Public Education Letter


November 3, 2009

Dear Mr. Commeret:

As you know, the State Ethics Commission has conducted a preliminary inquiry into whether you, as the Marblehead Community Charter Public School (the "School") Head of School, violated § 23(b)(3) of G.L. c. 268A, the conflict of interest law, by hiring a School Board of Trustees ("Board") member and/or his company to perform work at the School. Based on the staff's inquiry (discussed below), the Commission voted on April 17, 2009, to find that there is reasonable cause to believe that you violated the conflict of interest law.

For the reasons discussed below, however, the Commission has concluded that further proceedings in your case are not necessary. Instead, the Commission has determined that the public interest would be better served by bringing to your attention, and to the public's attention, the facts revealed by the preliminary inquiry, and by explaining the application of the law to the facts, with the expectation that this advice will ensure your understanding of and future compliance with these provisions of the conflict of interest law.

By agreeing to this public letter as a final resolution of this matter, you do not admit to the facts and law discussed below. The Commission and you have agreed that there will be no formal action against you in this matter and that you have chosen not to exercise your right to a hearing before the Commission.

I. Facts

For the relevant period, you were the Head of School. Your contract with the School ended in June 2009. Your hiring authority was the Board. As Head of School, you were responsible for all staffing decisions.

In late 2003, the Board made plans to expand the leased space used by the School by adding four classrooms and a gymnasium (the "Project") at a cost of approximately $500,000. A contractor was hired to perform the expansion work. In 2003, you hired Board member Robert Erbetta and his company, Management Design Associates, Inc. ("MDA"), to be the School's project manager on the Project. Mr. Erbetta and his company served in that capacity until approximately February 2006.

Although you told us in a statement made under oath that you believed that Board members knew of this project manager arrangement, several Board members stated that they were unaware that Mr. Erbetta was being compensated for this work until after the fact.

School records indicate that Mr. Erbetta received a total of $93,833 in payments from the School between November 2003 and February 2006. Because his invoices are lacking in detail, it is difficult to determine how much of the $93,833 was actually for project management work for the Project. It appears that, at a minimum, Mr. Erbetta charged the School $12,482 for work performed between November 2003 and February 2006 for what he termed "miscellaneous labor," which was not related to the Project. This "miscellaneous labor" included loam spreading, painting, chair set-up, and sweeping.

In July 2006, you hired Mr. Erbetta as the School's part-time facilities coordinator. As facilities coordinator, Mr. Erbetta performed maintenance, repairs, and small construction projects at the School. According to a copy of Mr. Erbetta's employment contract for 2006-2007, he was to be paid at the annual rate of $20,000. The contract does not specify Mr. Erbetta's work schedule, but it appears he performed about 10 hours of work per week. Mr. Erbetta's salary was increased to $20,400 in his contract for 2007-2008.

The Board only learned of Mr. Erbetta's hiring as facilities coordinator after the fact. It was standard operating procedure at the School for you to assume "unilateral control" over staff hiring.

In March 2005 and again in March 2007, Mr. Erbetta voted to renew each of your two-year contracts as Head of School.

II. Discussion

As a School trustee, you were a "state employee" as that term is defined in G.L. c. 268A, § 1(q). As such, you were subject to the provisions of the conflict of interest law that apply to state employees, and, in particular for the purposes of this discussion, to § 23(b)(3) of that statute.

Section 23(b)(3) of G.L. c. 268A prohibits a public employee from, knowingly or with reason to know, acting in a manner which would cause a reasonable person, knowing all of the facts, to conclude that anyone can improperly influence or unduly enjoy that person's favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. This subsection's purpose is to deal with appearances of impropriety, including actions that give rise to appearances that public officials have given people preferential treatment. This subsection further provides, in effect, that the appearance of impropriety can be avoided if the public employee discloses in writing to his appointing authority all of the relevant circumstances which would otherwise create the appearance of a conflict of interest. The appointing authority must retain that written disclosure as a public record.

There is reasonable cause to believe that you violated § 23(b) (3) by hiring Mr. Erbetta (and/or Mr. Erbetta's company, MDA) as project manager on the Project, by having Mr. Erbetta do non-Project-related maintenance work and by hiring Mr. Erbetta as the facilities coordinator without disclosing these facts to the Board. Where the Board was your appointing authority, and Mr. Erbetta was one of the trustees on the Board, such action gave the appearance that Mr. Erbetta and/or MDA could improperly influence you or unduly enjoy your favor or that you were likely to act or fail to act as Head of School as a result of Mr. Erbetta's and/or MDA's undue influence.

III. Disposition

Based upon its review of this matter, the Commission has determined that your receipt of this public education letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law. Therefore, this matter is now closed.

Very truly yours,

Karen L. Nober
Executive Director