Public Enforcement Letter 90-7

John F. Aylmer
Massachusetts Maritime Academy
P.O. Box D
Buzzards Bay, MA 02532

Date: March 21, 1990

Dear President Aylmer:

As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that as the president of the Massachusetts Maritime Academy (Academy) you invited your family and friends to embark on Academy cruises.  The results of our investigation (discussed below) indicate that the conflict of interest law may have been violated in this case.  In view of certain mitigating circumstances (also discussed below), the Commission, however, does not feel that further proceedings are warranted.  Rather, the Commission has determined that the public interest would be better served by bringing to your attention the facts revealed by our investigation and by explaining the application of the law to such facts, trusting that this advice will ensure your future understanding of the law.  By agreeing to this public letter as a final resolution of this matter, the Commission and you are agreeing that there will be no formal action against you and that you have chosen not to exercise your right to a bearing before the Commission.

I.  The Facts

1.  At all relevant times, you were the president of the Academy. As such you were a “state employee” as defined in G.L. c. 268A, §l(q).

2.  The Academy is a school of higher education sponsored and run by the Commonwealth of Massachusetts.  Its primary focus is to train students to become licensed mariners.

3.  As part of its curriculum, the Academy conducts training cruises.  Most of the student body, along with many faculty members, embark on these cruises.

4.  Included among the persons who have participated in these cruises are so called “observers.”  These observers have included state officials, academy alumni, academy trustees, and other guests.  They have also, from time to time, included your friends and relatives as well as spouses of trustees and academy personnel.  These observers typically did not stay on the entire cruise, but rather on average stayed one to two weeks.

5.  According to you, the rationale for having observers on board is as follows: First, the trips serve an educational and support building function for guests who are unfamiliar with the nature, purpose and operation of the Academy.  Second, guests interact with the cadets, potentially leading to employment opportunities.  Third, having observers on board the cruises gives the cadets the opportunity to learn to interact with distinguished visitors.  Fourth, embarking “mature married couples” as guests provides a stabilizing influence and model of behavior for cadets.  Fifth, the traveling observers represent the Commonwealth of Massachusetts to foreign officials in the various ports of call.

6.  Observers pay the cost of their meals and linen on these cruises. Otherwise, they sail free of charge. (Federal regulations prohibit the Academy from charging fares on these cruises.)

7.  The above-mentioned cruises are taken on the Patriot State, a converted freighter owned by the U.S. Maritime Administration and provided to the Academy for the purpose of training cadets.  The accommodations are relatively spartan.  In addition, there is no entertainment center or swimming pool.

8.  The other maritime academies in the United States have varying policies regarding observers.  The Great Lakes Maritime Academy has no ship of its own and assigns its cadets to commercial shipping companies.  Texas Maritime Academy is a college within Texas A&M.  No observers are permitted on board ship.  California Maritime Academy permits no observers but does permit the spouses of officers as well as its trustees and their spouses to embark.  New York Maritime Academy not only permits observers at the discretion of its admiral, they encourage their trustees and their spouses as well as local guidance counselors and other influential people to travel with the ship.  The U.S. Merchant Marine Academy has no ship of its own. The Maine Maritime Academy uses observers but does not permit the spouses of officers to travel aboard the ship.  The president of that academy has full discretion in awarding berths to observers.

9.  Regarding the 1988 Academy cruise,[1] you decided to allow several observers on board including your spouse, your father, and one couple who are close friends of you and your spouse.

10.  Regarding the 1989 cruise,[2] you invited your spouse, the same couple mentioned above that went on the 1988 cruise, and a couple who are your brother­ in-law and sister-in-law. (The woman is your spouse’s sister.)

11.  The Academy’s trustees were aware of the fact that you invited observers on these cruises, and at least some of them were aware that this included your spouse, and other family members and friends.  Indeed, after the media raised questions regarding the identity of your guests on the 1989 cruise, the trustees voted on April 7, 1989 as follows:

That the Board of Trustees, Massachusetts Maritime Academy, after a review of the long­ standing Academy practice of embarking observers aboard the Patriot State and noting that this practice has been a consistent Academy policy, and in consideration of the Chancellor’s letter of 21 March to the Chairman of the Board that the Board of Trustees is of the opinion that no Federal or State law, rule, regulation, policy
or guideline has been violated.  Nor have any taxpayers’ monies been expended in conjunction with such policy....

The trustees then voted to create a sub-committee to study the observer policy questioned.  On November 3, 1989, the trustees unanimously voted to adopt the recommendations of this sub-committee.  This policy formally gives you complete discretion to allow, on a space available basis, anyone to sail with the ship and to consider the ship an “extension of the campus.”  Your choices may be reviewed by the trustees and no costs are to be paid by the Commonwealth or the Academy for any observer on any of the cruises, according to this vote.

II. The Conflict Law

As the Academy president, you have been a state employee for the purposes of the conflict of interest law, G.L. c. 268A.  Section 6 prohibits a state employee from participating as such in a particular matter in which to his knowledge he, or a member of his immediate family, among others, has a financial interest.

In our view, each decision to allow an observer to embark on a cruise was a particular matter.  Inasmuch as you made those decisions, your involvement was clearly personal and substantial. While it is not quantifiable, it is obvious that the observers had a financial interest in these cruises.[3]  Therefore, where your decisions involved your spouse, your spouse’s sister, or your father, you participated in particular matters in which you knew an immediate family member had a financial interest.[4]  Absent your satisfying the exemption in §6[5] or otherwise having a defense, your inviting immediate family members on these trips would appear to violate §6.

You do not appear to have satisfied the requirements of the §6 exemption. While your appointing authority may have been aware of some, or even all of these decisions, you did not disclose the above-discussed decisions in writing to your appointing authority nor did your appointing authority make the appropriate written determination as is required by the statute.[6]

Accordingly, we do not view the trustees’ knowledge of your conduct, or, for that matter, their ratification vote formally giving you discretion to invite anyone you choose, as complying with §6’s requirements.  The trustees do not have the authority to, in effect, amend §6.  Consequently, if in the future you are to invite an immediate family member to embark on one of these cruises, except as discussed below, you must follow the written disclosure and authorization mechanism discussed above.

The exception to the foregoing involves your own spouse.  As we understand it, a spouse of a president of an institution of higher education is expected to be actively involved in the activities of the campus.  While this apparently exists to a greater or lesser extent at various institutions in the Commonwealth, and while this expectation may be becoming somewhat outmoded, nevertheless, your position is that as part of the terms and conditions of your employment, your spouse was expected to and did perform an active role on campus, which includes embarking on the cruises.  The Commission has previously taken the position that where a course of conduct is an inherent part of the original terms and conditions of employment, it will not be considered a conflict.  See, e.g. EC-COI-87-19.  Accordingly, we do not view your decision to allow your spouse on these cruises as violating §6.

Your conduct also raises questions under §23, the so-called “code of conduct” section of G.L. c. 268A.  Section 23 prohibits a state employee from using or attempting to use his position to secure an unwarranted privilege of substantial value not otherwise available to similarly situated people.[7]  It also prohibits a state employee from acting in a manner which would cause a reasonable person knowing all the facts to conclude that he can be improperly influenced by or someone can unduly enjoy his favor in the performance of his official duties.[8]

By inviting family members, whether immediate or non-immediate family members, and your friends on Academy cruises, you appear to have secured an unwarranted privilege of substantial value for those people[9] and you also appear to have created an appearance of giving preferential treatment to family and friends.  Accordingly, your conduct raises concerns under both §§23(b)(2) and (3).

You argue by way of defense that as to the non­immediate family members and friends, your appointing authority was aware of your inviting these people and these people sailed at no additional cost to the commonwealth.  You point out that the Board of Trustees has now adopted a policy authorizing you to issue such invitations, subject to their review.  Therefore, you maintain, it cannot be said that their sailing involved an unwarranted privilege.

The Commission has serious reservations about an institutional policy which authorizes selected individuals, not currently affiliated with the Academy, to participate in such cruises at no cost other than meals and linen, particularly when the policy results in your inviting family and friends to participate.  While the Commission generally defers to the discretion exercised by an appointing authority (such as the Board of Trustees) when issues are raised under §23 of G.L. c. 268A, the Commission recommends that the Board reconsider its policy in light of the findings contained in this letter.

You also argue that at least the spirit of the disclosure exemption contained in §23(b)(3) was met, and, consequently, that a reasonable person should be precluded from concluding that there was an appearance of favoritism in this situation.  You should, however, be aware that, much as with the §6 issue, unless you make your disclosures in advance and in writing, that appearance of favoritism cannot be deemed precluded.  Therefore, in the future, you must follow the appropriate §6 or §23 disclosure and approval requirements carefully to avoid running afoul of G.L. c. 268A concerns.

III. Disposition

Based on its review of this matter, the Commission has determined that the sending of this letter should be sufficient to ensure your understanding of, and your future compliance with, the conflict of interest law.[10]  This matter is now closed.

 



[1] 1988 cruise visited ports of call including Barbados, the Canary Islands, Naples and Fort Lauderdale.
[2] The 1989 cruise visited ports of call including Port Canaveral, Trinidad and Puerto Rico.
[3] The term “financial interest” means any private economic interest, no matter how small, which is direct, immediate or reasonably foreseeable.  Graham v. McGrail, 370 Mass. 133, 139 (1976).
[4] Your wife’s sister is an immediate family member for purposes of §6.  Your wife’s sister’s husband, though your brother-in-law, is not an immediate family member as that term is defined in G.L. c. 268A, §1.

[5] Any state employee whose duties would otherwise require him to participate in such a particular matter shall advise the official responsible for appointment to his position and the State Ethics Commission of the nature and circumstances of the particular matter and make full disclosure of such financial interest, and the appointing official shall thereupon either:

(1) assign the particular matter to another employee; or

(2) assume responsibility for the particular matter; or

(3) make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the commonwealth may expect from the employee, in which case it shall not be a violation for the employee to participate in the particular matter. Copies of such written determination shall be forwarded to the employee and filed with the State Ethics Commission by the person who made the determination. Such copy shall be retained by the Commission for a period of six years.

[6] Compare In the Matter of John Hanlon, 1986 SEC 253, where the Commission stated as to these disclosure and determination procedures:

These provisions are more than mere technicalities.  They protect the public interest from potentially serious harm. The steps of the disclosure and exemption procedure - particularly that the determination be in writing and a copy filed with the Commission - are designed to prevent an appointing authority from making an uninformed, ill-advised or badly motivated decision.

[7] Section 23(b)(2).
[8] Section 23(b)(3). Like §6, §23(b)(3) has an exemption: “It shall be unreasonable to so conclude as such employee has disclosed in writing to his appointing authority, or, if no appointing authority exist, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.”
[9] With the exception of your spouse for the reasons discussed above.
[10] The Commission chose to resolve this matter with a public enforcement letter because your appointing authority does appear to have been aware of your conduct in advance, and the financial interests involved here were relatively small.