Public Education Letter
June 3, 2013
c/o Christopher G. Timson, Esq.
Law Offices of Christopher G. Timson, P.C.
89 Access Road, Suite 21
Norwood, MA 02062
Re: Public Education Letter
Dear Mr. Connors:
As you know, the State Ethics Commission conducted a preliminary inquiry into whether you, in your capacity as a municipal employee, violated (1) section 19 of the conflict of interest law, G.L. c. 268A, by participating in crafting bid specifications for a school security equipment installation contract while planning to submit a bid for that contract through your private company, Flagship Security; and (2) section 20 of G.L. c. 268A, by repeatedly entering into contracts with the East Bridgewater Police Department through Flagship Security. Based on the staff’s investigation, the Commission voted on January 18, 2013, to find reasonable cause to believe that you violated G.L. c. 268A, §§ 19 and 20.
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. In particular, you should be aware that the conflict of interest law broadly defines the term “municipal employee” and includes individuals who are performing services for, or holding a position within, a municipal agency, even if their duties are limited or ill-defined, and even if they are providing those services without compensation.
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.
You were a shareholder and president of Flagship Security Systems, Inc. (“Flagship Security”), a corporation organized in May 2003 to install and repair security/fire/life safety systems, among other services.
In or about 2003, the then-East Bridgewater police chief appointed you as an East Bridgewater special police officer, an unpaid position. It is our understanding that individuals are appointed as special police officers for specific purposes, e.g., traffic direction, crossing guards, etc. The police chief who initially appointed you said he did so because you were repairing the Police Department radios through Flagship Security, and, as a special police officer, you could direct trespassers to leave the police radio tower.
The current police chief told us that since 2005, he has annually reappointed you as a special police officer so you would be covered by the town’s insurance when you took cruisers home to repair the radios. Your last reappointment was in 2011. We are advised that as a special police officer, you had no shifts or assigned duties and wore neither a badge nor a uniform.
In or about 2007, you assisted the East Bridgewater Police Department in applying for a federal Secure Our Schools grant to install security equipment in local schools and the police station by providing equipment cost estimates. You indicated that you did not provide this assistance as a special police officer. You later provided information for incorporation into the bid specifications for a contract to install the security equipment while knowing that you intended to bid to on that contract through Flagship Security.
Invoices from Flagship Security to the East Bridgewater Police Department indicate that from 2008-2011, you repeatedly sold security-related equipment and services to the East Bridgewater Police Department under the Secure Our Schools grant. You told us that Flagship Security’s gross earnings were about $400,000 for these sales. In 2009, you sold goods and services totaling approximately $15,000 to the East Bridgewater Police Department for the renovation of its dispatch area. As shareholder and president of Flagship Security, you received compensation from Flagship Security in relation to these transactions.
As a special police officer, you were a “municipal employee” as that term is defined in G.L. c. 268A, § 1(g), which states, in part, the following:
“Municipal Employee”, a person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis . . . .
(emphasis added). You do not need to be a full-time, paid municipal employee in order to be subject to the conflict of interest law. An individual appointed to a municipal position, paid or unpaid, with or without defined duties, is a municipal employee under the conflict of interest law. While it appears your duties as a special police officer were poorly defined, you were a municipal employee for the purposes of the conflict of interest law because you held an appointed position in the Town of East Bridgewater from 2003 through 2011. You were also a municipal employee because you performed services for the East Bridgewater Police Department by providing equipment cost estimates for the Secure Our Schools grant and by providing bid specification information for the equipment installation contract. Consequently, your conduct, as described above, raises concerns under §§ 19 and 20 of G.L. c. 268A.
Section 19, in relevant part, prohibits a municipal employee from participating as such an employee in a particular matter in which to his knowledge he, or a business organization in which he is serving as officer, director, trustee, partner or employee, has a financial interest. A municipal employee may avoid violating § 19 if the municipal employee advises his appointing authority of the nature and circumstances of the particular matter, makes full disclosure of his financial interest, and receives an advance written determination from the appointing authority that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the municipality may expect from the employee.
The decision in or about 2007 to create bid specifications for the installation of security equipment under the Secure Our Schools grant was a particular matter. You participated as a municipal employee in that particular matter by providing information for incorporation into the bid specifications for the contract to install the security equipment. At the time you provided that information, you intended to bid on that contract through Flagship Security. Therefore, you participated as a municipal employee in a particular matter in which, to your knowledge, you had a financial interest, and the Commission found reasonable cause to believe that you violated § 19.
As an appointed municipal employee, you could have sought a § 19(b)(1) determination from the police chief, your appointing authority, which would have allowed your participation despite your financial interest. You did not do so.
Section 20 prohibits a municipal employee from having a financial interest in a contract made by a municipal agency of the same city or town, in which the city or town is an interested party of which financial interest he has knowledge or has reason to know.
As a special police officer, you were a municipal employee of the East Bridgewater Police Department. Flagship Security invoices indicate that from 2008-2011, you repeatedly sold goods and services to the East Bridgewater Police Department. You had a financial interest in those contracts between the East Bridgewater Police Department and Flagship Security. Therefore, the Commission found reasonable cause to believe you violated § 20.
You should be aware that Section 20 has several exemptions, although it does not appear that you were eligible for any of them. The only one that potentially could have applied to your situation was § 20(d), and that exemption would have applied only if the position of special police officer was designated as a “special municipal employee.” Section 20(d) allows a special municipal employee to seek an exemption by filing a statement making full disclosure of his financial interest with the town clerk and obtaining Board of Selectmen approval of the exemption. That your special police officer position title had the word “special” in it did not make you a “special municipal employee” within the meaning of § 20(d). (You do not contend that you were misled by the use of the term “special” in your special police officer title into concluding that you were a special municipal employee.) Special municipal employee status for conflict of interest purposes can only be achieved by the Board of Selectman voting to classify all equivalent positions as special municipal positions. The East Bridgewater Board of Selectman has not classified special police officer positions as “special municipal employee” positions.
The Commission is authorized to resolve violations of G.L. c. 268A with civil penalties of up to $10,000 for each violation. The Commission, however, has chosen to resolve this case with a Public Education Letter rather than by imposing a penalty because it believes the public interest would be best served by doing so. Public officials and employees should understand that individuals who perform services for a municipal agency or who serve in appointed unpaid municipal positions, including those with limited or ill-defined duties, are not exempt from the conflict of interest law. The purpose of this Public Education Letter is to emphasize that point.
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.
This matter is now closed.
Very truly yours,
Karen L. Nober