Settlement

Settlement  In the Matter of Robert Burgmann

Date: 03/15/1993
Organization: State Ethics Commission
Docket Number: 462

Table of Contents

Disposition Agreement

This Disposition Agreement (Agreement) is entered into  between the State Ethics Commission (Commission) and Robert  Burgmann (Mr. Burgmann) pursuant to s. 5 of the Commission's  Enforcement Procedures. This Agreement constitutes a consented to  final Commission order enforceable in the Superior Court,  pursuant to G.L. c. 268B, s. 4(j).   

On December 10, 1992, the Commission initiated, pursuant to  G.L. c. 268B, s. 4(a), a preliminary inquiry into possible  violations of the conflict of interest law, G.L. c. 268A, by Mr.  Burgmann. The Commission has concluded its inquiry and, on  February 23, 1993, by a majority vote, found reasonable cause to  believe that Mr. Burgmann violated G.L. c. 268A.   

The Commission and Mr. Burgmann now agree to the following  findings of fact and conclusions of law:   

1. Mr. Burgmann was, during the time here relevant, the  Sandwich Planning Board Chairman. As such, Mr. Burgmann was a  municipal employee as that term is defined in G.L. c. 268A, s. 1.   

2. "RUCK" systems are nitrate reducing septic systems. SE  RUCK Systems Inc. (SE RUCK) is a Massachusetts corporation  licensed to design the RUCK system in Massachusetts for the  patent holders. For several years, SE RUCK attempted to obtain  the Department of Environmental Protection's (DEP) approval for  installation of the RUCK system in Massachusetts.  

3. During the time here relevant, Mr. Burgmann was an  officer, director, employee and 20% owner of SE RUCK.   

4. Ryder Woods Associates (Ryder Woods) was the developer  of a proposed 76 single-family unit affordable housing  subdivision in Sandwich.   

5. On February 13, 1990, the Sandwich Zoning Board of  Appeals (ZBA) granted Ryder Woods a comprehensive permit with 29  conditions to build the above-mentioned development. Due to the  fact that the proposed project was located in a zone of  contribution to a public water supply; that the project itself  would not be serviced by town water but by individual wells; and  concerns regarding nitrate loading created by this development,  the ZBA imposed condition #26 which provided as follows:   

Should DEP authorize the utilization of a septic system  designed to reduce nitrate loading [1] prior to the  completion of the development then the applicant shall be  required to install these new type systems. No septic system  shall be required to be removed after it has been installed  [2].   

6. On January 29, 1991, Mr. Burgmann, as Planning Board  Chairman, wrote a memorandum on Planning Board stationery to the  Board of Health (BOH) Chairman stating:   

This letter is to inform the BOH that the DEP has recently  approved a nitrate reducing system. Condition #26 of the  Ryder Woods Associates comprehensive permit requires all  homes in the development shall be serviced by a nitrate  reducing septic system. Therefore, the Planning Board  requests, that the BOH require the developers to adhere to  this Condition.   

7. Depending upon the number of RUCK systems that would  have been required to have been installed at the Ryder Woods  project, the average fee per unit that would have been generated  for engineering services by SE RUCK would have been between $200  and $500.   

8. Mr. Burgmann, as a 20% shareholder, would ultimately  have been a beneficiary of the fees generated by this project.   

9. In a March 26, 1991 letter to Ryder Woods, the ZBA  stated that it was not requiring Ryder Woods to install the RUCK  system.   

10. Section 19 of G.L. c. 268A, except as permitted by  paragraph (b), [3] prohibits a municipal employee from  participating [4] as such an employee in a particular matter [5]  in which to his knowledge he has a financial interest.

11. The determination or decision by the ZBA as to whether  it would require the installation of a nitrate reducing septic  system in the Ryder Woods affordable housing project in  accordance with condition #26 was a particular matter in which  the town had a direct and substantial interest.   

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12. Mr. Burgmann, by writing the January 29, 1991  memorandum to the BOH advocating installation of the RUCK system,  was personally and substantially involved as the Planning Board  Chairman in the just described particular matter. Therefore, he  participated in that matter.    

13. Mr. Burgmann, as an officer, director, employee and 20%  owner of SE RUCK, had a financial interest in seeing the RUCK  system installed in the Ryder Woods affordable housing project.  Mr. Burgmann was aware of that financial interest.   

14. Therefore, by writing the January 29, 1991 memorandum  to the BOH, Mr. Burgmann participated as chairman of the Planning  Board in a particular matter in which he had a financial  interest, thereby violating s. 19.   

In view of the foregoing violation of G.L. c. 268A by Mr.  Burgmann, the Commission has determined that the public interest  would be served by the disposition of this matter without further  enforcement proceedings, on the basis of the following terms and  conditions agreed to by Mr. Burgmann:   

(1) that Mr. Burgmann pay to the Commission the sum of one  thousand ($1,000.00) as a civil penalty for violating G.L.  c. 268A, s. 19;   

(2) that Mr. Burgmann waive all rights to contest the  findings of fact, conclusions of law and terms and  conditions contained in this Agreement in this or any other  related administrative or judicial proceeding to which the  Commission is or may be a party.     

[1] "Nitrate loading" refers to nitrates produced by septic  systems which can pollute the ground water.   

[2] Mr. Burgmann did not participate in the drafting of this  condition nor is there any evidence that he did anything which  would have influenced the ZBA to impose this condition. The  project was modified and as reduced would generate 7.8 P.P.M. of  nitrates, which was 56% higher than levels recommended by the  Cape Economic and Development Commission and the Cape Cod  Commission.   

[3] None of those exemptions applies here.   

[4] "Participate," participate in agency action or in a  particular matter personally and substantially as a state, county  or municipal employee, through approval, disapproval, decision,  recommendation, the rendering of advice, investigation or  otherwise. G.L. c. 268A, s. 1(j).

[5] "Particular matter," any judicial or other proceeding,  application, submission, request for a ruling or other  determination, contract, claim, controversy, charge, accusation,  arrest, decision, determination, finding, but excluding enactment  of general legislation by the general court and petitions of  cities, towns, counties and districts for special laws related to  their governmental organizations, powers, duties, finances and  property. G.L. c. 268A, s. 1(k).

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