Docket No. 333

In the Matter of Peter J. Cassidy

October 19, 1988

Decision and Order



Appearing:

David A Wilson, Esq.
Counsel for Petitioner

Robert H. Quinn, Esq.
Counsel for Respondent

Commissioners:

Diver, Ch., Basile, Epps, Jarvis, Papalardo

I. Procedural History

The Petitioner initiated these adjudicatory proceedings on May
28,1987 by filing an Order to Show Cause pursuant to the
Commission's Rules of Practice and Prccedure, 930 CMR 1.01(5) (a).
The Order alleged that the Respondent, Peter j. Cassidy, Swampscott
Police Chief, had violated G.L. c. 268A, s.191 by his participation
in the following matters:


(a) the 1983 appointment of his son Michael as a permanent
reserve police officer;


(b) the 1984 appointment of his son Michael as a permanent
full-time police officer;


(c) the 1985 appointments of his son John, son Reid and
brother Francis as special police officers;


(d) the 1986 appointments of his son Timothy as a special
police officer;


(e) the 1986 appointment of sons Timothy and John as permanent
reserve police officers; and


(f) the assignment of his son Peter (1983) and son Michael
(1986) to night shifts.

Page 372

The Respondent filed an Answer admitting several of the factual
allegations, denying the conclusory allegations, and raising
several affirmative defenses. Following the pre-hearing conference
and document discovery period, the Petitioner and Respondent
stipulated to most of the relevant facts.

Pursuant to notice, adjudicatory hearings were conducted on
October 7,1987, November 9,1987, December 2,1987 and February
17,1988 before Commission member Joseph J. Basile,Jr., a duly
designated Commission presiding officer. The parties thereafter
submitted post-hearing briefs and reply briefs and presented oral
arguments before the Commission on August 25,1988. In rendering
this Decision and Order, each participating Commission member has
considered the testimony, evidence and arguments of the parties.

II. Findings of Fact

Based on the stipulations of the parties, the testimony of
witnesses and the evidence introduced at the adjudicatory hearings,
the Commission makes the following findings:

1. The Respondent has served as Chief of the Swampscott Police
Department (SPD) since 1980. He is a popular and well-regarded
figure in the community.

2. The Swampscott Board of Selectmen (Board) acts as the
appointing authority for the SPD, pursuant to G.L. c. 31. The Board
has final authority with respect to the interviewing and hiring of
SPD personnel. In practice, the Respondent recommends personnel
decisions which are formally considered and adopted by the Board.

3. The Board is comprised of members who serve on a part-time
basis. The Board has confidence in the Respondent's judgment and
invariably defers to his recommendations in the operation of the
SPD, including personnel appointments. The Board expects that the
Respondent will have been involved personally in any recommendation
which he makes to the Board.

4. For the purpose of this case, there are three types of SPD
appointments made by the Board upon the recomendation of the
Respondent:


(a) permanent full-time police officers who are selected
from civil service eligible lists, paid by the town, and who
are appointed to regular police shifts;


(b) permanent reserve police officers who are also selected
from civil service eligible lists and paid by the town to
supplement the permanent full-time police force and fill in
on regular shifts as needed; and


(c) special police officers appointed annually but not paid
by the town, who possess police powers; appointment as a
special police officer entitles an officer to work on police
details paid for by private parties using the detail.

Most permanent full-time police officers in Swampscott have started
as either permanent reserve officers or special police officers.


5. The Respondent has five sons: Peter J. Cassidy, II (Peter),
Michael R, Cassidy (Michael),John R. Cassidy (John) ,Timothy P.
Cassidy (Timothy) and Reid J. Cassidy (Reid). Peter, Michael, John
and Timothy are, respectively, either full-time or permanent
reserve SPD police officers. The Respondent's son Reid and brother
Francis J. Cassidy (Francis) are SPD special police officers.


(a) l989 Appointment of Michael as Permment Reserve Police
Officer

6. Sometime prior to April 21,1983, with the approval of the
Board, Respondent wrote to the state Department of Personnel
Administration (DPA) stating that there were seven permanent
reserve openings on the SPD, to be paid at the rate of $46.16 per
day, and requesting the issuance of a civil service list of
eligible candidates. At the time he requisitioned the list, the
Respondent knew that his son Michael had previously taken the
statewide civil service examination prerequisite to appointment as
a police officer and knew that Michael had expressed an interest
to serve in Swampscott. Michael's name appeared seventh, according
to examination score, on the civil service list, dated April
21,1983, which DPA issued in response to the Respondent's
requisition. Ten of the sixteen candidates listed on the civil
service list, including Michael, signed the list affirming that
they would accept appointment as SPD reserve officers. Six of those
signing were listed above Michael.

7. Upon receipt of a requisition for a civil service list, DPA
prepares a list of names adequate for the number of vacancies. The
list ranks candidates according to their score, residence and
veteran status. On the April 21,1983 civil service list, Michael
was the lowest ranked of seven Swampscott residents listed.

8. Prior to September 15,1983, on which day the Board considered
the appointment of reserve police officers, the Respondent
participated in an official SPD selection process whereby it was
determined that six of the ten candidates who had signed the civil
service list, including Michael, would be recommended for
appointment. As part of this selection process, the Respondent
reviewed the background information questionnaires that the reserve
candidates had filled out and filed with the SPD. He also discussed
with SPD Captain Toomey, who has supervised the background
investigations which the SPD conducted as to each candidate, the
results of the background investigations. In addition, the
Respondent formally interviewed at least two of the candidates,
Dennis E. Hamson and Michael McNelley, and asked them questions
about their background and interest in working for the SPD.[2] The
Respondent also met with two

Page 373

other candidates, Kevin Calnan and Stephen Picone regarding the
position.

9. Subsequent to these meetings, the Respondent personally
decided that, from the civil service list of candidates, of the ten
who signed the list, six, including Michael, would be
recommended for appointment, and four would not be. The
Respondent personally evaluated how the candidates
compared to each other in their qualifications and
decided the order in which the candidates would
be recommended for appointment by the Board. Because
he thought Dennis Hamson was the best qualified candidate,
the Respondent ranked him first, although he was twelfth
on the civil service list. The Respondent ranked his
son Michael fourth, ahead of John Donahue, who had
received a higher score on the civil service
examination and was listed on the civil service list ahead of
Michael, and whom the Respondent had ranked sixth. Having
personally decided this ranking, the Respondent further determined,
for seniority purposes, to recommend that the Board appoint the
candidates, in order of their rank, effective on successive days
and wrote a letter, dated September 15,1983, to the Board making
that recommendation. The order of appointment determined the order
in which the reserve officers would be listed on the civil service
list from which permanent full-time police officers would
ultimately be appointed. All SPD full-time appointments are made
from the list of permanent reserve SPD officers.

10. During the relevant period, DPA regulations required an
appointing authority making appointments from the civil service
list to make its first appointment from among the top three people
on the list willing to accept, the second appointment from among
the top five, etc. As far as DPA was concerned, however, the
appointing authority was free to appoint the candidates in any
order of seniority it chose and did not need to make the highest
civil service listed candidate among those appointed the most
senior appointed.

11. At the Board meeting on September 15,1983, the Respondent
recommended the appointment of Michael and five others as reserve
officers, and the Board voted unanimously to appoint the
recommended candidates. The appointments were to take effect on six
separate days from September 16 through September 22, 1983, as
recommended by the Respondent in his September 15,1983 letter.
Michael's appointment was effective September 20,1983. The order
of the effective dates of the appointments did not follow the order
of the candidates's names on the civil service list, but rather the
order in which the Respondent had recommended the candidates.

12. Because the reserve appointments made by the Board at the
Respondent's recommendation had by passed several candidates who
were willing to be appointed, DPA regulations and G.L. c.31, s.27
required that the appointments would not be approved by DPA and
become effective until the DPA received a letter stating reasons
why the candidates appointed were the best candidates for the
position. On October 19,1983, the Respondent sent a letter to the
DPA informing it of the September 15,1983 appointments and stating
as to those appointed:


The above individuals were appointed as the result of a total
evaluation and observation by myself and other department
superior officers. Our feelings are in that comparison to
other nominees and their evaluations, the above appointments
are the best selections for the Swampscott Police Department
at this time.

On March 5,1984, the Respondent again wrote to DPA concerning
the September 15,1983 appointments, providing the effective date
of each appointment and stating as to each candidate that the
candidate"... upon interview, background investigation and overall
evaluation by myself and other superior officers of the Department
appears to be the best selection for the [SPD] at this time...

(b) 1984 Appointment of Michael as Permanent Full-Time Officer

13. Some time prior to December 6,1984, with the approval of the
Board, the Respondent sent a requisition to the DPA for a civil
service list of candidates eligible to fill three permanent full-
time SPD officer positions. In response, the DPA issued a civil
service list, dated December 6, 1984, of six names, including
Michael's, listed according to their SPD reserve police officer
appointment dates. Four of the six persons listed on the list,
including Michael, signed the list affirming their willingness to
accept a permanent full-time SPD appointment, Two of the candidates
so signing were listed ahead of Michael.

14. Prior to December 13,1984, on which day the Board considered
the appointment of permanent fulltime SPD police officers, the
Respondent participated in an official SPD selection process in
which it was determined that Michael and one other candidate would
be recommended by the Respondent for appointment. The Respondent
participated in the review of interviews, background screenings and
physical and psychological evaluations of the candidates, and
formally interviewed at least one of the four candidates, John
Dube, concerning, among other things, his interest in becoming a
police officer and what benefit he could provide the community. As
a result of these activities, the Respondent made the determination
that, of the four candidates, Michael and John Dube were fit to be
recommended for appointment as full-time police officers.

15. At the Board meeting on December 13,1984, the Respondent
recommended that Michael and John Dube be appointed as permanent
full-time police offi-


Page 374

cers, and the Board unanimously voted to appoint the recommended
candidates. Prior to voting, the Board asked if all applicants had
been tested medically, physically and psychologically, and the
Respondent stated that they had been. The Respondent also confirmed
that, on his recommendation, Michael and Dube were the best suited
of the candidates for the positions.

16. In appointing Michael and Dube, the Board bypassed Dennis
Hamson, who was listed ahead of them on the civil service list and
who had signed We list signifying his willingness to be appointed
as a full-time police officer. On December 19,1984, the Respondent
wrote a letter to DPA stating respectively as to Michael and Dube
that "... upon interview, background and overall evaluation by
myself and other superior officers of the Department [he] appears
to be the best selection for the [SPD] at this time."

(c) 1985 Appointment of John, Reid and Francis
as Special Police Officers

17. On or before June 11,1985, the Respondent interviewed and
updated a list of SPD special police officers, Included on the list
were the names of the Respondent's sons, John and Reid, and his
brother, Francis. At a June 11,1985 meeting of the Board, the
Respondent submitted the aforementioned list of names to the Board
for appointment. The Board unanimously voted, without discussion,
to appoint the listed special police officers as submitted. As
special police officers, Francis John and Reid were each eligible
to work paid private details.[3]

(d) 1986 Appointment of Timothy as Special Police Officer

18. At a Board meeting on January 23,1986, the Respondent
submitted a list of the names of nine persons, including his
youngest son, Timothy, for appointment as special police officers.
The Respondent told the Board, in asking for the appointments, that
he was trying to build up the force and that the appointments were
needed, Upon questioning by the Board as to why special police
officers were needed, the Respondent stated that the new appointees
would be unpaid volunteers and would be used for traffic, parades
and similar duties. The Board voted unanimously to appoint those
named on the list submitted by the Respondent.[4]

19. At no time prior to his participation in the procedures
leading to the appointment of his son Michael, first as permanent
reserve, then permanent time police officer, or the appointments
of his sons, John, Reid and Timothy and his brother Francis as
special police officers, did the Respondent make a written
disclosure to the Board that he would be participating in matters
in which members of his immediate family had financial interests
or seek or receive in advance of his participation a written
determination by the Board that his immediate family members'
financial interests in their respective appointments were not so
substantial as to affect the integrity of the services the Town
might expect from him in his participation in the appointment
process.

(e) 1986 Appointment of John and Timothy as Permanent Reserve
Police Officers

20. Prior to June 24,1986, on the vote of the Board, the
Respondent sent a requisition to the DPA for a civil service list
of candidates from which ten SPD permanent reserve police officer
positions would be filled. In reponse, the DPA issued a list, dated
June 27,1986, of thirty-five names, arranged by civil service
examination score, on which John was listed fifth and Timothy
twelfth. The Respondent was aware at the time that he submitted the
requisition that John and Timothy had previously taken the
statewide civil service examination prerequisite to appointment for
police officer and knew that they had expressed an interest in
serving Swampscott.

21. Between June 27, and September 18,1986, the SPD conducted
background screenings and so-called general psychological
interviews of the reserve officer candidates. This activity took
place under a program prepared by the Respondent, adopted by the
Board and approved by DPA The Respondent took part in directing the
background screenings and determined, or took part in the
determination of, what would be inquired into in those screenings.
The Respondent also participated in the selection of the persons
making up the Oral Boards Panel, which conducted the general
psychological interviews of the candidates, and in the choice of
the psychclogical consultant hired to assist the SPD in the police
officer selection process.

22. The SPD Oral Boards Process interviewed twenty-seven of the
thirty-five persons on the civil service list, including John and
Timothy. The Respondent's highest ranking subordinate, Senior
Captain Toomey, was one of three members of the Oral Boards Panel.
The Panel recommended both John and Timothy, along with seven
others, without reservations. The Panel also recommended nine
candidates with reservations and judged nine other candidates to
be unacceptable.

23. Sometime on or before September 18,1986, the Respondent
compiled a list of candidates which he would recommend that the
Board appoint as permanent reserve officers. The list included the
names of the Respondent's sons, Timothy and John, did not include
the names of three candidates recommended without reservation by
the Oral Boards Panel, and included the names of four candidates
whom the Oral Boards Panel recommended with reservations.

24. At a meeting of the Board on September 18, 1986, the
Respondent recommended ten candidates

Page 375

from the civil service list requisitioned, including John and
Timothy, for appointment as permanent reserve officers. The Board
approved the appointment of the ten recommended candidates, noting
the fact, after both John's and Timothy's names, that they were the
Respondent's sons,

25. At no time prior to his participation in the procedures
leading to the Board's appointment of his sons John and Timothy as
permanent reserve officers did the Respondent make a written
disclosure to the Board that he would be participating in matters
in which his sons had financial interests, or receive in advance
of his participation a written determination by the Board that his
sons' financial interests in their respective appointments were not
so substantial as to affect the integrity of the services
Swampscott might expect from him in his participation in the
appointment process.

26. At the meeting on September 18, 1986, the Board voted to
approve a letter dated September 18, 1986 and addressed to the
Respondent, which acknowledged that the Respondent had advised the
Board that his sons, John and Timothy, were "on the list for
appointment to the position of Reserve Police Officer" and to
inform the Respondent of the Board's determination that the
Respondent's "financial interest in either or both [sons] being
selected [by the Board]" was "not so substantial that it would be
deemed [by the Board] likely to affect [the Respondent's] integrity
in whatever involvement or participation, if any, that [the
Respondent] might have in the process of [the Board] selecting
candidates from [the] list." The letter was signed by the Chairman
of the Board.

(f) Night Shift Assignments of Peter and Michael

27. SPD police officers assigned to night shifts are paid
a shift differential amounting to a couple of hundred dollars per
year. The Respondent, as SPD Chief, supervises shift assignments.
That supervision includes deciding who works each shift and does
not require approval of the Board. In addition, as Chief the
Respondent signs the duty roster, prepared by a subordinate, on
which shift assignments are set forth and which is ineffective
without his signature.

28. Since August, 1983, the Respondent has assigned or renewed
the assignment to the night shift of his son Peter, who has been
a permanent full-time SPD officer since February, 1983. Peter
receives a shift differential for working the night shift. In
addition to receiving the night shift differential, working the
night shift accommodates Peter's commercial fishing schedule.

29. Sometime during 1986, the Respondent assigned his son
Michael to the night shift. Michael received a shift differential
for working the night shift.

30. At no time prior to making the decisions to assign his sons
Peter and Michael to the night shift did the Respondent make a
written disclosure to the Board that he would be participating in
matters in which his sons had financial interests, or seek or
receive in advance of his participation, a written determination
by the Board that his sons' financial interests in their respective
assignments to night duty were not so substantial as to affect the
integrity of the services Swampscott might expect from the
Respondent in his making shift assignments.

III. Decision

For the reasons which follow, we conclude that the Respondent
violated G.L. c. 268A, s.19 as alleged in substantial part in the
Order to Show Cause, and that no exemptions apply, either as a
matter of law or affirmative defense.

Under G.L. c. 268A, s.19, with certain exceptions, a municipal
employee is prohibited from participating[5] in any particular
matter[6] in which, to his knowledge, a member of his immediate
family[7] has a financial interest. The financial interests covered
by s.19 are those which are reasonably foreseeable, EC-COI-84-96,
and include the interest which immediate members have in their
appointments to paid positions. Sciuto v. City of Lawrence, 389
Mass. 939(1983) (city alderman found to have violated G.L. c. 268A,
s.19 by the appointment of his brother to positions in the police
department); {Commission Advisory No. 11} (Nepotism) (1986).

At the outset, it is undisputed that the Respondent has been,
at all relevant times, a municipal employee within the meaning of
G.L. c. 268A, s.1(g). It is also undisputed that the Board, as the
appointing authority, makes the final decision regarding the
appointment of permanent reserve police officers, permanent full-
time police officers and special police officers. The conclusion
that the Board makes the final appointment decision does not rule
out, however, findings of prior participation in the same
appointment by other municipal employees. The definition
of participate in G.L. c. 268A, s.1(j) includes recommendation and
anticipates that intermediate participants in a chain of command
may be found to have participated under s.1(j) in a decision
finally approved by higher level officials. While peripheral or
preliminary involvement may lack, in certain circumstances, the
degree of substantiality required by s.1 (j). See, EC-COI-87-32,
81-113, the making of recommendations to the final decision maker
has customarily been regarded as substantial participation. See,
In the Matter of James Craven, 1980 SEC 17, aff'd sub nom
Craven v. State Ethics Commission, 390 Mass. 191(1983); EC-COI-
85-26; 83-174; 81-108.

1. Substantive Violations

(a) 1983 Appointinent of Michael as a Permanent Reserve
Officer.

Page 376

We conclude that the Respondent participated in the
appointment of his son Michael as a permanent reserve police
officer in 1983, in violation of G.L. c. 268A, s.19. The
appointment of Michael was a particular matter in which a member
of the Respondent's immediate family had a financial interest of
which the Respondent was aware. The Respondent personally and
substantially participated in the appointment through his
activities as Police Chief leading up to the Board's acceptance
of his recommendation.

Specifically, the Respondent interviewed candidates for the
appointment, weighed the merits of the candidates, made formal
recommendations to the Board and personally presented his
recommendations before the Board.[8] Given the deference which
the Board customarily accorded the Respondent in the operation of
SPD, any personnel recommendation made by the Respondent would be
ratified and formally approved by the Board. The Respondent's
role in the appointment process was substantial because the Board
would not have appointed Michael as a permanent reserve officer
unless the Respondent had recommended the appointment In light of
the influential impact of the Respondent's recommendation,
together with the Respondent's prior interview and evaluative
activities leading up to the recommendation, we do not regard the
Respondent's activities in connection with Michael's appointment
as peripheral or preliminary.

(b) The 1984 Appointment of Michael as a Permanent Full-time
Police Officer.

The legal analysis supporting a finding of a s. 19 violation
in the 1984 appointment of Michael as a permanent full-time
police officer is nearly identical to the analysis of the 1983
appointment. The record documents the personal and substantial
involvement of the Respondent in personally interviewing and
ranking candidates and making recommendations and presentations
to the Board. Although for s.19 purposes it may not be relevant
that the Respondent passed over a candidate ranked higher than
his son, this fact will be relevant in considering an appropriate
penalty.


(c) The 1985 Appointment of John, Reid and
Francis as Special Police Officers.

It is undisputed that the Respondent recommended and
personally presented to the Board the appointment of sons John
and Reid and brother Francis as special police officers. Although
the appointment and reappointment of special police officers
appears to be more pro forma than the selection of permanent
reserve or regular police officers, the record reflects the
discretion which the Respondent exercised in determining whether
to include names in his periodic recommendations to the Board.
The discretion, coupled with his recommendation activities,
support a finding that his participation was personal and
substantial.

We have closely examined whether the Respondent's family
members had a financial interest in their appointments. The
special police officers positions are unpaid, and the Respondent
informed the Board that he was attempting to build up the special
force and that the specials would be unpaid volunteers used for
traffic and parades. These facts merely demonstrated, however,
that the Respondent was aware that his family members would not
receive Town funds for their services.

The practical reality of appointment as a special police
officer, a reality known to both the Respondent and his family
members, was that appointment as a special police officer
qualified his family members to work on paid, private details. In
effect, the appointment was a license to earn money on private
details, and, therefore, his family members had a reasonably
foreseeable financial interest in their appointments. The
foreseeability of this financial interest is supported by
evidence documenting the additional private detail income earned
by John in 1986.

On the other hand, his brother Francis did not have had a
reasonably foreseeable financial interest in his appointment. He
testified that he had served as a special police officer for
thirty years, that he regarded the appointment as honorary, and
that he had never earned any money as a special police officer.
Assuming that the Respondent was aware of his brother's limited
use of the position as an honorary title, the presumption that
Francis had a foreseeable financial interest in his annual
appointment in 1985 was rebutted. Accordingly, the Respondent's
appointment of his brother in 1985 did not violate s.19. See, In
the Matter of Dana Chase, 1983 SEC 153, 156; EC-COI-87-1. The
record is less clear with respect to the foreseeability of Reid's
financial interest in his appointment. Because the special police
officer appointment entitled Reid to earn compensation from
private details, we presume that the potential for such earnings
is a sufficient financial interest for s. 19 purposes, absent
evidence to the contrary. While we are persuaded by the evidence
that Francis had, in effect, renounced any financial interest in
his appointment, there is no such evidence supporting a similar
finding with respect to Reid. Accordingly, we conclude that the
Respondent's participation in the appointment of John and Reid
violated s. 19, whereas his participation in the appointment of
Francis was not a matter in which Francis had a foreseeable
financial interest.

(d) The 1986 Appointment of Timothy as a Special Police
Officer.

The Respondent's participation in the 1985 special police
officer appointment process for Timothy is similar

Page 377

to the activities which constituted personal and substantial
participation in his other family members' appointments as
special police officers in 1985. Specifically, we conclude that
the Respondent participated in Timothy's appointment by his
submitting and recommending Timothy's name to the Board and by
his discussing the reasons for the appointment with the Board.
Timothy's financial interest in the appointment is supported by
Timothy's earning substantial private detail income during that
year.

(e) The 1986 Appointment of John and Timothy: Permanent
Reserve Officers.

The evidence supports our conclusion that the Respondent
personally and substantially participated in the appointment of
sons John and Timothy as permanent reserve police officers. Prior
to making any presentation to the Board, the Respondent initiated
the background screening and psychological evaluation process for
the candidates, evaluated the merits of each candidate and
prepared a written recommendation to the Board which included the
appointment of his two sons. Therefore, the Respondent's conduct
prior to his personal presentation to the Board on September 18,
1986 constituted personal and substantial participation in their
appointment.

By September, 1986, the Board was made aware that it could
permit the Respondent to participate in matters affecting his
family members' financial interest by making a written
determination tracking the exemption language of s.19(b) (1).
Accordingly, the Board approved a written exemption for the
Respondent with respect to his presentation at the September 16,
1986 meeting. While the language of the exemption was not
entirely consistent with the exemption language of s.19(b) (1) we
find that the determination was sufficient to permit the
Respondent to participate thereafter in the recommendation of his
sons for appointment. We do not believe, however, that the
determination was sufficient to insulate the Respondent from
violations which had previously occurred with respect to his
sons' appointments because such an exemption can only be granted
in advance of participation and must be based on a disclosure of
all relevant facts. While the Board was apparently attempting to
assist the Respondent in avoiding violating s. 19, there is no
evidence that it was aware of the Respondent's specific conduct
which led up to his appearance in support of the recommendations.

(f) Night Shift Assignments of Peter and Michael.

The Respondent's son Peter was appointed as a permanent full-
time police officer in February, 1983. In August, 1983, the
Respondent assigned Peter to the night shift, thereby providing
Peter with an additional night shift salary differential as well
as a schedule accommodation for Peter's commercial lobster
business.[9] The Respondent also assigned his son Michael, a
permanent full-time police officer, to a night shift in 1986,
thereby entitling Michael to a night shift salary differential.
The shift assignment authority rests with the Respondent and does
not require formal approval by the Board. In making the shift
assignments, the Respondent's actions constituted personal and
substantial participation within the meaning of s.10). See,
{Commission Advisory No. 11} (Nepotism) (1986).

The Respondent's night shift assignments, therefore,
constituted participation in matters in which his family members
had a financial interest The violations, however, are largely the
consequence of the fact that the Respondent was supervising his
sons and would inevitably participate in matters which would have
a financial impact on them.

2. Exemptions

Under s. 19(b) (1) had the Respondent notified the Board of
the several matters before him in which his family members had
financial interests, he could have received written determination
permitting his participation and thereby providing him with a
complete defense to his violations. The exemption would have
applied not only to his personal presentations before the Board
but also his participation in the process leading up to his
recommendations. With the exception of his recommendations
regarding John and Timothy to the Board, in September, 1986, the
Respondent did not follow the statutory procedure. By not
disclosing the relevant facts to the Board and by not receiving
from the Board advance written permission to participate, the
Respondent failed to qualify for any exemption under s. 19(b)
(1). See, In the Matter of William G. McLean, 1982 SEC 75,
78.

To be sure, the Board was aware of the fact that the
Respondent was recommending the appointment of his family
members, and the Respondent did not conceal the relationships in
his presentations. Moreover, given the trust and deference
which the Board accorded the Respondent as Chief, it is likely that, if
called upon, the Board would have granted the Respondent written
permission to participate in all matters relating to the
appointment of his family members. Nonetheless, the Respondent's
participation was not exempted under the required conditions of
s. 19(b) (1). The nature of these omissions is a relevant
consideration, however, in the assessment of appropriate
penalties.

3. Other Defenses

Page 378

In his Answer, the Respondent asserted that the allegations in
the Order to Show Cause were time-barred by a two-year statute of
limitations. In effect, the Respondent has challenged the
propriety of the Commission's three-year statute of limitations,
established by regulation in 1984. See, 930 CMR 1.02 (10). During
the pendency of these hearings, we fully addressed an identical
challenge in the Matter of Robert Sullivan, 1987 SEC 312, 313
(October 30, 1987). In light of our recent affirmation of the
propriety of the three-year limitations period in that decision,
we will not restate those reasons here. We have reviewed the
Respondent's contentions supporting a shorter limitations period
but remain persuaded by the validity of the three-year statute of
limitations regulation.

The Respondent's brief also challenges the Commission's
proceedings on several constitutional grounds. Because we assume
the constitutionality of the Commission's statute and procedure,
we do not customarily address the constitutional challenges at
the administrative level. We would add, however, that in our
view, none of the Respondent's challenges appears to have any
merit, either with respect to the statute on its face or with
respect to how the statute is applied to the Respondent To the
extent that most of the challenges are grounded on the assertion
that Commission proceedings are criminal, as opposed to civil in
nature, the Supreme Judicial curt has previously resolved this
point in the Commission's favor. See, Craven v. State Ethics
Commission, 390 Mass. 191 (1983); Quinn v. State Ethics
Commission, 401 Mass. 210 (1987) Opinion of the Justices, 375
Mass. 795 (1978).

IV. Sanctions

Although G.L. c. 268B, s. 4 authorizes our assessment of civil
penalties of up to $2,000.00 for each violation of G.L. c. 268A,
we are not inclined to assess the maximum penalty for each of the
Respondent's nine distinct violations of G.L. c. 268A, s. 19. In
some ways, the Respondent makes a strong case for mitigation of
fines. The Respondent made no effort to conceal the fact that he
was recommending his family members. Moreover, Town officials who
could have taken preventative action were aware of the
Respondent's situation and chose not to raise any objection. On
the other hand, all of his s. 19 violations occurred after the
1983 Sciuto decision, and his ignorance of the prohibition of s.
19 is not a defense.[10] His violations were widespread and
reasonably raised questions in the SPD about presumed favoritism
towards his family members, particularly in the bypassing of
qualified outsiders. While there is no evidence that the
Respondent's family members were unqualified for the positions to
which they were appointed, compliance with the s. 19 exemption
procedure could have made the Board more aware of the
Respondent's conflicting loyalties in the matters in which he was
participating. Compliance could have also enabled the Board to
determine whether additional safeguards were necessary to
preserve the integrity of the appointment process.

We have weighed these aggravating and mitigating factors and
conclude that a civil penalty of $200.00 is appropriate for each
appointment process in which the Respondent's participation
violated G.L. c. 268A, s.19. Specifically, we assess a $200.00
civil penalty for his participation in each of the following
matters:


(a) the 1983 appointment of his son Michael as a permanent
reserve police officer;


(b) the 1984 appointment of his son Michael as a permanent
full-time police officer;


(c) the 1985 appointments of his son John and son Reid as
special police officers;

(d) the 1986 appointment of his son Timothy as a special
police officer; and


(e) the 1986 appointments of his son Timothy and son John
as permanent reserve police officers.

We are not inclined to impose additional penalties on the
Respondent for his night shift assignments of Peter and Michael
in 1986.

V. Order

Based on the foregoing, we conclude that the Respondent
violated G.L. c. 268A through his participation in the
appointment and shift assignment of his sons, and we order the
Respondent to pay to the Commission a civil penalty of $1,000.00.

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

[1] G.L c. 268A s. 19 provides as follows:

(a) Except as permitted by paragraph (b), a municipal employee
who participates as such an employee in a particular matter in
which to his knowledge he, his immediate family or partner. a
business organization in which he is serving as officer,
director, trustee, partner or employee, or any person or
organization with whom he is negotiating or has any arrangement
concerning prospective employment has a financial interest, shall
he punished by a fine of not more than three thousand dollars or
by imprisonment for not more than two years, or both.

(b) It shall not be a violation of this section (1) if the
municipal employee first advises the official responsible for
appointment to his position of the nature and circumstances of
the particular matter and take's 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, or

(2) if, in the case of an elected municipal official making
demand bank deposits of municipal funds, said official first
files, with the clerk of the city or town, a statement making
full disclosure of such financial interest, or (3) 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.

[2] Although the record contains some discrepancy regarding the
precise number of candidates personally interviewed by the
Respondent, we find that the Respondent did participate in the
interview process which led to the decisions as to whom to
recommend to the Board.

[3] Francis had served as a special police officer for thirty
years, regarded the position as honorary. and had never earned
money from the private details as a special police officer.

[4] Between August 29 and November 1, 1986, John paid at least
$1,771.21 for his SPD special police officer duties. Between May
23 and No-

Page 379

vember 2, 1986, Timothy was paid at least $4,990.54 for his
services as a SPD special police officer. These monies were
earned by John and Timothy by working paid private details.

[5] "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).

[6] "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).

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

[8] The record contains conflicting testimony regarding
whether
the Respondent personally attended a psychological evaluation of
Michael. The Respondent initially stipulated that he had attended
such an evaluation but later recanted the testimony. The
Petitioner has not pressed this point, and, in any event, there
is ample additional evidence to support a finding of
participation.

[9] Peter testified that he had requested a later shift to
accommodate his lobster business but that his father had assigned
him to the night shift for the needs of the department.

[10] Following Sciuto, it was incumbent on the Respondent to
initiate an advisory opinion request with either the Town Counsel
or the Commission seeking prospective guidance over the propriety
of his recommending the appointment of his immediate family
members. His failure to initiate this process cannot insulate him
from liability for violations of G.L c. 268A.