Docket No. 590
In the Matter of John P. Sullivan
Date: August 16, 1999
This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and John P.
Sullivan ("Sullivan") 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.
On February 10, 1998, the Commission initiated, pursuant
to G.L. c. 268B, s.4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by
Sullivan. The Commission has concluded its inquiry and, on
September 23,1998, found reasonable cause to believe that Sullivan
violated G.L. c. 268A.
The Commission and Sullivan now agree to the following
findings of fact and conclusions of law:
1. Sullivan is the Department of Mental Health ("DMH")
Southeastern ("SE") Area director. As such, Sullivan is a state
employee as that term is defined in G.L. c. 268A, s.1.
2. As the DMH SE Area director, Sullivan is the manager
responsible for all DMH personnel and facilities in that region.
3. Sylvia Killion ("Kill ion")was, during the time here
relevant, the DMH SE Area Management Information Systems ("MIS")
4. As the DMH SE MIS director, Killion was responsible
for all the computer hardware and software issues in the region. In
particular, wide area network ("WAN") covering the entire region.
Her office was in the Brockton Multi-Service Center, however, she
also visited the various outlying facilities to deal with MIS
5. Sullivan and Killion did not know one another when she
transferred to DMH from the Executive Office of Administration&
Finance, but their close working relationship at DMH developed into
a close personal
friendship extending outside the office. It extended as well to
their respective families. The friendship of the families was known
to others within the DMH SE Area office. Sullivan did not disclose
this friendship in writing to his own appointing authority prior to
his acting on personnel matters affecting Killion.
6. Killion was employed in a position covered by the Unit
Six collective bargaining agreement between the Commonwealth of
Massachusetts and the National Association of Government Employees.
She was paid on an hourly basis. Sullivan washer supervisor at all
times relevant to this matter.
7. Overtime was covered by Section 7.2 of the Collective
Bargaining Agreement for Unit 6. It provides:
H. Overtime shall be distributed as equitably and
impartially as practicable among persons in each work
location who ordinarily perform such related work in the
normal course of their workweek. Department heads and
union representatives at each location shall work out
procedures for implementing this policy of distributing
8. DMH's policy for the SE Area required full
justification for overtime requests and set specific criteria that
had to be met for each period of overtime requested.
9. Between February 11, 1996, and June 7, 1997, DMH's
available records show Sullivan authorized Killion to work 528
hours of overtime, mostly in 10 hour per week increments. Much of
this overtime work was authorized to be done on weekends at home.
Sullivan signed and authorized all 53 of Killion's overtime slips
as the program manager.[1/]
10. On at least 24 occasions, Killion's overtime slips
lack an articulation of reasons for the overtime, contrary to DMH
11. During this same period of time when DMH payroll
records indicate that Killion individually received 678 hours of
overtime pay, all other SE Area MIS staff employees combined
received a total of 60.5 hours, according to DMH payroll records.
12. There is no evidence before the Commission that
Sullivan, who was the department head at the Brockton location,
attempted to work out a procedure for more equitably distributing
overtime work among SE Area MIS Staff, as required by Section 7.2H
of the Collective Bargaining Agreement.
13. In FY 96 Killion's overtime pay rate was $33.53/hour.
In FY 97 her overtime pay rate was $38.94/ hour. Ten hours of
overtime each week meant an extra $389.40 each week in her check or
an extra $20,284.00 per year.
14. Killion has acknowledged in a disposition agreement
with the Commission, In re Killion, 1999 SEC 936 that she failed to
work a significant number of the overtime hours for which she
15. Killion was authorized to work the following flextime
schedule: Monday through Wednesday 8: 00 a.m. to 5:00 p.m.,
Thursday 2:00 p.m. to 11:00 p.m. and six hours Friday at home. In
her disposition agreement Killion also acknowledges (a) that she
usually arrived at work between 9:00 and 9:30 a.m. on Monday
through Wednesday, and between 3:30 and 4:00 p.m. on Thursday, and
(b) Killion left work almost every Thursday night between 9:30 and
16. Killion was not required to document any work she did
17. Killion has acknowledged in a disposition agreement
with the Commission, In re Killion, 1999 SEC 936 that she did not
work a significant number of the flextime hours for which she
18. As Killion's supervisor, Sullivan had reason to know
that Killion was not performing all the overtime and/or flextime
hours for which she received compensation. This conclusion is based
on the following: (1) Sullivan provided Killion with virtually all
of the DMH SE area overtime, yet there was no particular increase
in her duties to justify that extent of overtime; (2) in violation
of Sullivan's own policy, Sullivan authorized Killion to perform
significant amounts of overtime without any pre-authorization
justification;(3) Sullivan did not require nor did Killion offer
later justification for her overtime hours; and (4) Killion's
family commitments, of which Sullivan was aware, would make it
difficult for her to work any significant overtime and especially
not 678 hours during the time described above.
19. In April 1998, Killion resigned from her position.
20. Section 23(b)(2) G.L. c. 268A prohibits a public
employee from knowingly or with reason to know using or attempting
to use his position to obtain for himself or others an unwarranted
privilege of substantial value which is not properly available to
similarly situated individuals.
21. Sullivan used his position as DMH SE Area director to
authorize Killion to receive compensation for overtime and flextime
hours, even though, as set forth above, Sullivan had reason to know
Killion did not work all the hours for which she received
22. This use of position resulted in Killion obtaining
the unwarranted privilege of receiving compensation for hours she
now acknowledges she did not work.
23. The compensation she received for the hours she now
acknowledges she did not work exceeded $50. Therefore, the
privilege was of substantial value.[4/]
24. The privilege which Killion received was not
available to similarly situated individuals.
25. Thus, by authorizing Killion to receive $50 or more
in compensation for overtime and flextime hours that Sullivan had
reason to know that she did not work, Sullivan used his DMH SE Area
director position to obtain an unwarranted privilege of substantial
value for Killion not properly available to other similarly
situated individuals, thereby violating s.23(b)(2).
26. General laws chapter 268A, s.23(b)(3) prohibits a
public employee from knowingly or with reason to know acting in a
manner which would cause a reasonable person, having knowledge of
the relevant circumstances, to conclude that any person can
improperly influence him or unduly enjoy his 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.
27. By authorizing Killion to receive compensation for
overtime and flextime hours in disproportion to other MIS staff and
by not requiring documentation of such work, Sullivan with reason
to know acted in a manner which would cause a reasonable person
with knowledge of all the relevant circumstances to conclude that
his private relationship with Killion improperly influenced him in
the performance of his official duties, thereby violating G.L. c.
In view of the foregoing violations of G.L. c. 268A by
Sullivan, the Commission has determined that the public interest
would be served by the disposition of this matter without further
enforcement proceedings, on the basis of the following terms and
conditions agreed to by Sullivan:
(1) that Sullivan pay to the Commission the sum of five
hundred dollars ($500) as a civil penalty for violating
G.L. c. 268A, s.s.23(b)(2) and 23(b)(3); and
(2) that Sullivan waive all rights to contest the
findings of fact, conclusions of law and terms and
conditions contained in this Agreement in this or any
other related administrative or Judicial proceedings to
which the Commission is or may be a party.
[1/] DMH was only able to locate 53 overtime slips for Killion
for the period February 11, 1996 to June 7, 1997. These 53 slips
totaled 528 hours of overtime. The payroll records for this 69 week
period. however, indicate that Killion was paid for 678 hours of
[2/] All but one of Killion's slips authorize 10 hours
overtime per week.
[3/] Given the absence of accurate records, it is no"
impossible to approximate how many of these hours were not worked.
[4/] The Commission defines "substantial value"' as anything
with a value of $50. See Commonwealth v. Famigletti, 4 Mass. App.
584 (1976): EC-COI-93-14.
End of Decision