Docket No. 395
In the Matter of William E. Howell
June 3, 1991
This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and William E. Howell (Mr. Howell) pursuant to section 5 of the Commission’s Enforcement Procedures. This Agreement constitutes a consented to final Commission order enforceable in the Superior Court pursuant to G.L. c. 268B, §4(j).
On June 19, 1989, 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, involving Mr. Howell, the former chief of the Industrial Accident Division in the Department of the Attorney General. The Commission concluded its inquiry on September 12, 1990, and by majority vote, found reasonable cause to believe that Mr. Howell violated G.L. c. 268A, §5.
The Commission and Mr. Howell now agree to the following findings of fact and conclusions of law:
1. Mr. Howell was the division chief of the Department of the Attorney General’s Industrial Accident Division (the Division) from March 5, 1975 until January 20, 1987. As such, he was responsible for all of the Division’s functions, and was a state employee within the meaning of G.L. c. 268A.
2. At the time Mr. Howell was chief, the Division had the responsibility for representing the interests of the Commonwealth in workers’ compensation claims made by state employees. (The Commonwealth is self-insured regarding the workers’ compensation claims of state employees.) During that time, it was the responsibility of the state agency employing the employee to file, within 48 hours after the injury, a “notice of injury” with the Public Employee’s Retirement Administration (PERA). Files with potentially compensable claims were then forwarded to the Division for review. The purpose of this review was to make a recommendation whether to investigate the matter further, or pay any worker’s compensation that would be due. In general, if the employee were out of work for six consecutive days as a result of an injury sustained during work, he would have a right to compensation. If the Commonwealth failed to pay the compensation the employee believed was due, the employee had the right to file a worker’s compensation claim with the Industrial Accident Board (IAB) (a state agency separate from the Division). The Division would then defend its position in front of the IAB.
3. Mr. Howell resigned as Division chief effective January 21, 1987. A few weeks thereafter, Mr. Howell began an association with attorney Augustus Camelio. Mr. Howell and Mr. Camelio were not partners. Rather Mr. Camelio paid Mr. Howell $100 a day to represent Mr. Camelio’s private clients regarding workers’ compensation claims.
4. A Ms. Zwyrbla, a state employee, was injured on October 28, 1984.
5. On February 28, 1985, the Division approved an agreement as to compensation for Ms. Zwyrbla pursuant to which she received $207.53 per week from November 2, 1984 to January 20, 1985, for a total amount of $2,371.77.
6. On June 10, 1987, Mr. Camelio, representing Ms. Zwyrbla, filed a G.L. c. 152, §36 claim on behalf of Ms. Zwyrbla. This claim sought compensation for the disfigurement she sustained from her October 28, 1984 injury.
7. On June 11, 1987, Mr. Howell requested an opinion from the Commission as to how G.L. c. 268A would apply to his privately representing state employees regarding their workers’ compensation claims. Included in the questions he raised in this request was a specific inquiry as to how §5 would apply to his representing state employees regarding §36 claims.
8. On or about July 27, 1987, while his request for an opinion was still pending, Mr. Howell, representing Ms. Zwyrbla, attended a conciliation hearing and agreed to the resolution of the foregoing §36 claim. Ms. Zwyrbla was paid $950 for that §36 claim.
9. Section 5(b) prohibits a former state employee, within one year after his last employment has ceased, from appearing personally before any court or agency of the Commonwealth as agent or attorney, for anyone other than the Commonwealth in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest and which was under his official responsibility as a state employee at a time within a period of two years prior to the termination of his employment.
10. The determination as to what compensable claims Ms. Zwyrbla had as a result of her October 24, 1984 accident was a particular matter as defined in G.L. c. 268A, §1(k).
11. The determination as to what compensable claims Ms. Zwyrbla had as the result of her October 24, 1984 accident was within Mr. Howell’s official responsibility when the Division approved the agreement as to compensation on February 28, 1985, less than two years prior to Mr. Howell resigning.
12. The foregoing conciliation hearing and agreement for compensation were in connection with the determination of what compensation Ms. Zwyrbla received as the result of her October 24, 1984 injury.
13. By attending the foregoing conciliation hearing and executing the agreement for compensation, Mr. Howell appeared before the IAB within the meaning of §5(b).
14. Being self-insured for these claims, the Commonwealth had a direct and substantial interest regarding the foregoing determination.
15. Therefore, by appearing, within one year after his last employment with the Commonwealth had ceased, before the IAB as attorney for Ms. Zwyrbla in connection with Ms. Zwyrbla’s §36 claim where the issue of what compensable claims Ms. Zwyrbla had as a result of her October 24, 1984 accident was within Mr. Howell’s official responsibility within the two years preceding his resignation, Mr. Howell thereby violated §5(b).
16. The Commission sent Mr. Howell a formal opinion (EC-COI-87-27) on July 29, 1987. He received and read the opinion shortly thereafter. The opinion generally reviewed the applicability of G.L. c. 268A, §5 to Mr. Howell’s private representation of state employees workers’ compensation claims. In addition, it specifically addressed the issue of his involvement in §36 claims explaining that such involvement would be deemed to be in connection with the general claim as to the employee’s rights to compensation under the workers’ compensation law for a given injury. Therefore, if an employee were injured and paid compensation benefits within the two years prior to Mr. Howell’s resigning as division chief, he would be barred from appearing before any state agency regarding a §36 claim involving that same injury for one year after his resignation.
17. In view of the foregoing violation of G.L. c. 268A, §5(b), 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 Mr. Howell:
1. that he pay to the Commission the amount of one thousand dollars ($1,000.00) as a civil penalty for his violation of G.L. c. 268A, §5(b); and
2. that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this Agreement in any related administrative or judicial proceeding to which the Commission is or may be a party.