Docket No. 527

In the Matter of Joseph Duggan

June 14, 1995

Disposition Agreement





This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Joseph
Duggan ("Duggan") 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 May 10, 1994, 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 Duggan. The
Commission has concluded its inquiry and, on September 13, 1994,
found reasonable cause to believe that Duggan violated G.L. c.
268A, s.19.

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

1. Duggan has worked for the Hull Lighting Plant
("department") for approximately the last 30 years as a general
foreman, with the exception that between January 1993 and May
1993 he served as the acting manager. As either general foreman
or acting manager Duggan was a municipal employee as that term is
defined in G.L. c. 268A, s.1.

2. As general foreman, Duggan supervises electrical
line construction and maintenance. This a 40-hour a week job, and
there is often overtime involved, in particular when there are
storms.

3. Duggan has two sons that work for the Department,
Steven and Matthew. Steven is a lineman. He began working for
the Department in the early 1980s, and left after several years.
He returned in either 1985 or 1986 and has remained there since.
He is currently a lineman, but sometimes has worked as a lead
lineman. Whether he is a lead lineman or not is determined by
management based on seniority and experience.

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Matthew is also a lineman. He has been with the department
for eight or nine years, the last year on disability.

Duggan also has a brother, Robert, who worked as a lead
lineman for the department until he retired eight or 10 years
ago. In times of emergencies, when experienced lead linemen are
needed, sometimes Robert will be called by management to work.

4. In September 1991, Duggan pointed out to Lighting Plant
management that they had made a mistake in passing over Steven in
filling the lead lineman position, where, according to Duggan,
Steven had superior qualifications, including several years more
experience, than the person being appointed. Duggan recommended
to the Lighting Plant manager that Steven be promoted to the
position of lead lineman. The manager did not accept that
recommendation.

5. By letter dated January 19, 1993, town counsel advised
Duggan that he could not participate in any department personnel
matters involving his two sons' employment, and that the Lighting
Plant Board of Commissioners ("Board") should either make those
decisions or delegate them to another employee. Duggan gave this
letter to the Board. According to then Board Chairman Thomas J.
Sullivan, the Board instructed Duggan to continue to serve as
acting manager but to refer any discrete personnel issues
involving his sons to the Board.

6. While acting plant manager between January 1993 and May
1993, Duggan did the following:

(a) He approved overtime for his son Steven (164
hours, $3,177) and for his son Matthew (41 hours,
$661.74)[1]; and

(b) after a severe storm in March 1993, he hired his
brother Robert to act as a lead lineman. Robert earned
$1,316.56 for 36 hours of work at that time. Duggan
hired Robert for these duties even though two other
linemen had been recently laid off for lack of work.[2]

7. Except as otherwise permitted by that section[3],
G.L. c. 268A, s.19, in relevant part, prohibits a municipal
employee from participating as such in a particular matter in
which, to his knowledge, he or a member of his immediate family
has a financial interest.[4]

8. The personnel decisions described above (recommending
his son Steven for a promotion, approving overtime, hiring his
brother) were particular matters.[5]

9. Duggan participated[6] in those particular matters by
either making the decision himself or recommending action.

10. At the time he so acted, he knew that either a son
and/or a brother, as the case may be, had a financial interest in
the particular matter.

11. Therefore, by so acting, Duggan participated as a
municipal employee in particular matters in which to his
knowledge an immediate family[7] member had a financial interest,
thereby violating s.19.[8]

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

(1) that Duggan pay to the Commission the sum of five
hundred dollars ($500.00) as a civil penalty for the
violations of G.L. c. 268A, s.19; and

(2) that Duggan 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] According to Chairman Sullivan, the Board approved the
payrolls and, therefore, was aware of and, in effect, approved
the overtime Duggan awarded to his sons.

[2] There is a dispute as to whether these other two linemen
were qualified. Sullivan and Duggan assert they were not. The
present Board chairman and manager say they were. In addition,
although this was an emergency, Duggan had the time to pass on
the decision as to who would be hired to the Board chairman. He
did not do so.

[3] None of those exceptions applies.

[4] Section 19(b)(1) provides that it is not a violation of
s.19 if the municipal employee first advises the official
responsible for appointment to his position of the nature and
circumstances of the particular matter and makes full disclosure
of such financial interest, and receives in advance a written
determination made by that official that the interest is not so
substantial as to be deemed likely to

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affect the integrity of the services which the municipality may
expect from the employee. Pursuant to c. 268A, s.24, such
disclosures and authorizations are public records.

[5] "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).

[6] "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).

[7] "Immediate family," the employee and his spouse, and
their parents, children, brothers and sisters. G.L. c. 268A,
s.1(e).

[8] The fact that the Board knew of and was, in effect,
approving Duggan's granting overtime to his sons is a mitigating
factor, although not a defense. The Commission has repeatedly
observed that the s.19(b)(1) disclosure and written authorization
procedure is not a technicality. "The steps of the disclosure
and exemption prodcedure ... are designed to prevent an
appointing authority from making an uninformed ill-advised or
badly motivated decision." In re Hanlon, 1986 SEC 253, at 255.
In any event, here, the Board did not even verbally approve of
Duggan hiring his brother in March 1993.

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