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.