Decision and Order
In the Matter of Paul M. Wormser and Thomas Jefferson
Appearances: Mark Walter, Esq., Counsel for Petitioner
Paul M. Wormser, pro se
Michael J. Long, Esq., Counsel for Respondent Thomas Jefferson
Commissioners: Kempthorne, Veator, King and Mangum 
Presiding Officer: Commissioner Jeanne M. Kempthorne
Public school districts bear the weighty responsibility of determining whether and how they can address the needs of students requiring special education, and, if they cannot, whether public funds will be used to pay for alternative private education. These decisions necessarily require careful assessments in order to ensure that a student has an appropriate educational program and that limited public funding resources are committed fairly and responsibly.
Harvard Elementary School Committee member, Paul Wormser, having grown increasingly dissatisfied with the special education services recommended by Individual Education Program teams, unilaterally transferred his child from the public school district to a private school. The evidence in this adjudicatory hearing persuades us that Wormser and his subordinate, Superintendent Thomas Jefferson, violated G.L. c. 268A, § 23(b)(2) by using their official positions to engage in an unusual process that was not available to other parents of special needs students in order to secure for Wormser, at public expense, reimbursement of $30,000 of the cost of his child's private school tuition.
We also conclude that Jefferson violated § 23(b)(3) by participating in negotiations with Wormser, his superior, without publicly disclosing that he was engaged in a financial negotiation with a school committee member. In addition, we find that Wormser violated § 23(b)(3) by failing to disclose that he was negotiating his tuition reimbursement claim with Jefferson while he participated in the school committee's evaluation of Jefferson's performance.
II. PROCEDURAL HISTORY
Petitioner filed separate Orders to Show Cause against James Doe (Paul Wormser), former member of the Harvard Elementary School Committee, and John Doe (Thomas Jefferson), superintendent of the Harvard Public Schools, on April 30, 2009.
The two cases were consolidated at the request of the parties on September 15, 2009.
Petitioner filed a Motion to Impound along with both Orders to Show Cause, seeking to have a closed hearing on the grounds that federal and state law prohibited disclosure of school records that would identify a student. The motion was denied on November 6, 2009, on the grounds that the interests of the public in open Ethics Commission hearings outweighed the privacy interest protected by the laws requiring confidentiality of school records. As a result of the decision, the identity of the parties was made public.
An adjudicatory hearing was held on November 12 and 13, 2009.
III. FINDINGS OF FACT
A. Special education procedures
1. For a student to receive special education services, teachers, parents and others who work with a student meet to determine whether the child should be evaluated. The criteria for eligibility for special needs education services are that (1) the student has a diagnosed disability, (2) the student is not making effective academic progress, and (3) the disability is the reason that the student is not making effective progress.
2. An Individual Education Program ("IEP") team is convened to determine if the student is eligible for special education services. In the Harvard public school system, the team typically consists of a general education teacher, the student's parents, the student's needs evaluators and a special education teacher. On occasion, the special education director or the superintendent attends IEP team meetings.
3. If the student is determined to be eligible, the team develops an IEP, essentially a contract among the school district, the parents and the student, identifying the services that the student will receive. The IEP includes services to be provided both by general education teachers and by special education teachers. Team meetings are held annually to draft a new IEP, and every third year a new evaluation is performed to see if the student remains eligible. Parents also may ask to convene a team meeting at any time.
4. When a parent disagrees with an IEP, the school notifies the state Bureau of Special Education Appeals ("BSEA"). The BSEA then sends the parents a packet that includes a document which notifies parents of their rights. In 2005, it was called the Notice of Procedural Safeguards. It states,
The Department of Education encourages you to first attempt to resolve the matter with local school district officials. Contact your school principal, your Administrator of Special Education, or your superintendent to ask for assistance.
The Notice also includes information about requesting mediation or a hearing at the BSEA. Mediations can be requested at any time. Settlement conferences may be held after a request for hearing has been filed.
5. When a team determines that a student's needs cannot be met within the district, the district is required to find an appropriate placement for the student. If the IEP team decides that an out-of-district placement is appropriate, the public school district pays 100% of the costs related to the placement.
6. Charles Horn was the special education director for the Harvard public schools from 2002 to 2008 and the out-of-district placement director for five years. Only the team could decide whether a student warranted an out-of-district placement, and Horn had no authority to override the team's decision. Horn could decide, however, on the appropriateness of a placement.
7. The Department of Education ("DOE") had a list of approved schools with set tuition rates. Horn would place a student in an unapproved school only if he could not find an approved placement.
8. Parents who unilaterally withdraw a student from a public school and place the student in a private school may request tuition reimbursement from the public schools. The Notice of Procedural Safeguards advises that a parent who wants the school district to pay the private school tuition is required to give notice to the school either at a team meeting or in written form at least 10 business days before removing the child from the public school program. Federal regulations provide that a public school can reduce or deny reimbursement if a parent fails to provide such notice and requires parents to state their intention to enroll their child in private school at public expense. 34 CFR § 300.403(d)(1)(i).
9. Notice to the school prior to removal of a child gives the school a chance to conduct an evaluation and convene a team meeting or to file for a hearing with the BSEA.
10. Under federal regulations, a court or hearing officer may require a school district to reimburse the parents for the cost of enrolling a child with a disability in a private school if the court or hearing officer finds that the school district has not made a free, appropriate public education (FAPE) available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. 34 CFR § 300.403(c). The Notice of Procedural Safeguards informs parents of the need to prove their case at a due process hearing and provides that if they are successful, "the Bureau of Special Education Appeals hearing officer may require the school district to use public funds to pay for your child's private school placement." There is a two-year limit on retroactive reimbursement.
B. The 2004-2005 school year
11. Wormser served on the Harvard Elementary School Committee from April, 2004 to February, 2007. He was its chair during the 2004-2005 school year and until early April of 2006. The school committee was the appointing authority for the superintendent.
12. Mirhan Keoseian was superintendent during the 2004-2005 academic year. Wormser, as school committee chair, had regular weekly or biweekly meetings with Keoseian about general school business. At the end of several of these meetings, he raised concerns about special education services being provided to Wormser's child at the Bromfield School pursuant to an IEP. As the year progressed, Wormser told Keoseian several times that they needed to send the student out of district and wanted the Harvard school district to bear part of the cost. Keoseian consistently told Wormser that there were policies and procedures in place and that he had to bring the matter back to the student's IEP team.
13. Keoseian's understanding was that a superintendent had no authority to overrule an IEP team. During his tenure, he never had done so.
C. Removal of Wormser's child from the Harvard public schools
14. An IEP meeting for Wormser's child was scheduled for June 4, 2005. On June 3, 2005, Wormser's wife, Helen, sent an e-mail canceling the meeting and notifying the school district that the Wormsers were withdrawing their child from the Bromfield School and enrolling the child in Cushing Academy. The e-mail did not include any request for reimbursement of tuition.
15. Wormser's child attended Cushing Academy beginning in the 2005-2006 academic year.
16. Cushing Academy was not a school approved by the DOE.
D. District-wide special education concerns
17. Jefferson took over as superintendent on July 1, 2005.
18. At the time, special education services in the school system generally, and in the Bromfield School particularly, were under criticism for significant systemic deficiencies. According to Jefferson, at Bromfield, "they had two tracks, fast and faster … high powered academics with less supporting services available to struggling learners."
19. In the early 2000s, the New England Association of Schools and Colleges found that, particularly in the Bromfield School, the district had problems with general education teachers incorporating modifications and accommodations for special education students. Jefferson was concerned about "a lack of buy-in" from the regular education teachers, particularly at the Bromfield School.
20. A 2002 coordinated program review ("CPR") conducted by the DOE found 33 violations of special education protocol, including "inconsistent implementation of accommodations and modifications to students in the ninth through twelfth grade," a lack of written notices required to be sent to parents at key junctures, and a failure to send representatives to team meetings who had authority to make decisions about expending the school district's resources. A mid-cycle review completed in March, 2005 indicated that 20 of the 33 deficiencies had not been corrected. On July 13, 2005, about two weeks after Jefferson began his job as superintendent, the DOE cited "serious findings of persistent noncompliance particularly with special education laws" and threatened to withhold funding until the issues were addressed. Working together with the special education director, Jefferson immediately took steps to address the problems.
E. Jefferson's approvals of Wormser's requests for reimbursement
21. As school committee chair, Wormser had regular meetings, biweekly or more frequently, with Jefferson to discuss school business, as he had done with Keoseian. At the end of these meetings, Wormser asked Jefferson about reimbursing him for the cost of the Cushing Academy tuition.
22. On November 3, 2005, Wormser e-mailed Horn asking him to meet about an independent evaluation of his child that had been done and "to discuss how we can partner on providing [our child] the services that [our child] is now receiving." To Horn, the "partner" language meant Wormser would be looking for reimbursement.
23. Horn agreed to meet on November 14, 2005, but noted that a team meeting would have to be held in order to consider the evaluation for determining the need to amend the district's proposed IEP. A team meeting was scheduled for January 17, 2006.
25. There was a possibility that the Wormsers were going to bring their child back in to the public school system, so they needed an appropriate IEP in place. The IEP team concluded that placement at the Bromfield School was appropriate.
26. Nobody from Cushing attended the IEP meeting on January 17, 2006. Jefferson found this absence "procedurally confusing." He also stated that "a deficiency in the process" was that the team did not include a single individual from the Harvard public schools who had taught or observed Wormser's child or had consulted with anyone from Cushing. The student's placement at Cushing was not discussed.
27. There was no discussion at the meeting on January 17, 2006 about reimbursement of the Cushing Academy tuition.
28. Jefferson had conducted a survey of parents who had removed their children from the public school district. On February 22, 2006, Helen Wormser sent a response to Jefferson's out-of-district survey that identified concerns about the services her child had been receiving at the Bromfield school. In February, 2006, Jefferson met with Paul Wormser and reviewed Harvard's IEP, evaluations, report cards and records regarding his child's abilities and academic progress at Cushing. At some point, he checked Cushing's website.
29. Jefferson acknowledged that accommodations and modifications included in the IEP for Wormser's child were the types of accommodations and modifications which, based on the CPR and mid-cycle review, were not being fully carried out by the Harvard staff.
30. Jefferson received an e-mail dated March 6, 2006 from Wormser indicating that the Wormsers wanted to seek reimbursement of their child's private school tuition. Jefferson informed Wormser that he wanted to consult with the executive director of a special education collaborative.
31. In a letter to Horn dated April 26, 2006, Wormser requested either reimbursement of the academic program annual cost at Cushing, $19,000, or the expense that would have been incurred to provide services to his child in-district, $15,000.
32. Wormser did not file a request for a due process hearing at the BSEA with regard to his request for reimbursement.
33. Horn conveyed Wormser's request to Jefferson. Horn told Jefferson that he opposed the placement of Wormser's child at Cushing. Horn objected because the IEP team at its most recent meeting in January felt they had come up with an appropriate in-district program for the student. He also told Jefferson that the Cushing Academy was not approved by the Department of Education and that if the IEP team developed a placement out of district, it would be to an approved school.
34. Horn also objected to the reimbursement because the school would be making a direct reimbursement to a school committee member, which would be difficult to explain because ordinarily they only made direct reimbursements for a summer service that the school cannot provide. Jefferson nonetheless instructed Horn to go ahead with the reimbursement.
35. Jefferson did not file a § 23(b)(3) disclosure prior to considering or approving Wormser's requests for reimbursement.
36. After Wormser requested reimbursement, Jefferson did not call another IEP team meeting and did not ask Horn to do so. He did not speak with members of the IEP team for Wormser's child or anyone at Cushing.
37. On May 22, 2006, Horn notified the district's special education attorney of the superintendent's request to draft an agreement reimbursing the Wormsers in the annual amount of $15,000 for educational expenses beginning July 1, 2006.
38. The superintendent typically signs settlement agreements for the special education department because he is representing the school district.
39. When the first draft of the reimbursement agreement with Wormser came back from the school district's special education attorney on June 5, 2006, Jefferson's name was in the signature block. Before it was sent to Wormser, Jefferson asked Horn to put Horn's name on it instead of Jefferson's.
40. On June 8, 2006, by e-mail, Jefferson informed the Wormsers that he had approved a letter that would come from Horn regarding partial payment for their child's placement. Horn followed up with a letter to Wormser dated June 19, 2006. A draft agreement sent on June 19, 2006 provided reimbursement of $15,000 per year for the 2006-2007 and 2007-2008 school years.
41. A week later, on June 26, 2006, Wormser signed an evaluation of Jefferson's performance during the 2005-2006 school year. Willie Wickman, who replaced Wormser as chair in early April, 2006, prepared a composite evaluation representing the input of all five committee members, including Wormser. As a result of his performance evaluation, Jefferson received a yearly increase.
42. Wormser did not file a § 23(b)(3) disclosure before taking part in Jefferson's performance evaluation.
43. On July 11, 2006, Wormser responded to the draft agreement by writing a letter to Horn requesting reimbursement for the 2005-2006 school year as well, with a contingency for the 2008-2009 school year. Jefferson approved the addition of the 2005-2006 school year, and Horn sent Wormser another draft agreement.
44. Again, on August 15, 2006, Wormser wrote to Horn requesting an amendment including a contingency for reimbursement for his child's senior year. In an e-mail to Horn, Jefferson referred to these as "friendly amendments."
45. The attorney's final draft of the agreement dated September 18, 2006 again included Jefferson's name in the signature block. The final agreement dated September 26, 2006, however, was signed by Horn.
46. The final agreement provided for reimbursement of $15,000 for the 2005-06, 2006-07 and 2007-08 school years, with a contingency for payment of $15,000 for the 2008-09 school year.
47. Wormser received two checks for $15,000 each for the 2005-2006 and 2006-2007 school years on October 2 and November 22, 2006. No further payments were made under the agreement because the Wormsers moved out of the district.
IV. CONCLUSIONS OF LAW REGARDING WORMSER
A. Wormser violated §23(b)(2) by using his position as school committee member to secure $30,000 in reimbursement through direct negotiations with his subordinate.
Petitioner alleges that, in violation of G.L. c. 268A, § 23(b)(2), Wormser knowingly or with reason to know, used his position as a school committee member to secure from Jefferson, his subordinate, an unwarranted privilege for himself that was not in compliance with procedural requirements and not available to similarly situated parents of special education students who had unilaterally removed their children from the school district. Wormser asserts that he made clear that he was dealing with the superintendent in his capacity as a parent, and that in approaching the superintendent, he was only doing the same thing that parents were encouraged to do.
1. Undisputed elements
With regard to the elements of a § 23(b)(2) violation, it is undisputed that, as a school committee member, Wormser was a municipal employee for purposes of the conflict of interest law at the time of the relevant events. In receiving $30,000 from the school district, Wormser also indisputably secured a privilege of substantial value, i.e., having a value greater than $50. See Comm. v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976), EC-COI-89-32.
2. Use of position
The Commission has long recognized that because the relationship between a superior and a subordinate is inherently coercive, a superior will violate § 23(b)(2) by requesting something of personal benefit and of substantial value from a subordinate. See In re Foresteire, 2009 SEC ----. For this reason, the Commission has found that a superior may not use his position to enter into a private business relationship with a subordinate, even one that is financially beneficial to the subordinate, unless the subordinate initiates the contact, the arrangement is voluntary on both sides, and the superior files a public disclosure explaining these facts. See EC-COI-92-7. The same principle is relevant here, where Wormser approached Jefferson directly about making a significant personal financial arrangement with him.
The evidence shows that Wormser repeatedly took advantage of official access that he had as school committee chair to superintendents under his authority to make them focus attention on his personal requests for tuition reimbursement. Both Keoseian, the prior superintendent, and Jefferson testified that Wormser repeatedly brought up concerns about, first, his child's educational needs, and, later, tuition reimbursement issues at the end of regular meetings in the superintendents' office about school district business. Wormser paid little heed to Keoseian's instruction that proper procedures had to be followed. The Commission finds that repeatedly bringing up a personal financial matter at the end of meetings about school business was an improper use of Wormser's official position - notwithstanding Wormser's claim to be changing "hats" at the end of the meetings. See In re Travis, 2001 SEC 1014, 1016 (Chairman of the Legislature's joint banking committee violated § 23(b)(2) where he solicited a philanthropic donation from bank executives at the end of a meeting in which banking matters were discussed).
While both Wormser and Jefferson testified that Wormser did not coerce Jefferson into making a deal or threaten punitive action if a deal was not struck, actual coercion of a subordinate need not be demonstrated to prove a § 23(b)(2) violation. The use of position by a superior where there is a danger of coercion is sufficient to establish a violation. See EC-COI-92-7 ("… even if in fact no abuse occurs, the possibility that the public official may have taken unfair advantage of the situation can never be completely eliminated.").
3. Knowingly or with reason to know
Wormser did not shed his official position when, at the end of official meetings, he asked the superintendent to consider his personal request. Under similar circumstances, the Commission sent a Public Enforcement Letter to a city councilor who, after being told that the Department of Public Works would not pick up construction debris, persisted in calling the DPW about removing such debris from a two-family rental property she owned in Lawrence until finally the DPW superintendent drove to the site and ordered a crew to remove it. See In re Marie Gosselin, 2002 PEL 1070. The Commission explained that the city councilor's conduct "constituted a 'knowingly or with reason to know' use or attempted use of your councilor position to request the debris pick up." Id. The Commission commented that her conduct would be interpreted by the staff as an implicit invocation of her official position, particularly where she persisted in asking the DPW to pick up the debris notwithstanding that the DPW informed her that their policy prohibited it, and where she, along with five other city councilors, had the power to affect the DPW budget and remove senior DPW personnel.
Similarly, Wormser had the power along with the other school committee members to evaluate and remove the superintendent, and in fact participated in an evaluation of Jefferson contemporaneously with his direct requests to Jefferson for reimbursement. The Commission finds that Wormser knowingly or with reason to know used his position to secure reimbursement from Jefferson because he knew that Jefferson was his subordinate, and he repeatedly made requests for reimbursement for Jefferson's consideration after being instructed that he instead should follow ordinary procedures.
Wormser contends that he simply took advantage of an alternative available to all parents of special education students since the Notice of Procedural Safeguards urges parents to "first attempt to resolve the matter with local school district officials," including the superintendent. By reason of serving as a school committee member, however, Wormser had obligations under the conflict of interest law that other parents of special education students did not have. In choosing among the available alternatives, he had the obligation to avoid using his official position to impose upon his subordinate to arrange a personally beneficial financial arrangement. Like all other parents, Wormser could have requested an additional IEP meeting, filed an appeal with the BSEA, filed a notice with the DOE program resolution department, or filed a court case. These alternatives would have included third parties in the decision about his reimbursement and would not have caused him to have a conflict of interest. The fact that these alternatives were more expensive or less expedient than informal negotiations with his subordinate was not a justification for ignoring the requirements of § 23(b)(2).
4. Unwarranted privilege not properly available to similarly situated individuals
Horn's reasons for opposing reimbursement and Jefferson's apparent reluctance to sign the agreements with Wormser demonstrated that, as a practical matter, negotiations with the superintendent about reimbursement of private school tuition was an unusual procedure that was not properly available to parents of special education students. The evidence strongly indicates that by reason of his school committee position, Wormser was able to get special consideration from the superintendent of his request for reimbursement and to resolve it by extraordinary means. This evidence will be addressed in greater detail below in the discussion about Jefferson's conduct.
By reason of the deviation from usual procedure, we find that the privilege Wormser received -- an agreement for reimbursement of as much as $60,000 in private school tuition, and actual receipt of $30,000 -- was unwarranted. In reaching this conclusion, we do not decide whether his child's special needs merited placement outside the public school district or whether the amount of reimbursement promised to Wormser was appropriate. Rather, we find that the reimbursement was unwarranted because of the procedure that was followed, without making any determination about the propriety of the result reached.
B. Wormser violated § 23(b)(3) by failing either to disclose his negotiations with Jefferson about reimbursement before participating in an evaluation of Jefferson's job performance or to recuse himself.
Petitioner alleges that Wormser violated § 23(b)(3) by performing his official duties as a school committee member in connection with Jefferson's performance evaluation after Jefferson had approved an agreement to provide Wormser with private school tuition reimbursement. Petitioner alleges that these were circumstances in which a reasonable person, with knowledge of all the relevant facts, could conclude that Jefferson could unduly enjoy Wormser's favor or influence him in the performance of his official duties. Wormser counters that there was no favoritism toward Jefferson when he participated in evaluating Jefferson's performance during the 2005-2006 year as a result of Jefferson's approval of reimbursement.
The evidence shows that Willie Wickman, then chair of the school committee, compiled input from each of the school committee members and prepared a written evaluation of Jefferson's performance during the 2005-2006 school year based on the input, and that the school committee, including Wormser, signed the evaluation on June 26, 2006. It is reasonable to infer that Wormser's participation in the evaluation commenced some time before he signed the document.
By March 6, 2006, Wormser already had notified Jefferson in writing that he intended to seek reimbursement, and by June 19, 2006, he had received a letter indicating that Jefferson had approved a draft agreement providing for two years of reimbursement at $15,000 per year. A reasonable person readily could conclude that Wormser would show favoritism toward Jefferson when evaluating his job performance if Wormser was in the midst of requesting and receiving approvals from Jefferson of thousands of dollars of payments.
Wormser could have complied with § 23(b)(3) either by filing a disclosure of the facts that could lead a reasonable person to conclude that he might show favoritism to Jefferson or be influenced by him, or by recusing himself from performing his official duties as a school committee member with regard to Jefferson's evaluation. Wormser testified that he could not disclose facts about the agreement he was negotiating with Jefferson and also protect his child's privacy consistent with laws requiring confidentiality of school records and prohibiting the release of personally identifiable information  about a student.
Federal regulations require states to have policies and procedures in effect to ensure that public agencies in the state involved in education comply with requirements protecting the confidentiality of personally identifiable information collected, used or maintained by the schools. 34 CFR § 300.123. The fact that a child attends a school, however, is a fact known to many people. In addition, the regulations, which primarily govern what information schools may release from school records, clearly do not prohibit parents from publicly discussing their children's educational needs and placement generally with third parties. Even with respect to information over which the schools have control, both federal and state law provide for disclosure of school records or personally identifiable information from a student record with the consent of the student's parent. See 34 CFR § 300.622(a); 603 CMR 23.07(4).
Consequently, Wormser had the authority to disclose general circumstances regarding his child if he needed or chose to do so. If he wished to maintain the privacy of personally identifiable information regarding his child, he could have disclosed that he had received or was seeking approval from the superintendent of reimbursement of private school tuition at the time he had the task of evaluating the superintendent's performance.
In any event, if Wormser chose not to file a disclosure, his obligation under § 23(b)(3) was to recuse himself from participating in Jefferson's performance evaluation, and he failed to do so. Accordingly, we find that Wormser violated § 23(b)(3).
V. CONCLUSIONS OF LAW REGARDING JEFFERSON
A. Jefferson violated § 23(b)(2) by deviating from ordinary procedure to secure reimbursement of $30,000 of private school tuition costs for his superior.
Petitioner alleges that Jefferson, by failing to engage in an appropriate inquiry and otherwise failing to follow proper special education procedures, knowingly used his position as superintendent of the Harvard public school district to secure for Wormser, who was his appointing authority and supervisor, reimbursement of the cost of private school tuition. Petitioner alleges that the reimbursement paid to Wormser as a result of this process was an unwarranted privilege of substantial value not properly available to other parents of Harvard public school students. Jefferson counters that he followed authorized procedure and negotiated with Wormser in his capacity as a parent without taking his school committee position into account.
1. Undisputed elements
Again, there is no dispute that Jefferson, as superintendent, was a municipal employee or that the privilege Wormser received was of substantial value.
2. Knowing use of position
The evidence indicates that Jefferson exercised his authority to provide reimbursement to Wormser over the objection of the special education director and through a procedure that, if not unprecedented, was far from typical. The process consisted of speaking to Wormser and reviewing evaluations and records regarding Wormser's child. The student's IEP team had recommended a public school placement. Jefferson's predecessor, Keoseian, indicated that he had never overridden the recommendation of a student's IEP team, but Jefferson did not even consult the IEP team before approving reimbursement of both past and future tuition at Cushing. Despite noting that the IEP team meeting was deficient because no Harvard public school teachers familiar with Wormser's child had attended, and despite observing that it was "procedurally confusing" because nobody from Cushing Academy had attended, Jefferson did not speak with any teacher who had taught the student, either in the public school district or at Cushing, and he did not call another IEP team meeting. The placement was at an unapproved school, whereas Horn and the team ordinarily selected only approved schools.
Jefferson instructed Horn to change Jefferson's signature block to Horn's, saying that "it wouldn't look right." Jefferson's apparent attempt on two occasions to avoid accountability for signing the reimbursement agreement with Wormser indicates that Jefferson himself was conscious that the process he followed with Wormser was a deviation from ordinary procedure.
3. Unwarranted privilege
In precedent, the Commission has found that deviation from the usual procedure by which a privilege is granted may be the basis for finding that a privilege was unwarranted.  Based on the facts outlined above, we find that the process Jefferson followed was objectively unusual and that the reimbursement granted by means of this process was unwarranted.
In this regard, we credit Horn's testimony that paying direct reimbursement to a school committee member was a departure from ordinary procedure. Horn testified that he thought this was a complex and unusual case not because of the student's disability, but because "there were other factors going on in that we weren't following process and there was an appearance that something was happening behind the scenes." According to Horn, what made it complex and unusual was "how it was being handled in-house."
Like Wormser, Jefferson points to the Notice of Procedural Safeguards as proof that negotiations between parents and local officials, including the superintendent, were not only allowed but encouraged. Neither the Notice of Procedural Safeguards nor the testimony of any witness suggests that a superintendent has authority to override an IEP team's decision about placement, disregard the IEP team procedure and make a unilateral decision, based only on his own cursory assessment of limited written information, to provide direct reimbursement to a parent who is also the superintendent's superior. Horn's testimony makes clear that, at least during his tenure in the Harvard Public School district, reimbursement of private school tuition had not previously been paid to any parent by means of a process of this type.
Jefferson argues that evidence regarding another contemporaneous matter indicates that Wormser would have been entitled to a similar result anyway, whether he negotiated directly with Jefferson or instead followed the BSEA hearing and mediation procedures. On July 26, 2006, the Harvard school district reached an agreement to reimburse a former school committee member for a unilateral placement. Like Wormser, the former school committee member had transferred an immediate member of her family to an unapproved private school after an IEP team recommended placement in the Harvard public schools. The parent proceeded to mediation at the BSEA, and the parties' attorneys negotiated an agreement reimbursing tuition for four school years. Jefferson contends that, by comparison with this case, the process he followed with Wormser saved the district money with respect to both the amount reimbursed and attorneys' fees. As additional support, Jefferson points to Horn's testimony that the settlement for $15,000 for Wormser's child was the lowest settlement they otherwise had in Harvard for out-of-district placements.
These arguments which focus on the result rather than the process miss the point. By deviating from proper procedure, Jefferson gave Wormser easier access to special education money than other parents of special needs students were able to enjoy. The unwarranted privilege was that any of the reimbursement to Wormser was received by way of an unusual deviation from routine, and one that was made only for Wormser.
4. Privilege not properly available to similarly situated individuals
The only other evidence about a parent who received reimbursement from the Harvard public schools after unilaterally removing a student from the district was about a former school committee member who followed usual procedures. Apart from the interaction with Wormser, there was no evidence of any other instance in which Jefferson or any other Harvard superintendent negotiated a resolution directly with a parent about private school tuition reimbursement. On the basis of the evidence, we find that the process by which Jefferson reached the agreement under which the school paid Wormser $30,000 was not available to similarly situated parents of special education students in the Harvard public school district.
Jefferson points to significant evidence that when he took over as superintendent, special education was in crisis in the district and particularly in the Bromfield School which Wormser's child had attended. Jefferson touts his direct negotiations about Wormser's request for reimbursement as an individualized response in the midst of this crisis. The general crisis excuse would be convincing only if Jefferson paid individual attention to each one of the special education students affected by the crisis. There was no evidence that the general crisis caused Jefferson to break from routine to attend to the financial concerns of any other parent of a special needs student but Wormser. 
B. Jefferson violated § 23(b)(3) by performing official duties with regard to reimbursing Wormser for private school tuition without filing a disclosure explaining that he was negotiating directly with his superior.
As previously discussed, Horn's objections to the process that Jefferson followed, and Jefferson's instructions to substitute Horn's signature for his own signature prove that both Horn and Jefferson had actual concerns at the time of Jefferson's negotiations with Wormser about an appearance that Jefferson was showing favoritism toward his superior. On the basis of the evidence, with regard to § 23(b)(3), we agree with Petitioner that a reasonable person, with knowledge of all the relevant facts about the informal negotiations between Jefferson and Wormser regarding reimbursement, could conclude that Wormser, Jefferson's superior, could unduly enjoy his favor or influence him in the performance of his official duties. Prior to commencing the negotiations, Jefferson filed no disclosure as § 23(b)(3) required him to do.
Jefferson argues that he could not file a § 23(b)(3) disclosure because he would violate strict federal and state laws prohibiting him from disclosing personally identifiable information about a student. In particular, he contends that he could not identify Wormser because it would provide information from which it would be possible to identify Wormser's child. In favor of his position, Jefferson cites testimony by Attorney Terri Williams Valentine, Education Specialist in the Center for Special Programs at the Department of Elementary and Secondary Education (formerly, the DOE), that there was no way that a school official could report to a town official concerning the diagnosis or the educational placement of a student in a manner that could identify the student.
We find, however, that Jefferson's meticulous compliance with the laws concerning student confidentiality did not excuse his total disregard for the requirements of the conflict of interest law. First, as previously stated, the fact that a child attends a school is not confidential, but rather is known to many members of the public. Second, Jefferson's own witness, Attorney Valentine, conceded that she was not aware of any statute or regulation that would have prohibited Jefferson from satisfying the requirements of § 23(b)(3) by filing a disclosure stating that a school committee member had approached him to discuss tuition reimbursement, without identifying the school committee member. Jefferson has failed to explain how such a § 23(b)(3) disclosure would disclose a school record or personally identifiable information about Wormser's child. In any event, if he was convinced that he could not file a § 23(b)(3) disclosure without violating the student's privacy rights, Jefferson could have declined to engage directly in informal negotiations with Wormser and left Wormser with the entirely viable option of following the procedures available to all parents.
At the time that Wormser engaged in the conduct that violated § 23(b)(2) and § 23(b)(3), the conflict of interest law provided for a maximum penalty of $2,000 for a violation of each section. Based on our finding that he violated both sections of the law, we assess a civil penalty against Wormser of $4,000.
For Jefferson's violations of § 23(b)(2) and § 23(b)(3), Jefferson is ordered to pay a civil penalty of $4,000.
DATE AUTHORIZED: April 16, 2010
DATE ISSUED: April 28, 2010
(a) The name of the child, the child's parent, or other family member;
(b) The address of the child;
(c) A personal identifier, such as the child's social security number or student number; or
(d) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.
 See In re Diane Wong, 2002 SEC 1077 (MBTA's Assistant General Manager for Organization secured an unwarranted privilege for her son-in-law where, after an initial review by an RFP review committee, she unilaterally selected his firm absent further input from the committee); In re Robert Hanna, 2002 SEC 1075, 1075-176 (submission of bid that Highway Surveyor for the Town of Brimfield sought and obtained from a contractor after the deadline was "an unwarranted privilege as it was offered after the deadline and/or it was an unwarranted exemption as it deviated from and was an attempt to circumvent the proper bidding procedure."); In re Ronald J. D'Arcangelo, 2000 SEC 962 (requests by chief of probation for "consideration" by clerk magistrate with regard to motor vehicle citations issued to his relatives or friends were for an unwarranted privilege; dismissal based on such requests was not properly available to similarly situated individuals facing similar penalties).
 By analogy, and with reference back to the Gosselin matter cited earlier, concerns would be raised under § 23(b)(2) if a city councilor called the Department of Public Works when the garbage collection system was in crisis and said, "I'm not wearing my city councilor hat now, I'm wearing my homeowner hat, and I need to have my trash picked up," and the DPW superintendent organized a special garbage pick-up only for the city councilor.