future aspects for the behavior it
    proscribed.   In addition, the Supreme Judicial Court has held
    that the conflict of interest law was violated in situations
    where a public employee participated in a particular matter at a
    time when the financial interest had not fully ripened.   See
    Craven v. State Ethics Comm'n, 
    390 Mass. 191
    , 201-202 (1983)
    (organization’s intent to pay trust of which members of State
    employee’s immediate family were beneficiaries involved
    financial interest for purposes of G. L. c. 268A, § 6, State
    employee equivalent of § 19 municipal employee provision);
    Sciuto v. Lawrence, 
    389 Mass. 939
    , 948-949 (1983) (municipal
    employee's promotion of brother involved financial interest for
    § 19 purposes).
    Of course, the definition of "financial interest"
    pertaining to proscriptions against ethical violations cannot be
    13
    without temporal boundary.   See Commonwealth v. Dunn, 
    43 Mass. App. Ct. 58
    , 62 (1997) (statute must be "set forth with
    reasonable clarity and provide adequate notice of the conduct
    that the Legislature wishes to proscribe").    Here, we need look
    no further than, and are guided by, the commission for an
    interpretation of the parameters of this phrase.    Indeed, "[t]he
    commission, as the State agency charged with administering G.L.
    c. 268A, is due 'substantial deference in its reasonable
    interpretation of the statute'" (citation omitted).    McGovern,
    96 Mass. App. Ct. at 227.    Since 1984, the commission has
    interpreted "financial interest" as applying "where it is
    obvious or reasonably foreseeable that one's private interests
    will be affected by one's official actions."    Conflict of
    interest opinion No. EC-COI-84-98 (August 14, 1984), 1984
    Massachusetts State Ethics Commission Enforcement Actions &
    Advisory Opinions, at 82.    The commission's formulation finds
    support in Federal courts' interpretation of 
    18 U.S.C. § 208
    ,
    the Federal counterpart to § 19 of our State conflict of
    interest law.5   See United States v. Gorman, 
    807 F.2d 1299
    , 1303
    5 The Federal conflict of interest statute prohibits certain
    Federal officers and employees from
    "participat[ing] personally and substantially as a
    Government officer or employee, through decision, approval,
    disapproval, recommendation, the rendering of advice,
    investigation, or otherwise, in a judicial or other
    proceeding, application, request for a ruling or other
    14
    (6th Cir. 1986), cert. denied, 
    484 U.S. 815
     (1987) ("[a]
    financial interest exists . . . where there is a real . . . as
    opposed to a speculative . . . possibility of benefit or
    detriment").   See also United States v. Mississippi Valley
    Generating Co., 
    364 U.S. 520
    , 557 (1961) (similarly interpreting
    predecessor statute to § 208).
    Upon consideration of the ordinary usage of the statutory
    language, the legislative history and purpose of the conflict of
    interest law, the nature and function of the commission, and the
    definition of a financial interest under Federal case law, we
    are satisfied that the commission's interpretation of the phrase
    "financial interest" is reasonable.    We therefore hold that a
    financial interest under G. L. c.     268A includes "a financial
    interest of any size, either positive or negative, as long as it
    is direct and immediate or reasonably foreseeable" (footnotes
    omitted).   Conflict of interest opinion No. EC-COI-02-2 (January
    31, 2002), 2002 Massachusetts State Ethics Commission Advisory
    Opinions & Enforcement Actions, at 777.    Under this formulation,
    we conclude that the administrative record amply supports the
    determination, contract, claim, controversy, charge,
    accusation, arrest, or other particular matter in which, to
    his knowledge, he . . . has a financial interest" (emphasis
    added).
    
    18 U.S.C. § 208
    (a).
    15
    commission's finding that Comtois violated § 19 (a), and that he
    "has not met his burden to show that the commission decision was
    marred by [legal] defect or infirmity."   McGovern, 96 Mass. App.
    Ct. at 227.
    b.   Section 23 violation.   General Laws c. 268A, § 23 (b)
    (2) (ii), provides that
    "[n]o current officer or employee of a state, county or
    municipal agency shall knowingly, or with reason to know
    . . . use or attempt to use such official position to
    secure for such officer, employee or others unwarranted
    privileges or exemptions which are of substantial value and
    which are not properly available to similarly situated
    individuals."
    To conclude that Comtois violated this provision the commission
    was required to find, by a preponderance of the evidence, that
    he (1) was a municipal employee; (2) knowingly or with reason to
    know used or attempted to use his official position; (3) to
    secure for himself or others an unwarranted privilege or
    exemption; (4) of substantial value; (5) which was not properly
    available to similarly situated individuals.    See G. L. c. 268A,
    § 23 (b) (2) (ii); McGovern, 96 Mass. App. Ct. at 225 n.10.6
    Comtois does not challenge the commission's findings that he was
    a municipal employee who knowingly used his official position to
    6 See also Matter of Edward McGovern,   Docket No. 14-0006
    (January 5, 2016), 2016-2017 Massachusetts   State Ethics
    Commission Advisory Opinions & Enforcement   Actions, at 2592, the
    commission decision underlying our opinion   in McGovern, 96 Mass.
    App. Ct. at 221.
    16
    purchase the property, which was "of substantial value."
    However, he argues that the commission committed legal error by
    "conflat[ing]" the elements and dispensing with the requirement
    that the "privilege" he secured be "unwarranted" and "not
    properly available to similarly situated individuals."     We
    disagree.
    The commission determined that Comtois's purchase of the
    property was an "unwarranted privilege because, for his own
    selfish purposes, he used his position as [c]hair of the [b]oard
    to 'sabotage' [the owner's] decision to donate the [p]roperty to
    the [t]own and the [t]ownspeople's opportunity to decide whether
    to accept it."   Specifically, the commission found that Comtois
    used his official position when he (1) voted to present the
    question whether the town should accept the donation of the
    property for consideration at the next town meeting; (2) offered
    to call the broker on behalf of the town and misled her into
    believing the board would not accept the donation; and (3)
    provided misleading status reports regarding his discussions
    with the broker to the assistant assessor.   The commission
    relied on its own previous determination that the "use of one's
    position for private gain may be an unwarranted privilege."
    Thus, it concluded that Comtois's private purchase of the
    property was an unwarranted privilege because it was "lacking in
    adequate or official support . . . having no justification;
    17
    [and] groundless."   Separately, the commission also found that
    the "privilege" was not available to similarly situated
    individuals.   Although it was "public knowledge" that the owner
    wanted to donate the property to the town, no one else had the
    authority or was "in a position" to mislead the broker that the
    donation was unlikely to be accepted by the town.     In essence,
    the commission found that Comtois was in the unique position to
    undermine the process and secure the purchase of the property
    before town meeting voted on whether to accept it as a donation.
    Therefore, the opportunity was not available to others who might
    have a "similarly situated" interest in purchasing the property.
    Contrary to Comtois's assertion that the commission
    impermissibly combined the elements of G. L. c. 268A, § 23 (b)
    (2) (ii), to prove a violation, we find no error of law in the
    commission's decision because substantial evidence supported
    each required prong.
    4.   Conclusion.   For the reasons stated, we agree with the
    Superior Court judge that the commission's decision concluding
    that Comtois violated G. L. c. 268A, §§ 19, 23 (b) (2) (ii), was
    supported by substantial evidence, not arbitrary or capricious,
    or based on error of law.   Accordingly, we affirm the judgment
    entered in the Superior Court upholding the decision and order
    of the commission.
    So ordered.