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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." MerriamWebster'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.