The plaintiff, James J. Craven, Jr., appeals from a judgment of the Superior Court which affirmed a decision of the State Ethics Commission (commission). The commission had found that the plaintiff violated certain provisions of the conflict of interest law, G. L. c. 268A, and had assessed a civil penalty of $1,000. We transferred the case to this court on our own motion. The plaintiff argues on appeal that the judgment of the Superior Court should be reversed and the decision of the commission set aside on the grounds that (1) he was denied due process of law because the chairman of the commission acted in both an investigative and adjudicatory capacity during the proceedings before the commission, (2) he was denied due process of law because the commission improperly applied only a preponderance of the evidence standard of proof in its proceedings, and (3) the decision of the commission is unsupported by substantial evidence. We disagree with all the plaintiff’s contentions. Accordingly, we affirm the judgment.
We summarize the relevant facts found by the commission. The plaintiff has been a member of the Massachusetts House of Representatives and a member of its Ways and Means Committee (committee) since 1957. 1 The committee evaluates and makes recommendations to the House on the budget requests of all State agencies. These recommendations carry great weight with the House membership..
In 1976, the plaintiff assisted in the formation of the Jamaica Plain Community Development Foundation, Inc. (JPCDF), by recruiting persons in the Hispanic community to serve on its board of directors. JPCDF was incorporated in April, 1977. The first executive director of JPCDF was Cornelius Joseph Doyle.
In the late summer or fall of 1978, the plaintiff assisted JPCDF in its efforts to obtain government funds by advising persons associated with the organization of the availability
In August or September, 1978, the plaintiff arranged and attended a meeting at the offices of the committee. Also attending the meeting were Doyle, William Flynn, then the secretary of EOCD, and Paul Collis, then Flynn’s legislative assistant. At this meeting, the plaintiff recommended that JPCDF be funded by EOCD. Flynn advised the plaintiff that there were several EOCD programs, including the Urban Reinvestment Study (URS) Program, under which JPCDF could apply for funding.
In November, 1978, the plaintiff attended another meeting with Flynn in the committee’s offices. Several other State legislators representing sections of Boston also attended this meeting. The subject of the meeting was the funding by EOCD of community development groups in Boston. Flynn advised those present that there were three EOCD programs, including the URS program, under which Boston groups could apply for funding.
During this period, DCA was implementing a $150,000,000 program which could not proceed to the actual construction phase until the committee approved DCA’s schedule. This schedule was pending before the committee at the time of these two meetings. At this time, Flynn was aware that the plaintiff was a member of the committee.
On November 21, 1978, the plaintiff attended a meeting at the DCA offices in Boston. Also attending the meeting were Doyle, two professionals who were to conduct research
On December 1, 1978, JPCDF submitted to DCA a proposal for a URS grant. DCA received six other proposals for the $30,000 available in URS monies. All seven proposals were evaluated. As a result of these evaluations, the DCA staff submitted to Secretary Flynn a recommendation that three of the groups receive grants, in the amount of $10,000 each. The staff did not recommend that JPCDF receive funding because JPCDF had not proposed strategies to overcome declining financial investment in the community as required in the request for proposals for funding.
Hayes later informed Entin that he had discussed the URS proposals with Flynn and that they had decided to fund two of the groups recommended but not the third group. Hayes explained that he and Flynn had decided instead to commit funds to JPCDF subject to an improvement in JPCDF’s proposal to meet the program requirements. The contacts made by the plaintiff with EOCD officials regarding JPCDF and the concern generated by those contacts about the implications for the DCA budget in the event that JPCDF was not awarded funding were major factors in the decision to commit funding to JPCDF.
On May 5, 1977, the plaintiff and four of his brothers established the Celtic Realty Trust. The plaintiff and these brothers were named as beneficiaries of the trust. Albert Buchwald, who was then serving as president of JPCDF, and John Lawless, a director of JPCDF, were named as trustees of the trust. At about the same time, the trust purchased a building located at 2-16 Hyde Park Avenue, Jamaica Plain, known as the Minton Building. In the fall of 1977, the plaintiff assigned his twenty per cent beneficial interest in the trust to his daughter. The other four beneficial interests remained in the plaintiff’s brothers throughout 1978 and 1979.
During the fall of 1978, it was the intention of JPCDF to use some portion of the URS grant, if received, to pay rent on office space in the Minton Building. 3 The plaintiff had been aware of this intention when meeting with EOCD officials. JPCDF paid to the Celtic Realty Trust $490 in rent from the URS grant monies for the month of June, 1979. JPCDF subsequently received notice from Tuckman not to make further expenditures of URS grant monies.
1. The plaintiff’s first argument is that he was denied due process of law because the chairman of the commission assumed both an adjudicatory and an investigative function in the proceedings before the commission. Since the plaintiff’s argument to a large extent challenges the statutory scheme under which the commission operates, we briefly discuss the relevant provisions.
In the case at bar, an order to show cause was issued on November 29, 1979, alleging that the plaintiff had violated G. L. c. 268A, §§ 2 (b), 6, and 23 (d). On March 10 and 11, 1980, an evidentiary hearing was held before the chairman of the commission. On June 18, 1980, the commission issued its decision and order, in which the chairman participated. In this decision, the commission made extensive findings of fact and concluded that the plaintiff had violated G. L. c. 268A, §§ 6 and 23 (d), but had not violated §2 (b).
We agree with the plaintiff that “[a] fair trial in a fair tribunal is a basic requirement of due process,”
In re Murchison,
In
Raymond
v.
Board of Registration in Medicine,
The reasoning of
Raymond
controls the case at bar. This case is similar to
Raymond
in that the plaintiff complains that the member of the commission who sat as hearing officer also participated in the decision to issue the order to show cause. Unlike
Raymond,
however, the plaintiff submits that this same member of the commission participated in the initial decision authorizing a preliminary inquiry and in the final decision. It was not alleged in
Raymond
either that the hearing officer participated in the final decision of the board or authorized a preliminary inquiry, although it was contended that one or more of the board members, not necessarily the hearing officer, participated in the decision
The fact that the chairman of the commission was involved at these various stages of the proceedings before the commission does not demonstrate a substantial risk of an unfair decision-making process due to bias or prejudgment. Mere authorization of a preliminary investigation did not improperly involve the chairman in the investigatory stage, particularly where it appears that neither the chairman nor the commission actually conducted the investigation but rather members of the staff of the commission did. Furthermore, the chairman’s participation in the final decision was not improper. Each member of the commission had a copy of the transcript of the evidentiary hearing. Each member of the commission participated in making both the findings of fact and the legal conclusions. Although the other members of the commission may have accorded the chairman some deference on matters of credibility, the possibility of such deference being given does not in itself rise to the level of a constitutional violation. Following the lead of Withrow, supra, without a showing to the contrary, we assume that State administrators are impartial and fair in performing their duties. Thus, we conclude that the proceedings before the commission did not deprive the plaintiff of due process.
2. We also reject the plaintiff’s argument that he was denied due process because the commission applied an improper standard of proof. According to the plaintiff, the commission should have been held to a clear and convincing standard of proof because criminal sanctions could be imposed for the conduct with which the commission charged him. We note, however, that the commission itself does not have the power to impose criminal sanctions. Rather, the
Proof by a preponderance of the evidence is the standard generally applicable to administrative proceedings. See
Tartas’s Case,
3. The plaintiff’s final argument is that the decision of the commission is “[unsupported by substantial evidence.” G. L. c. 30A, § 14 (7)
(e).
Substantial evidence “means such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6), inserted by St. 1954, c. 681, § 1. “We note the limited nature of our review under the substantial evidence standard. Although we must examine the entire record, including any evidence that detracts from the weight of the [commission’s] decision . . . we may not substitute our judgment for that of the [commission] ...” (citations omitted).
1001 Plays, Inc.
v.
Mayor of Boston,
The commission found that the plaintiff violated G. L. c. 268A, § 6, which prohibits a State employee from participating
4
in a particular matter
5
in which he or a member of his immediate family
6
has a financial interest. The commission also found that the plaintiff violated G. L. c. 268A, § 23
(d),
as amended through St. 1975, c. 508, which provides in relevant part that no employee of the State shall
There is substantial evidence in the record to support both of these conclusions. The commission could reasonably have found that the plaintiff used his position as a member of the Massachusetts House of Representatives Ways and Means Committee to exert pressure on the EOCD officials to award the URS contract to JPCDF, and that the plaintiff knew that JPCDF intended to pay some portion of that award as rent to a trust of which members of his immediate family were beneficiaries. Thus, there was substantial evidence before the commission that the plaintiff violated G. L. c. 268A, §§ 6 and 23 (d). Accordingly, the judgment of the Superior Court is affirmed.
So ordered.
Notes
The plaintiff submits in his brief that he has been a member of the committee from 1958 through 1962 and from 1966 to the present.
In the spring of 1979, JPCDF was also tentatively awarded one $40,000 contract and one $24,500 contract by the city of Boston. Both awards, however, were subsequently cancelled.
In addition, the proposal submitted to DCA by JPCDF for URS funds contemplated the expenditure of some portion of the grant monies on overhead expenses. The contract awarded to JPCDF authorized these expenditures.
“Participate” is defined in § 1 (;) of G. L. c. 268A, as appearing in St. 1962, c. 779, § 1, as to “participate in agency action or in a particular matter personally and substantially as a state . . . employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.”
“Particular matter” is defined in § 1 (k), as appearing in St. 1962, c. 779, § 1, as “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,”
“Immediate family” is defined in § 1 (e), as appearing in St. 1962, c. 779, § 1, as the State employee and his spouse and “their parents, children, brothers and sisters.”