In the Matter of Elaine Bush

 

July 13, 1995

 

Disposition Agreement



This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Elaine
Bush ("Bush") pursuant to s.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.
268B, s.4(j).



On June 6, 1995, 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 Bush. The
Commission has concluded its inquiry and, on July 11, 1995, found
reasonable cause to believe that Bush violated G.L. c. 268A.

 

The Commission and Bush now agree to the following findings
of fact and conclusions of law:

 

1. At all relevant times, Bush was employed as the
athletic director for the Town of Millbury. As such, Bush was a
municipal employee as that term is defined in G.L. c. 268A,
s.1(g).

 

2. In early fall 1994, the Millbury School Department
posted the Millbury High School girls basketball coach position.
The position is annually posted, although the posting is usually
pro forma since most coaches are reappointed. The incumbent
basketball coach had held the position for the previous 12 years.

 

3. The coaching position pays a stipend of $3,375 for the
season.

 

4. Four candidates applied for the coaching position,
including Bush's daughter Jodi Bush ("Jodi") and the incumbent.

 

5. Bush and the Millbury High School principal interviewed
the four candidates. Although Bush was present during her
daughter's interview, she did not ask any questions.

 

6. After finishing the interview process, Bush and the
high school principal decided to forward the names of all the
candidates to the Millbury School superintendent for
consideration. They did not rank the candidates.

 

7. The superintendent, as the appointing authority for the
position, selected Jodi for the coaching job.

 

8. The Commission has no evidence to suggest that Bush was
aware that her actions violated G.L. c. 268A when she
participated in the hiring process for the high school girls
basketball coach.[1]

 

9. Section 19 of G.L. c. 268A, except as permitted by
paragraph (b) of that section, prohibits a municipal employee
from participating as such an employee in a particular matter in
which to her knowledge she or an immediate family member has a

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financial interest. None of the exceptions contained in s.19(b)
apply in this case.

 

10. The determination as to whom to hire as the high school
girls basketball coach was a particular matter.[2]

 

11. As set forth above, Bush participated[3] as athletic
director in that hiring determination by interviewing the
candidates and forwarding their names, including her daughter's,
to the superintendent for appointment consideration.

 

12. Jodi, as an applicant for the girls high school
basketball coaching position, had a financial interest in the
appointment of that position. Bush knew of her daughter's
financial interest at the time she participated in the hiring
process.

 

13. Accordingly, by participating in the girls high school
basketball coach hiring process, as set forth above, Bush
participated in her official capacity in a particular matter in
which she knew an immediate family member had a financial
interest, thereby violating G.L. c. 268A, s.19.[4]

 

14. Bush cooperated with the Commission's investigation.

 

In view of the foregoing violations of G.L. c. 268A by Bush,
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 Bush:
 


(1) that Bush pay to the Commission the sum of two
hundred and fifty dollars ($250.00) as a civil penalty
for violating G.L. c. 268A as stated above;

 

(2) that Bush will act in conformance with the
requirements of G.L. c. 268A, s.19 in the future; and

 

(3) that Bush 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] Ignorance of the law is no defense to a violation of
G.L. c. 268A. In re Doyle, 1980 SEC 11, 13. See also, Scola v.
Scola, 318 Mass. 1, 7 (1945).

[2] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s.1(k).

[3] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s.1(j).

[4] A troubling fact is that the hiring process resulted in
the replacement of an incumbent coach who had held the position
for numerous years.

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