June 8, 2011
The State Ethics Commission ("Commission") and Alan Cohen ("Cohen") enter into this Disposition Agreement pursuant to Section 5 of the Commission's Enforcement Procedures. This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j).
On February 18, 2011, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Cohen. The Commission has concluded its inquiry and, on May 20, 2011, found reasonable cause to believe that Cohen violated G.L. c. 268A.
The Commission and Cohen now agree to the following findings of fact and conclusions of law:
Findings of Fact
1. Cohen is an Agawam High School ("AHS") guidance counselor and the summer school director.
2. Steven Lemanski is the AHS principal ("Principal").
3. The Principal is Cohen's supervisor.
4. In accordance with AHS policies and procedures, summer school hirings must be posted internally for ten days before a hiring and a screening committee must review applications.
5. Prior to September 2010, Cohen, as the summer school director, was responsible for running the summer school program, including staff hiring.
6. The 2010 summer program ran for four weeks, from July 6 through August 2. Some time prior to the start of the 2010 summer school program, Cohen learned that the previous summer school physical education ("PE") teacher would be retiring. According to Cohen, he and the Principal often talk about their children, and Cohen knew that the Principal's son was finishing college and would graduate with a major in PE. Cohen immediately thought of the Principal's son to fill the position.
7. At Cohen's request, the Principal's son submitted his resume and transcripts and filled out a summer school teacher application on May 28, 2010. The Principal's son's resume, as well as his summer school application, indicated he did not have his college degree or teaching certification but that he anticipated receiving them on December 31, 2010, after he completed student teaching.
8. Cohen hired the Principal's son without posting the summer school PE position or convening a screening committee to review applications. The Principal's son earned $1,200 for teaching the course, or about $30 per hour.
Conclusions of Law
9. As an AHS guidance counselor and the summer school director, Cohen is a municipal employee as defined by G.L. c. 268A, § 1.
10. Section 23(b)(2)(ii) of G.L. c. 268A prohibits a municipal employee from, knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.
11. The standard hiring process for personnel at AHS includes posting and interviewing candidates. Cohen hired the Principal's son without posting the summer school PE position or convening a screening committee to review applications. Where the hiring procedure was not followed, the Principal's son's hiring as the summer school PE teacher was an unwarranted privilege secured for him by Cohen.
12. The Principal's son's hiring was of substantial value because the position was a compensated one.
13. Cohen used his official position as summer school director to secure for the Principal's son this unwarranted privilege by hiring the Principal's son as the summer school PE teacher.
14. This privilege was not otherwise properly available to similarly situated individuals, such as other potential applicants for the position.
15. Therefore, by hiring his supervisor's (the Principal's) son as the summer school PE teacher without following the required hiring procedure, Cohen knowingly used his summer school director position to secure for the Principal's son an unwarranted privilege of substantial value that was not properly available to similarly situated individuals, thereby violating § 23(b)(2)(ii).
16. When a candidate for a school department position is an immediate family member of a school principal, particular care must be taken to ensure that all standard hiring procedures are followed. That did not occur in this case.
In view of the foregoing violation of G.L. c. 268A by Cohen, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, based on the following terms and conditions agreed to by Cohen:
(1) that Cohen pay to the Commonwealth of Massachusetts, with such payment delivered to the Commission, the sum of $1,000 as a civil penalty for violating G.L. c. 268A, § 23(b)(2)(ii); and
(2) that Cohen waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.
End of Decision