March 25, 2011

DISPOSITION AGREEMENT

 

The State Ethics Commission ("Commission") and Mary Capman ("Capman") enter into this Disposition Agreement pursuant to Section 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, § 4(j)

On July 16, 2010, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Capman. On November 19, 2010, the Commission concluded its inquiry and found reasonable cause to believe that Capman violated G.L. c. 268A.

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

 

Findings of Fact

 

1. Capman was, a Gardner Golf Commission ("GGC") member from 2001 until her resignation in March 2010. She served as the GGC secretary, responsible for taking meeting minutes. As such, Capman was a municipal employee as that term is defined in G.L. c. 268A, § 1.

2. The GGC was responsible for overseeing the grounds and operation of the Gardner Municipal Golf Course ("Golf Course").

3. In the Fall of 2008, GGC members began discussing the possibility of installing a computer system at the Golf Course.

4. In October 2008, Capman informed the GGC that her step-son, Don Capman, Jr. ("Don"), owned J.D. Associates ("JDA"), a Leominster company that sold Point of Sale ("POS") software and hardware. Capman offered to contact JDA and arrange for JDA to make an informational presentation at a GGC meeting.

5. At the November 18, 2008 GGC meeting, Capman stated that she had a casual conversation with Don, who had provided her with an estimate of the costs in the vicinity of $5,000 for installation of a POS system at the Golf Course's pro shop. JDA was interested in making a presentation to the GCC. GCC members indicated an interest in hearing the presentation.

6. On December 16, 2008, Capman introduced Don's partner, John Deery ("Deery"), to the GGC, and Deery gave a presentation, with Capman present, about the POS equipment the pro shop would require.

7. Capman did not file a written disclosure with her appointing authority, the City Council, concerning her familial relationship with Don when she introduced Deery to the GGC.

8. In February 2009, the GGC's Chairman, Capman, and one other GGC member had an informal meeting with Deery at a GGC member's business office to discuss a proposed agreement between the GGC and JDA. Don was not present at the meeting. Capman did not speak, and there were no official votes taken. The Chairman finalized the terms of the agreement with Deery at the February meeting.

9. On February 26, 2009, Deery signed a contract ("Contract") on behalf of JDA for POS equipment and services to be provided to the GGC. On March 1, 2009, the GGC Chairman signed the Contract on behalf of the GGC. The Contract was for a total of $10,210 in hardware, software, and services to be provided by JDA. In lieu of monetary payment for JDA's goods and services, the Contract specified that JDA would receive the following at the Golf Course for three years (2009 through 2011): two annually transferable, fully paid family memberships; and two annually transferable, fully paid individual memberships.

10. In 2009, the Golf Course's non-resident, family golf memberships were each valued at $1,160 per year and its non-resident, individual golf memberships were each valued at $810. Golf memberships were also subject to either $150 or $200 surcharges per year. Therefore, the total value of these four memberships for the term of the Contract was approximately $12,000.

11. Although Capman did orally inform the other members of the GGC, she did not file a written disclosure with the City Council concerning her familial relationship with Don when the GGC entered into the Contract with JDA.

12. By April 2009, the POS equipment had been installed at the Golf Course and was fully functional. The 2009 family Golf Course memberships made available by the contract were given to, and used by, Don and his wife, as well as by Deery and his wife. The individual memberships were also given to, and used by, JDA employees for 2009.

13. In June 2010, the Gardner City Solicitor voided the Contract between GGC and JDA, and mandated that the POS equipment be removed from the Golf Course and returned to JDA. The JDA Golf Course memberships were also rescinded in June 2010. At that time, JDA had received approximately $4,000 worth of goods and services from the Contract.

 

Conclusions of Law

Section 19

 
14. Section 19(a), in relevant part, prohibits a municipal employee from
participating[1] as such an employee in a particular matter[2] in which to her knowledge, her immediate family[3] has a financial interest. [4]

15. Section 19(b)(1) provides that it is not a violation of §19 if the municipal employee first advises the official responsible for appointment to her 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 affect the integrity of the services which the municipality may expect from the employee.

16. The decision to have JDA address the GGC about a potential POSequipment and services contract was a particular matter.

17. Additionally, the decision to award the Contract was another particular matter.

18. Capman's step-son had a financial interest in those decisions because he would receive a financial benefit from the Contract.

19. By introducing and recommending JDA to the GGC, getting an estimated cost amount from JDA and communicating that amount to the GGC, Capman participated in her capacity as a GGC member in the decision to have JDA make a presentation to the GGC, and in the decision to award the Contract to JDA.

20. As her step-son, Don was a member of Capman's immediate family.

21. Capman did not disclose to her appointing authority Don's financial interest, and receive a written determination as required by § 19(b)(1).

22. Therefore, based on the foregoing, Capman violated § 19.

 

Resolution

 

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

(1) that Mary Capman pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $500 as a civil penalty for violating G.L. c. 268A, § 19; and

(2) that Mary Capman waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

 

STATE ETHICS COMMISSION

 

 

_ //signed//                     3/7/11  
Mary Capman                 Date 

_ //signed//                     3/25/11
Karen L. Nober               Date
Executive Director

 

 

I, Mary Capman, have personally read the above Disposition Agreement. I understand that it is a public document and that by signing it, I will have agreed to all of the terms and conditions therein, including payment of $500 to the Commonwealth of Massachusetts, with such payment to be delivered to the State Ethics Commission.

 

//signed//                     3/7/11
Mary Capman             Date



[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, § 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, § 1(k).

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

[4] "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 (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. EC-COI-84-96.