Public Enforcement Letter 97-2

Julie A. DiPasquale

c/o Thomas R. Kiley, Esq.
Cosgrove, Eisenberg & Kiley, P.C.
One International Place, Suite 1820
Boston, MA 02110-2600

December 18, 1996

Dear Ms. DiPasquale:

As you know, the State Ethics Commission ("the Commission")
has conducted a preliminary inquiry into allegations that you
violated the state conflict of interest law, General Laws c. 268A,
by participating as a member of the Somerville School Committee in
matters in which your sister and daughter had financial interests.
Based on the staff's inquiry (discussed below), the Commission
voted on April 11, 1995, that there is reasonable cause to believe
that you violated the state conflict of interest law, G.L. c. 268A,
s.s.19 and 23(b)(3) and authorized adjudicatory proceedings. On
June 6, 1995, the Commission staff issued an Order to Show Cause.
You have answered that Order.

For the reasons discussed below, the Commission does not
believe that further proceedings are warranted.

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Instead, the Commission has determined that the public interest
would be better served by explaining its application of the law to
the facts, with the expectation that this advice will ensure your
understanding of and future compliance with the conflict of
interest law. 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 further formal action against you in this matter and
have stipulated to the dismissal of the formal charges initiating
the prior proceedings.


I. Facts


1. You were a member of the Somerville School Committee ("the
School Committee") from 1984 through November 1995.

2. Julie Marie DiPasquale ("Julie") is your daughter and
Eileen Bakey ("Bakey") is your sister.


I.


3. In October 1991, Eileen Bakey was a clerical employee of
the Somerville School Department. She worked as a senior clerk-
typist at Somerville High School.

4. In October 1991 a vacancy for a principal clerk-
stenographer arose in the office of Assistant Superintendent
William Fasciano, Somerville Public Schools. Shortly thereafter,
the School Department posted a notice of clerical vacancy for the
position, indicating that the position was to be filled
provisionally pending a civil service examination.

5. Bakey applied for the principal clerk-stenographer
vacancy. Several other qualified clerical employees also applied
for the position.

6. A 1988 civil service list ("the 1988 list") had been
established by the Department of Personnel Administration on
October 28, 1988, pursuant to a June 11, 1988 promotional
examination for principal clerk, Somerville public schools.

7. Seven clerical employees, ranked in order of their exam
scores, were certified in the 1988 list as eligible for promotion
to principal clerk. On December 5, 1988, the list was used to
promote the third and sixth persons to principal clerk positions.

8. The first person on the 1988 list had retired in September
1991. Bakey was listed second. Thus, Bakey was effectively number
one of the four persons remaining on the list.

9. Karen Cooke, a junior clerk-typist, was not on the 1988
list.

10. On November 18, 1991, the School Committee approved the
provisional promotion of Cooke to the principal clerk-stenographer
vacancy. The School Committee's vote was not implemented and Cooke
was never assigned to the position.

11. On or about January 10, 1992, five School Department
secretaries, including Bakey, filed appeals with the Civil
Service Commission ("Civil Service"), challenging the non-use of
the 1988 list to fill the principal clerk-stenographer vacancy and
requesting an investigation into the employment practices of the
School Department. Three of those five secretaries were from the
ward that you represented.

12. On or about January 10, 1992, you learned that Bakey and
your constituents had applied for the principal clerk-stenographer
position and had filed complaints with Civil Service. At about the
same time, you learned of the existence of the 1988 list on which
Bakey's name appeared.

13. On January 22, 1992, the Rules Subcommittee of the School
Committee voted on a motion/recommendation that the School
Committee join with the five secretaries in their request that
Civil Service conduct an immediate investigation into the School
Department's hiring practice. You voted in favor of the motion.
The motion was approved.

14. On January 27, 1992, the School Committee reviewed the
Rules Subcommittee's recommendation and voted on a motion to
request in writing a compliance review ("audit") by Civil Service
into the hiring practices of the School Department. You voted in
favor of the motion. The motion was approved.

15. In Spring 1992, a second principal clerk-stenographer
position, in the Department of Curriculum and Instruction, became
vacant.

16. On May 4, 1992, the School Committee voted on a motion to
request the use of the 1988 list and to offer the two principal
clerk-stenographer vacancies to Agnes McAnneny and Eileen Bakey.

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17. You split your vote on the May 4, 1992 motion as follows:
you voted in favor of the request to use the 1988 list, and voted
"present" on offering the two vacancies to McAnneny and Bakey. The
motion was approved.

18. Sometime prior to May 28, 1992, two additional principal
clerk vacancies arose in the Lunch and Special Education
Departments.

19. On May 28, 1992, the School Committee voted on a motion
to have Assistant Superintendent Fasciano requisition Civil
Service, by certified mail, to use the 1988 list to appoint four
people from this list. You voted in favor of this motion. The
motion was approved.

20. When you participated in each of the foregoing votes
beginning on January 22, 1992, you knew that your sister was the
highest ranked person on the 1988 list who was interested in
obtaining a position as a principal clerk-stenographer in the
School Department. The School Department was not obligated to
appoint the highest ranked person on the list and had some history
of by-passing such persons.

21. You yourself were a School Department clerical employee
prior to your service on the School Committee. It has been your
consistent position throughout your tenure on the School Committee
that civil service law should be followed in hiring and promoting
clerical employees.

22. In August 1992, Bakey accepted an appointment to the
principal clerk-stenographer position in the office of Assistant
Superintendent Fasciano.

23. The position paid about $2,000 more than Bakey's position
as senior clerk.


II.


24. Pursuant to the Somerville "School Committee Policy on
Method of Hiring Teachers" applicable for the 1993-94 school year,
teachers were selected from an eligibility list established
annually.

25. The Teacher Eligibility List ranked candidates by score,
with the highest possible score being 1,000 as follows: 500
possible points from the National Teacher Examination ("NTE"); 300
possible points from an interview with a three-member committee;
and 200 possible points based on an applicant's training and
experience.

26. Pursuant to the 1993-94 policy, a person's NTE score was
good only from the current year or one of the two previous years.

27. Your daughter Julie was listed on four Teacher
Eligibility Lists for the 1993-94 school year: K-3, 4-6, 7-8 and
Choice. Julie was ranked seventh on the K-3 and 4-6 lists, second
of two on the 7-8 list, and fourth on the Choice list.

28. On February 2, 1994, Julie requested that she be
considered for a teaching position in Somerville for the 1994-95
school year.

29. Prior to March 1, 1994, you knew that your daughter was
interested in becoming a Somerville school teacher, had been on the
1993-94 Teacher Eligibility Lists, had taken the NTE and was
working as a substitute teacher in Somerville.

30. On March 1, 1994, the Personnel Subcommittee of the
School Committee reviewed proposed changes to the School
Committee's policy on calculating scores for the Teacher
Eligibility List. You participated in that review and forwarded
the Subcommittee's motion to the School Committee to accept the
proposed changes.

31. The proposed changes were as follows:

(a) Set up a mathematical deviation formula to adjust
interview scores that are skewed.

(b) Candidate will be listed in numerical order with
the certification. This list will be inclusive of
all elementary teachers.

(c) Make sure that lists are established for all areas
of secondary.

(d) Re-state that NTE is good for five years. No NTE
exam needed for vocational teachers.

(e) Proposed eligibility lists will be inclusive in
most secondary areas especially in SPED and Foreign
language.

(f) Principals in Somerville will be asked to rate
substitute teachers annually to be

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added to their overall experience score. These
teachers must have substituted at least three (3)
quarters during the school year.

(g) Long-term subs shall be appointed from the list of
eligible teachers. If a permanent position should
arise, anyone holding a long-term position will be
considered as being on the list.


32. On March 7, 1994, the School Committee voted on a motion
to adopt the proposed changes to the policy on calculating scores
for the Teacher Eligibility List. You voted in favor of the
motion.

33. According to the 1994-95 Teacher Eligibility Lists, Julie
placed fifth on the Elementary (1-6) list.

34. On September 2, 1994, Principal Ellen O'Brien of the
Healey School recommended to Anthony Caliri, Human Resources
Manager, that Julie be offered the position of sixth grade teacher
for the 1994-95 school year.


II. Discussion


As a member of the Somerville School Committee you were a
municipal employee within the meaning of G.L. c. 268A, s.1(g). As
such, you are subject to the conflict of interest law, G.L. c.
268A, generally, and in particular, for the purposes of this
discussion, to s.s.19 and 23(b)(3) of the statute.

Section 19 of G.L. c. 268A prohibits a municipal employee from
participating[1] as a municipal employee in a particular matter[2]
in which to her knowledge she or an immediate family member has a
financial interest.[3]

The controversy concerning the use of the 1988 civil service
list to fill the principal clerk-stenographer vacancy in 1992 was
a particular matter. You knew that your sister had a financial
interest in this particular matter as an applicant for the vacancy.

Nevertheless, you participated as a member of the School Committee
in this particular matter on January 22, January 27, May 4 and May
28, 1992. Thus, there is reasonable cause to believe that you
violated s.19 on each of these occasions.

In addition, the Personnel Subcommittee's decision to propose
and the School Committee's decision to approve changes to the
teacher eligibility list were particular matters. You knew that
your daughter had a financial interest in these particular matters
as a teacher applicant.[4] Nevertheless, you participated as a
member of the School Committee in this particular matter on March
1 and 7, 1994. Thus, there is reasonable cause to believe that you
violated s.19 on each of these occasions.

This same conduct also suggests a violation of G.L. c. 268A,
s.23(b)(3)'s prohibition against a public official knowingly or
with reason to know, acting in a manner which would cause a
reasonable person, with knowledge of the relevant circumstances, to
conclude that any person can improperly influence or unduly enjoy
her favor in the performance of her official duties. Your
participation in matters affecting the financial interests of your
sister and daughter would cause a reasonable person, with knowledge
of the relevant circumstances, to conclude that you participated in
these matters to benefit members of your own family and that you
could be unduly influenced in the performance of your official
responsibilities as a member of the School Committee. Thus, there
is reasonable cause to believe that you violated s.23(b)(3).

You have asserted that your split May 4, 1992 vote on the
Bakey matter was an attempt to comply with the conflict of interest
law as articulated and that your conduct in both matters falls
within the general policy exemption to s.19 and, by application of
s.23(d), is also exempt from s.23(b)(3).[5] In Julie's case, you
point specifically to the Education Reform Act of 1993, which
removed school committees from hiring decisions and relegated them
to policy matters, and which you argue coincides precisely with the
general policy exemption.

The general policy exemption set forth in s.19(b)(3) states
that it shall not be a violation of s.19

if the particular matter involves a determination of
general policy and the interest of the municipal employee
or members of his immediate family is shared with a
substantial segment of the population of the
municipality.

Section 19(b)(3) allows you to act as a school committee
member on any determination of "general policy" which affects a
substantial segment of your community's population in the same way.
For

Page 856

example, you have a child in the public school system, and students
currently get free milk at lunch, but because of budgetary
concerns, the School Committee is considering charging a nominal
fee for the milk. This plan would affect your financial interest
because of your child, but it would also affect much of the town's
population. Thus, you could participate in deciding on the
proposal. Ethics Commission Brochure, The Conflict of Interest Law
and School Committee Members.

You have stated that you participated in these particular
matters because you believed them to involve matters of general
policy, exempt under s.19(b)(3). While you had a good faith belief
that you could participate in these matters, the Commission
disagrees with your interpretation of the law and takes this
opportunity to educate you and others as to its reasoning.

First, in the case of your 1992 participation, you assert that
you participated in the particular matter to promote use of proper
civil service procedure and not to benefit your sister. Second, in
the case of your 1994 participation, you assert that you
participated in the particular matter to effect amendments to the
teacher eligibility lists, not to benefit your daughter.

Assuming that you were participating in particular matters
involving determinations of general policy, the s.19(b)(3)
exemption would not apply unless your sister's and daughter's
interests were shared with a substantial segment of the population
of Somerville. Otherwise, a matter couched in terms of general
policy might nevertheless affect the financial interests of only a
few residents of the municipality. See Belin v. Secretary of the
Commonwealth, 362 Mass. 530, 535 (1972).

The Commission has determined that 10% is a substantial
segment of the population of the municipality for purposes of this
exemption. EC-COI-92-34; EC-COI-93-20. Somerville's population
was 72,303 in 1992 and 68,940 in 1994. In the case of your sister,
only a handful of school department clerical employees, certainly
less than 7,230, shared her interest. In the case of your
daughter, only a handful of teacher applicants, certainly less than
6,894, shared her interest. Thus, your sister's and daughter's
interests were not shared with a substantial segment of the
Somerville population. In re Khambaty, 1987 SEC 318 (school
committee member violated s.19 by voting on matters in which school
teacher wife had financial interest; s.19(b)(3) did not apply
because wife's interest not shared with substantial segment of
community).

For the foregoing reasons, your conduct is not exempt from
s.19 by application of the general policy exemption.


III. Disposition


The Commission is authorized to resolve violations of G.L. c.
268A with civil penalties of up to $2,000 for each violation. The
Commission chose to resolve this case with a public enforcement
letter, rather than pursuing its formal order which might have
resulted in a civil penalty because on a review of all the
pertinent evidence it appeared that you were attempting to comply
with the conflict of interest law by abstaining from matters
specifically directed to your immediate family members, and because
you believed in good faith that you could participate in particular
matters involving determinations of general policy. Your
cooperation with the Commission in fashioning this educational
letter was also a consideration.

Based upon its review of this matter, the Commission has
determined that your receipt of this public enforcement letter
should be sufficient to ensure your understanding of and future
compliance with the conflict of interest law.

This matter is now closed.

-------------------------

[1] "Participate," means to 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).

[2] "Particular matter," means 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] "Financial interest" means any economic interest of a
particular individual that is not shared with a substantial segment
of the population of the municipality. See Graham v. McGrail, 370
Mass. 133, 345 N.E. 2d 888 (1976). This definition has embraced
private interests, no matter how small, which are direct, immediate
or reasonably foreseeable. See EC-COI-84-98. The interest can be
affected in either a positive or negative way. See EC-COI-84-96.

Page 857

[4] Your daughter had a financial interest in these particular
matters because the proposed changes resulted in your daughter's
advancing a few places on the teacher eligibility list and her NTE
score remaining valid for an additional two years.

[5] Section 23(d) provides that any "activity specifically
exempted from any of the prohibitions in any other section of this
chapter shall also be exempt from the provisions of this section."

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End of Decision