Comtois v. State Ethics Commission

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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.