Ethically challenged in Randolph

RANDOLPH-The state’s conflict-of-interest law provides little wiggle room for volunteer members of town boards, as two Randolph officials found out this year–the hard way. In June, Philip Nelson, a landscaper who was also a member of the town’s Landscape Review Board, agreed to pay a $1,750 fine to the State Ethics Commission–the biggest fine levied statewide against a volunteer town official in the past three years–after he represented two clients before the body that he serves on.

Several months earlier, planning board member Richard Goodhue agreed to pay a fine for violating the conflict-of-interest law, in connection with his work on construction projects that had come before the board. In a third unrelated incident, Randolph police lieutenant Robert Churchill agreed to a fine for giving favorable treatment to the son of a department colleague in a criminal matter.

While Churchill was charged with mishandling his duties as a full-time municipal employee, Nelson and Goodhue found themselves whipsawed between their private business interests and their civic duties as volunteer public servants appointed by the town’s board of selectmen. In the process, they ran afoul of a state conflict-of-interest law they say they did not fully understand.

The statute requires both public employees and “special” municipal employees–i.e., local volunteer board and committee members–to set aside allegiances to their businesses, clients, families, and friends in any matter that may come under their jurisdiction, thereby putting the town’s interests first. While the conflict-of-interest law, which is enforced civilly by the ethics commission and criminally by the attorney general, helps to set a standard for clean government, it also puts a range of municipal officials–including volunteer board members–in towns across the Commonwealth in sticky situations.

The State Ethics Commission consists of five members who are appointed to staggered, five-year terms. Three commissioners are selected by the governor, one by the secretary of state, and one by the attorney general. No more than two of the gubernatorial appointments–and no more than three commissioners as a whole–may be from the same political party. The commissioners serve part-time, and are paid $75 per day.

The commission staff not only enforces but provides education on the state’s conflict-of-interest law, running seminars on ethics laws around the state. The commission receives nearly 5,000 requests for advice each year. The advice is free and confidential, but must be about a non-hypothetical, pending matter.

The commission also reviews 800 to 1,000 confidential complaints each year and then investigates those where the conflict-of-interest law may have been violated. If a violation seems to have occurred, the commission may authorize a formal investigation, resulting in a public hearing and a commission ruling–or, as in the three Randolph cases this year, a disposition agreement negotiated with the public official. From 1997 to 1999, the commission handed out 34 public enforcement actions, 13 of them against local volunteer board members and 13 against municipal employees. The enforcement actions against board members included six citations and seven fines, ranging from $250 to $1,500.

Boston College Law School professor George Brown, chairman of the ethics commission from 1994 to 1998, feels that the law–passed in 1962 and modeled in part on a federal law approved in the early days of the Kennedy administration–has made life difficult for volunteer local officials. “Back then, Massachusetts was caught up in the whole Kennedy mystique, but the federal model doesn’t work well for volunteer board members,” according to Brown, because people holding federal positions don’t have to confront their clients and neighbors on a daily basis or put aside their business interests while they serve in unpaid posts. Brown and Thomas Kiley, a Boston-based defense attorney, are co-chairing a Boston Bar Association task force on ethics in public service which is drafting changes to the conflict-of-interest law, including how it affects local volunteer board members.

Drumming up business

According to the settlement agreements with the ethics commission, here’s what happened in Randolph: Nelson, owner of Nelson Landscaping and Garden Center, which has operated in Randolph for nearly 40 years, got into trouble for doing work on two projects he reviewed as a member of the landscape review board. In November 1996, Nelson signed off on a building permit for a Honey Dew Donuts shop on behalf of the landscape board. The doughnut shop had not yet submitted landscape design plans, but that was not uncommon, since those plans often didn’t come in until the owners sought an occupancy permit. Nelson Landscaping then did $3,600 worth of landscaping for the store, without submitting any plans to the landscape review board.

In October 1997, Nelson presented landscape sketches depicting the work his company did for Honey Dew Donuts, explaining that he did the work prior to the board’s approval so as not to delay the store’s opening. Though the ethics commission noted that such informality was not uncommon in the loosely operating landscape board, that violation of procedure earned Nelson a rebuke from his fellow members.

In June of that year, a building permit application came in for interior work at a Shaw’s supermarket. A month later the landscape review board decided to contact the petitioner, Jamp Realty, and inquire about having planters and trees placed in the parking lot. The board appointed Nelson to make the call. Some time later, Jamp Realty submitted landscaping plans, and in November 1998, Nelson’s landscaping company won the bid on the project, ultimately billing Jamp Realty $4,345. Nelson then represented Jamp before the landscape review board to explain the work his business did on the project.

“Nelson incorrectly believed that it was permissible to represent private clients before the [board] provided that as a member he abstained from voting, discussing, or acting on any matter in which a client had an interest,” the ethics commission agreement observes. “His understanding was incorrect.” In fact, in the commission’s view, Nelson ought not to have done any landscaping in Randolph that had to be reviewed by the board, even if he recused himself.

That ruling made it difficult for Randolph to compose an experienced landscape review board, says the town’s executive secretary, Paul Connors. “Who are we supposed to put on the landscape review board?” asks Connors. “It doesn’t make sense to have a board made up of doctors and lawyers. It made sense to have people on the board that were in the landscape business.” The town has since disbanded the board, entrusting trees and shrubs to a design review board and the planning board.

Acrimony over Autumn Woods

Richard Goodhue, a mason who serves on the planning board, didn’t think he had to recuse himself in May 1996, when the board was voting on plans for Autumn Woods, a 42-lot subdivision being built by West Point Development Co., any more than for any other project. “When I got on the planning board, I talked to town counsel about these types of things,” says Goodhue. “He told me, ‘Don’t worry about it. When you’re working, put on your bricklayer’s hat, and when you’re on the board, put your planning board hat on.'”

At that point, Goodhue didn’t have a contract to work on the new subdivision. But West Point had used Goodhue for all its masonry work since 1993, and there was no reason to believe he wouldn’t get the job at Autumn Woods, according to an ethics commission agreement signed by Goodhue. In a phone interview, Goodhue says that Autumn Woods had no plans for brick work when he voted on the plans. But West Point did decide to install chimneys at Autumn Woods, and Goodhue was paid $15,935 for the job.

He might have earned more were it not for a falling out he had with West Point’s owners in December 1996. Goodhue says he raised questions with the town about West Point’s construction methods on curbing and draincovers, though the owners say they fired Goodhue. What’s not in dispute is that West Point’s owners, Michael and Louis Kmito, filed a complaint with the ethics commission against Goodhue. After running up nearly $7,000 in legal fees during the lengthy investigation, Goodhue agreed in February to pay a $750 fine.

Goodhue says that his violation was a technicality, pointing to language in the agreement that he feels exonerates him of wrongdoing: “The commission is aware of no evidence to indicate that Goodhue…took any actions which were against the town’s interest. Nor is the commission aware of any evidence that any of Goodhue’s official actions were influenced by his dealing or relationship with the Kmitos or West Point.”

Goodhue submitted his legal bills to the town, but town counsel Paul DeRensis ruled that the town is not obligated to pay them because Goodhue was found in violation. But Goodhue’s not giving up, vowing to take his bills to town meeting if he has to.

The third ethics-violation case involved a full-time town employee, police Detective Lieutenant Robert Churchill who agreed in February to pay a $500 fine for his handling of a criminal case involving the 17-year-old son of a fellow police officer. In that case, the commission found that Churchill agreed to a favorable disposition for the son of the town’s police prosecutor, who was arrested for spray-painting racially charged graffiti. In a settlement agreement, the commission said that Churchill could have avoided his ethics trouble if he had made “timely disclosure” of his plan for prosecuting the case. “The selectmen would then have had the opportunity to decide whether they wanted Churchill to handle the case or to refer the matter to the District Attorney or the Attorney General.”

Reeling from these three rapid-fire conflict-of-interest violations, Randolph selectmen asked the ethics commission to sponsor six seminars on the state law, and required all board, commission and committee members to attend.

But even with all the controversy, the town has had little trouble filling openings on its volunteer boards. “We have a talent bank of people interested in serving,” says Connors. “We have very active citizens. People seem to want to be involved in local government here.”

But for Goodhue, who has two more years on the planning board and is now limiting his business to work outside Randolph, civic involvement has left a sour taste in his mouth. “It’s very disheartening for anyone naïve enough to get involved,” says Goodhue. “I guess I was naïve.”

Andrew Nelson is a freelance writer in Hingham.