It would seem to be an obvious violation of the Ethics Law, G.L. c. 268A, one worthy of a monetary penalty, for a municipal official to alter municipal records for his financial benefit. The Ethics Commission agrees, but in a surprising result, declined to seek a civil penalty against an official who did just that, concluding that the local adverse employment action and an issuance of a Public Education Letter were sufficient penalty.
This matter involved the Lawrence building inspector, who is a licensed real estate agent and property developer in the City. The building inspector formed an LLC to hold the deed to one such property and his contractor obtained a building permit from the City’s building commissioner. The building commissioner issued a stop work order when he determined that the work exceeded the scope of the building permit and changed the building permit’s status from issued to withdrawn. Learning about the change, the building inspector used his access to the City software to change the status from withdrawn to approved. Once this action was discovered, the City placed the building inspector on unpaid leave for ten days, a loss of approximately $2,250 in salary.
Two years later, the City placed the building inspector on paid administrative leave because it learned that he was under investigation by the Enforcement Division of the State Ethics Commission. Months later, the City informed him that he remained on paid administrative leave while it conducted its own investigation into his actions as building inspector.
In its decision, the State Ethics Commission found that there was “reasonable cause to believe” that the building inspector violated sections 19 and 23(b)(2)(ii) by changing his property’s permit status from withdrawn to approved. In fact, the Commission deemed it to be an “egregious misuse of [his] official position,” potentially subject to civil penalties up to $10,000 per violation. However, the Commission concluded that since this conduct was already the subject of “significant administrative action” by the City and he was further sanctioned by being placed on paid leave due to the pendency of the Commission’s investigation, it determined that the appropriate outcome would be the issuance of the Public Education Letter rather than a disposition agreement and imposition of a civil penalty.
The outcome was likely influenced by the fact that the City initially placed the inspector on paid leave solely due to learning that he was under investigation by the Commission. In a footnote, the Commission wrote:
While the placement of public employees on administrative leave is generally a matter left to the discretion of the employing public agency, the Commission strongly disapproves of and cautions against the placement on administrative leave, even if paid, of an employee simply because their agency believes them to be the subject of a Commission investigation. The employing agency’s inference as to who is under investigation may be mistaken and oftentimes the person being investigated has in fact not engaged in misconduct, in which case the administrative leave, even if paid, would be an injustice to the employee and an injury to the public due to the loss of the employee’s services during the leave. (emphasis in original)
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