Zora v. State Ethics Com'n

• Decision Date: 24 June 1993
• Citation: 615 N.E.2d 180,415 Mass. 640
• Parties: Joseph P. ZORA, Sr., & another 1 v. STATE ETHICS COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 180

615 N.E.2d 180

415 Mass. 640

Joseph P. ZORA, Sr., & another ¹ v. STATE ETHICS COMMISSION.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued March 4, 1993.

Decided June 24, 1993.

Donald J. Fleming, Mattapoisett, for plaintiffs.

Diane M. Meibaum, Boston, for defendant.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

After an adjudicatory hearing, the State Ethics Commission (commission) determined that the plaintiffs, Joseph P. Zora, Sr. (Zora Sr.), and Joseph P. Zora, Jr. (Zora Jr.), had violated the State conflict of interest law covering public officials and employees. See G.L. c. 268A, § 17(c ) (1990 ed.). ² Due to certain mitigating circumstances the commission did not impose fines or other civil sanctions on either plaintiff. See G.L. c. 268B, § 4 (1990 ed.). The plaintiffs filed a complaint for judicial review in the Superior Court and the commission counterclaimed for affirmation of its decision. See G.L. c. 30A, § 14 (1990 ed.); G.L. c. 268B, § 4(k ). Following a hearing on cross motions for summary judgment, a Superior Court judge entered judgment in favor of the commission. The plaintiffs appealed, and we transferred the case to this court on our own motion.

The plaintiffs raise numerous challenges in this appeal, both procedural and substantive, to the commission's determination that they committed violations of the State conflict of interest law. ³ The plaintiffs argue that: (1) the adjudicatory proceedings in this case were barred by the applicable statute of limitations; (2) the commission's finding that both plaintiffs were "regular" and not "special" municipal employees was not supported by substantial evidence; (3) the commission's finding that both plaintiffs acted as agents for another was not supported by substantial evidence; (4) the application of G.L. c. 268A, § 17, to Zora Sr. violated his right of free speech under the First Amendment to the United States Constitution; (5) the commission abused its discretion by authorizing adjudicatory proceedings in this case; and (6) the plaintiffs were denied their right to a jury trial under art. 15 of the Massachusetts Declaration of Rights. We reject each of these arguments and affirm the Superior Court judgment upholding the decision and order of the commission.

We draw the pertinent facts from the findings of the commission. At all times relevant to this case, Zora Sr. was a member of the board of selectmen of the town of Marion and his son, Zora Jr., was a member of the Marion conservation commission (MCC). In the early 1960's, Zora Sr. and his wife purchased approximately seventy-five acres of land in Marion which Zora Sr. intended to develop for single-family housing. In January, 1972, a corporation, Zora Enterprises, Inc., was formed pursuant to G.L. c. 156B, "to carry out the business of developing and improving real property." Zora Sr. was named president and treasurer of the corporation, his wife was named clerk, and their children were named directors. By June, 1983, title to the land previously held by Zora Sr. and his wife had been transferred to Zora Enterprises, Inc. In June, 1983, Zora Enterprises, Inc., filed a plan at the Plymouth County Registry of Deeds for subdivision of the land (including additional land purchased subsequent to the original seventy-five acres) into forty-five lots.

On February 6, 1985, Roy and Sheila Rider and Zora Enterprises, Inc., entered into a purchase and sale agreement for the purchase of lot 45. The agreement was conditioned on the satisfactory performance of a percolation test to be performed on or before February 20, 1985. Because lot 45 lies lower than fourteen and one-half feet below sea level, it is subject to the Massachusetts Wetlands Protection Act, G.L. c. 131, § 40 (1990 ed.), and under the jurisdiction of the MCC. In connection with their planned purchase of lot 45, the Riders filed a required notice of intent with the MCC stating their intention to construct a house and install a swimming pool. A notice of intent is similar to an application for permission to build and seeks a permit, otherwise known as an order of conditions, to perform work on land subject to § 40. It appears that the Riders included the results of the percolation test with their notice of intent.

On March 27, 1985, the MCC held a public hearing on the Riders' notice of intent. At this hearing, Zora Jr. announced that he would not participate because of his father's financial interest in the subject property. After Roy Rider presented his notice of intent, MCC member John Rockwell informed the MCC that he had gone to the property several days before and had dug some holes in the land. Rockwell said that the property seemed very wet and expressed his concern that the water table was in fact higher than reported. He suggested that a second percolation test be done on the lot at the town's expense. The MCC voted to conduct a second test and continue the hearing on the Rider matter until the additional information was submitted. Zora Sr. considered this vote as an attack on his integrity since it raised an inference that false percolation test data had been submitted to the MCC. Sometime prior to the next scheduled meeting of the MCC, Zora Sr. made contact with Janice Mendes, chairman of the MCC, and threatened a lawsuit if anyone set foot on lot 45.

The next meeting of the MCC occurred on April 10, 1985. Zora Jr. attended this meeting to obtain information for his father regarding the continuance on the Riders' notice of intent. At this meeting, Zora Jr. stated that he was there as agent for Zora Enterprises, Inc. His presence as "agent" and not as "member" was noted in the minutes. Zora Jr. stated his opinion that the MCC did not have authority to order a second percolation test because the test was the obligation of the applicant. He also stated his opinion that the MCC did not have the right to dig on lot 45. Mendes informed Zora Jr. that the Riders' notice of intent could not be processed without a site inspection and, because of Zora Sr.'s threats of litigation, she was now unwilling to perform the inspection without written permission from Zora Sr. Zora Jr. informed the MCC that Zora Sr. had already granted permission to go on the property. Zora Sr. confirmed this permission in a telephone conversation with Mendes, subject to the conditions that his representative be present at any inspection and that the MCC refrain from digging holes on the property.

On April 12, 1985, the MCC performed a site inspection of lot 45. Six members of the MCC, including Zora Jr., Mendes, and Rockwell were present, along with a representative of the firm which had conducted the original percolation test and a representative of the wetlands division of the Department of Environmental Quality Engineering (now the Department of Environmental Protection). Because Zora Sr. was unable to attend, Zora Jr. was authorized by his father to represent the interests of Zora Enterprises, Inc. Zora Jr. expressed disagreement with the observations and opinions of some MCC members that 50% of the lot contained wetlands vegetation. If the inspection resulted in a determination that the land was wetlands, the value of the land would substantially diminish.

The MCC met on April 19, 1985, to continue the public hearing on the Riders' notice of intent. Zora Sr., Zora Jr., and Roy Rider attended the meeting. Rider authorized Zora Sr. to speak on his behalf regarding the way in which the MCC was administering the Wetlands Protection Act in relation to his notice of intent because Rider believed that Zora Sr. had more expertise in this area. Zora Sr. addressed the MCC at length, criticizing various aspects of their procedures. He also submitted a memorandum, as president of Zora Enterprises, Inc., detailing his objections to the MCC's conduct. Among other things, the memorandum confirmed that Zora Jr. was acting as a representative of Zora Enterprises Inc., with regard to the pending notice of intent.

Following Zora Sr.'s presentation, the MCC discussed the question of the deadline for its decision on the Riders' notice of intent. The consensus among the members was that the MCC had three more weeks in which to issue its ruling under the applicable regulation. Zora Jr. disputed this, stating that the three-week period ran from the date of the original hearing and that the MCC had to render its decision that day. After the Zoras left the meeting, the MCC voted to issue an order of conditions (permit) to the Riders.

The MCC met again on April 24, 1985. Both Zora Sr. and Zora Jr., accompanied by an attorney, attended the meeting. Zora Sr. provided the MCC with a letter from an engineer who had performed a second percolation test on lot 45. The Zoras were then informed that the order of conditions had been granted to the Riders at the previous meeting. As the Zoras left, Zora Jr. commented "you guys have a lot of work to do knowing what your procedures are." Following the resolution of the Rider matter, Zora Jr. resumed his participation as a member of the MCC.

Based on the above events, the commission concluded that both Zora Jr. and Zora Sr., as regular municipal employees, had violated G.L. c. 268A, § 17(c ), by acting as agents for another before the MCC; Zora Jr. by acting as an agent for Zora Enterprises, Inc., on four occasions, and Zora Sr. by acting as an agent for Zora Enterprises, Inc., and the Riders on two occasions. Although the commission could have imposed substantial fines on both Zoras, see G.L. c. 268B, § 4(j )(3), the commission concluded that the imposition of fines was not warranted. With regard to Zora Sr., the commission found credible his testimony that he believed he held the status of "special municipal employee" under the State conflict of interest law. If Zora Sr. had indeed been a special municipal employee, his conduct before the MCC would not have...