Docket No. 384
In the Matter of Deirdre A. Ling

 

April 17, 1990

DISPOSITION AGREEMENT

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Deirdre A. Ling (Dr. Ling) pursuant to Section 5(D) of the Commission’s Enforcement Procedures.  This Agreement constitutes a consented to final Commission order enforceable in the Superior Court pursuant to G.L. c. 268A, §4(j).

On January 24, 1990, the Commission initiated, pursuant to G.L. c. 268A, §4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Dr. Ling.  The Commission has concluded that inquiry and, on February 28, 1990, found reasonable cause to believe that Dr. Ling violated G.L. c. 268A, §6.

The Commission and Dr. Ling now agree to the following findings of fact and conclusions of law:

1.  At all relevant times, Dr. Ling was vice­chancellor for university relations and development at the University of Massachusetts at Amherst (UMass­A).  As such, she was a “state employee” as that term is defined in G.L. c. 268A, §1(q).

2.  As vice-chancellor for university relations and development, Dr. Ling was responsible for a number of areas, including supervising the following offices: State Relations, Community Relations, Development, Alumni Relations, Public Information, and Publications.

3.  Dr. Ling has also done a certain amount of private consulting work in the field of enrollment management.[1]  Thus, she has worked for Enrollment Management Consultants, Inc. (EMC), which sometimes does business through Advanced Marketing Technologies, Inc. (AMTech), which together are hereinafter referred to as EMC/AMTech.  The president of EMC/AMTech, at all times relevant to this matter, was Dr. John Maguire.[2]  Dr. Ling’s work for EMC/AMTech, as detailed more fully below, involved her consulting at public institutions of higher education outside of the Commonwealth of Massachusetts.  She was paid for that work by EMC/AMTech on an hourly basis.

4.  Between April 22, 1985 and April 23, 1985, Dr. Ling acted as an EMC/AMTech consultant at S.U.N.Y. Buffalo.  EMC/AMTech paid her $1,641 for this work.

5.  During the summer of 1985, Dr. Maguire sought commitments from a number of educators to teach at a two-week workshop he planned to conduct the following summer regarding enrollment management issues.  This was to be called the Nantucket Institute for Enrollment Management (Nantucket Institute).   It would function under the auspices of EMC/AMTech.  Thus, during the summer of 1985, Dr. Maguire informally sought and obtained Dr. Ling’s commitment to serve on the faculty of the Nantucket Institute (for 1986).  Both Dr. Maguire and Dr. Ling understood that this service would be on a compensated basis.

6.  Between September 17, 1985 and September 20, 1985, Dr. Ling acted as a consultant for EMC/AMTech at the University of Cincinnati.  EMC/Amtech paid her $2,656.50 for her services.

7.  By letter dated January 13, 1986, Dr. Maguire formally invited Dr. Ling to serve as a faculty member on the Nantucket Institute faculty for a 10 day workshop to be held in June, 1986.

8.  In January, 1986, Dr. Maguire invited Dr. Ling and Dr. Ling accepted his offer to consult for EMC/AMTech at the Delaware County Community College in approximately March or April, 1986.

9.  At its January 31, 1986 meeting, the UMass­A chancellor’s Executive Committee voted to have UMass-A conduct an attitude and image survey.[3]

10.  In early February, 1986, Dr. Ling directed her staff to solicit proposals from various outside consultants for such a survey.  Three proposals were received.  One company offered to do the work for a price between $37,145 and $98,500 depending on the size of the survey.  A second company’s bid for the same scope was between $80,000 and $250,000.  AMTech’s bid was $35,000, although it is not clear from the bid what the exact scope of the survey would be.

11. On February 24, 1986, Dr. Ling met with UMass-A Chancellor Joseph Duffey regarding a number of items, including the opinion and attitude and image survey.  She provided Chancellor Duffey with the bids she had received for that work.  She rated EMC/AMTech’s proposal number one, because of price, EMC/AMTech’s knowledge of Massachusetts (the other two companies were out-of-state), and UMass-A’s favorable experience with Dr. Maguire.  At the same meeting, she raised with Chancellor Duffey, who is her appointing authority, her concern that her involvement in this contract award might create an appearance of conflict because of her prior and future private business arrangements with Dr. Maguire.   She disclosed that she had previously consulted for EMC/AMTech on a paid private basis, and that she would be serving as a paid faculty member at the Nantucket Institute that coming summer.

12.  According to Chancellor Duffey, in his view the “potential for conflict of interest was so small” that he decided to hire EMC/AMTech notwithstanding Dr. Ling’s relationship with Dr. Maguire.  However, Chancellor Duffey suggested that Dr. Ling distance herself from the contract somewhat by having one of her assistants handle the day-to-day supervision of the contract, while she would retain the overall ultimate responsibility for the contract.

13.  On February 28, 1986, Dr. Ling informed Dr. Maguire that EMC/AMTech had been awarded the contract.  EMC/AMTech began working on the contract shortly thereafter.  The original contract, dated March 3, 1986, was for $24,000.  It was contemplated, however, that the full project would require an expenditure of approximately $35,000.  The reason the original contract was not for the full cost of the project was because there were not enough funds remaining in that fiscal year’s budget to cover the full cost.  Consequently, the remaining portion of the survey’s costs was covered by an $11,000 contract entered into between UMass-A and EMC/AMTech dated July 1, 1986.

14.  One of Dr.  Ling’s deputies did, in fact, supervise EMC/AMTech’s day-to-day performance under this contract.  Dr. Ling, however, was involved at certain points.  For example, sometime in March or April 1986, she reviewed and approved the original survey instrument and the determination as to which constituencies would be surveyed.

15.  Between April 29, 1986 and May 1, 1986, Dr. Ling consulted for EMC/AMTech at Delaware County Community College in Pennsylvania.  EMC/AMTech paid her $1,125 for this work.

16.  Between June 2, 1986 and June 6, 1986, and June 8, 1986 and June 13, 1986, Dr. Ling lectured at the Nantucket Institute.  She received $4,000 from EMC/AMTech for these services.

17.  In September, 1986, EMC/AMTech provided UMass-A with a written report on the survey results.

18.  Except as otherwise permitted in that section,[4] §6 of G.L. c. 268A prohibits a state employee from participating in a particular matter in which, to his knowledge, a person with whom he has an arrangement for employment has a financial interest.

19. The contractual agreement between UMass­ A and EMC/AMTech was a “particular matter” as defined in G.L. c. 268A, §1(k).

20.  Dr. Ling participated in the above contract when she determined which proposals to solicit and which proposals to submit to Chancellor Duffey, and when she evaluated EMC/AMTech’s proposal as the preferred choice.  She also participated in the contract after it was awarded, for example by reviewing and approving the survey instrument and the constituencies to be sampled.

21.  Dr.  Ling’s participation in these contract­related matters occurred at a time when she had two separate arrangements for employment with EMC/AMTech: first, that she would be consulting at Delaware Community College in March or April, 1986; and second that she would be serving on the EMC/AMTech Nantucket Institute faculty in June of 1986.

22.  By participating in awarding and monitoring the survey contract at a time when she had the above described arrangements for employment with EMC/AMTech, Dr. Ling violated G.L. c. 268A, §6.

23.  The Commission is aware of no evidence that Dr. Ling’s performance of her official duties was influenced by her relationship to Dr. Maguire.  Indeed, she showed some sensitivity to the potential conflict by raising the issue with her appointing authority, Chancellor Duffey, and disclosing her relationship with Dr. Maguire.[5]

As to Dr. Ling’s disclosure to and receipt of permission from her appointing authority, G.L. c. 268A, §6 does contain a mechanism[6] by which a state employee can participate in a particular matter notwithstanding a prohibited financial interest in that matter so long as she makes an appropriate written disclosure to her appointing authority, receives permission in writing and both the disclosure and the permission are filed with the Commission.  Here, however, neither the disclosure nor the authorization was put into writing or filed with the Commission.

The requirement that the disclosure and authorization be in writing serves at least two purposes.  First, it establishes a record of both the disclosure and subsequent determination of the appointing authority, a record which, among other things, protects the interest of the state employee if allegations of impropriety should arise.  Second, it forces both the state employee and the appointing authority to consider carefully the nature of the conflict of interest and the options available for dealing with that conflict.  Given the clear problem Dr. Ling’s involvement created under §6 of the conflict law, had Dr. Ling and Chancellor Duffey followed the proper procedure, they might well have concluded that Dr. Ling’s participation was unwise.

As the Commission said in a similar situation,[7]

Thus, while an argument can be made that a state employee who discloses a §6 conflict to his appointing authority and is told to participate ought to be able to rely on the appointing authority’s familiarity with the conflict law, especially where the appointing authority is a high ranking state official..., strict compliance with the written disclosure and authorization provisions of §6 is necessary to ensure that all due consideration is given to issues with potential controversy and the potential for abuse....

That it has insisted on a public resolution ... reflects the importance the Commission places on proper compliance with §6’s disclosure and exemptions provisions.  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.

Based on the foregoing, the Commission has determined that the public interest would be served by the disposition of this matter without further Commission enforcement proceedings on the basis of the following terms, to which Dr. Ling has agreed:

1.  that Dr. Ling will take all reasonable steps to ensure that all UMass-A employees in management positions familiarize themselves with G.L. c. 268A, §6; and

2.  that Dr. Ling waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this agreement in this or in any related administrative or judicial proceeding in which the Commission is or may be a party.[8]

 



[1] Enrollment management has been defined as being an approach which evaluates all functions of the university which impact on enrollment.  This includes marketing techniques, publications, enrollment materials, public relations, and image management.
[2] EMC/AMTech is now known as Maguire Associates, Inc.   AMTech’s name was changed officially at the Secretary of State’s Office on March 27, 1989.  EMC  is now  a  division of  Maguire Associates, Inc.
[3] An attitude and image survey is designed to obtain the opinions of “key constituencies;” that is to say, the survey obtains the opinions of those persons who are deemed most important to the overall functioning of the university outside the university itself.
[4] Section 6 provides an exemption for a state employee whose duties require her to participate in a particular matter in which there is a prohibited financial interest:  (1) she must advise her appointing official and this. Commission in writing of the nature and circumstances of the particular matter and make full disclosure of her financial interests; and (2) the appointing official shall then assign the matter to another employee, assume responsibility for the matter herself, or make a written determination (and file it with this Commission) that the financial interest is not so substantial as to be deemed likely to affect the integrity of the employee’s services.
[5] Dr. Ling also disclosed her receipt of fees from EMC/AMTech in her 1985 and 1986 SFIs.
[6] See footnote 4 above.
[7] In the Matter of John J. Hanlon, 1986 SEC 253, 255 (the Commission approved a Disposition Agreement in which a state police captain paid a fine of $250 for violating §6 by participating in the Commonwealth’s evaluation of    anti-theft device at a time when he owned substantial stock in the company marketing that device, notwithstanding his complete oral disclosure to his appointing authority of his stock ownership prior to so participating).
[8] The Commission is authorized to impose a fine of up to $2,000 for each Violation of G.L. c. 268A.  The Commission, however, believes that no fine is appropriate here.  The Commission notes that Dr. Ling did disclose her private relationship with Dr. Maguire to her appointing authority. Her situation is distinguishable from that in Hanlon, where, as discussed above, a small fine was imposed, by the fact that her post-disclosure involvement in the matter was relatively minimal and the private interest in question was that of a future employer’s and not her own.