Docket No. 558

In the Matter of Armand Gagne

Date: August 22, 1996

Disposition Agreement


This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Armand Gagne
("Gagne") 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 September 13, 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 Gagne.
The Commission has concluded its inquiry and, on July 11, 1995,
found reasonable cause to believe that Gagne violated G.L. c. 268A.

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

1. Gagne was, during the time relevant, the chairman of the
Board of Selectmen for the town of Dighton.[1] As such, Gagne was
a municipal employee as that term is defined in G.L. c. 268A,
s.1(g).

2. The town allows elected officials, including selectmen, to
participate in many of the benefits enjoyed by full-time employees,
such as the county retirement fund, the health insurance program,
and the tuition reimbursement program.

3. In the late 1970s or early 1980s, sometime prior to
Gagne's becoming a town official, the town implemented the tuition
reimbursement program to encourage town employees to further their
education in work-related areas. For a number of years in the
1980s, the town budgeted no money for the program. The town
reinstituted the program for fiscal year 1989 with a $5,000
appropriation made at the May 2, 1988 Town Meeting. Additional
appropriations of $5,000 and $4,800 were made for fiscal years 1990
and 1991, respectively.

4. The tuition reimbursement program provides the following
procedure:

a. The employee/applicant must request and receive prior
approval of the Department Head before registration and
attendance at class(es).

b. The course(s) must be job-related.

c. The tuition payment will be paid upon successful
completion of the course(s).

d. Books, teaching aids and materials, lab fees, student
fees are not covered under this policy.

(5) And finally, the final financial payment requires
approval of the Board of Selectmen.

5. In early 1991 Gagne informed the two other selectmen on
the Board, Gene Nelson ("Nelson") and Frank Costa ("Costa"), that
he planned to attend town management courses at Suffolk University.
Gagne requested that they approve his participation in the tuition
reimbursement program.

6. In a letter dated March 20, 1991, Nelson and Costa advised
Suffolk University that the town "will be responsible for the
tuition cost of Armand Gagne's attendance in your program for the
Spring semester, 1991. The monies have been appropriated into the

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'Town Tuition Account,' at the Annual Town Meeting of May 7, 1990."
Thus, Nelson and Costa approved the payment of Gagne's tuition for
the Spring 1991 semester.

7. Throughout fiscal years 1992 and 1993, Gagne continued to
enroll in courses at Suffolk University for each of the subsequent
semesters. According to Nelson and Costa, they were unaware that
Gagne's program was continuing beyond the Spring 1991 semester.

8. Between April 3, 1991, and December 30, 1992, Gagne and at
least one of the other two selectmen approved nine treasury
warrants authorizing a total of $22,447 in tuition payments to
Suffolk University for Gagne.[2]

9. For various reasons, neither Costa nor Nelson reviewed the
nine warrants prior to signing them.

10. Between one and nineteen days before the Board of
Selectmen authorized each of the nine treasury warrants, Gagne
submitted a Suffolk University tuition invoice to the town
accountant for payment. In his capacity as chairman of the Board
of Selectmen, and therefore "Department Head" for the purposes of
the tuition reimbursement policy, Gagne approved each invoice for
payment.

11. During his enrollment at Suffolk University, Gagne twice
participated as a selectman in appropriating funds for the tuition
reimbursement account without publicly disclosing his financial
interest in those funds:

a. At a November 4, 1991 special Town Meeting, the town
approved Gagne's motion to appropriate and transfer $4,800 to
fund the tuition account for fiscal year 1992; and

b. At a June 30, 1992 special Town Meeting, Costa
motioned to transfer an unused $10,000 appropriation to the
tuition reimbursement account "to fund education, training and
tuitions, (#902) within general government." When a citizen
questioned the propriety of that transfer, Gagne and Police
Chief Spratt explained that the $10,000 was needed to pay for
police officer retraining, estimated at $750 per police
officer. After the transfer was approved, the town learned
that the police retraining would cost only a small
administrative fee of approximately $200. Therefore, the
additional $10,000 remained available to fund Gagne's tuition.

12. During fiscal years 1991 through 1993, the town
appropriated a total of $24,400 to fund the tuition reimbursement
account.[3] The amounts paid out from the account during those
years were $980 to Fire Department employees, $200 for the Police
Department retraining, and $22,260 to Suffolk University for
Gagne,[4] leaving a balance of $960.

13. Gagne completed his course work at Suffolk University in
March 1993, earning a Master of Public Administration degree.

14. Section 19 of G.L. c. 268A prohibits a municipal employee
from participating[5] as such an employee in a particular matter[6]
in which to his knowledge he has a financial interest.

15. The decisions and determinations by the Board of
Selectmen to authorize payment of Gagne's tuition, and to transfer
funds to the tuition reimbursement account, were particular
matters.

16. Gagne participated as a selectman in each such
decision and determination as follows: by approving the
tuition invoices for payment as "Department Head"; by signing
the treasury warrants after personally ensuring that the tuition
payments would be included therein;[7] and by moving to have
funds transferred or explaining such transfers at special Town Meetings.

17. As a student enrolled at Suffolk University, Gagne knew
that he had a financial interest in these particular matters
because they would result in his tuition being paid.

18. Accordingly, by participating in his official capacity in
the decisions to authorize tuition payments and to transfer funds
to the tuition reimbursement account, particular matters in which
he had a financial interest, Gagne violated G.L. c. 268A, s.19.

19. Gagne fully cooperated with the Commission throughout its
investigation.

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

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(1) that Gagne pay to the Commission the sum of five
thousand dollars ($5,000) as a civil penalty for his
course of conduct in violating G.L. c. 268A, s.19; and

(2) that Gagne 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.

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[1] Gagne did not seek re-election as a selectman, pending
resolution of this matter.

[2] The warrants are dated as follows: April 3, 1991; July 3,
1991; November 6, 1991; February 12, 1992; July 22, 1992; August
19, 1992; August 26, 1992; September 30, 1992; and December 30,
1992. Three of the warrants were authorized by Gagne and only one
other selectman. The other six were signed by all three selectmen.

[3] The town appropriated $4,800 for each of fiscal years
1991, 1992, and 1993, and transferred an additional $10,000 for
fiscal year 1993, as described above.

[4] Suffolk University reimbursed the town $187 after Gagne
challenged the imposition of a $225 executive fee. Thus, there is
a $187 difference between tuition costs approved on the nine
treasury warrants, $22,447, and the tuition actually paid, $22,260.

[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] Ordinarily, the signing of a treasury warrant for payroll
without more does not amount to participation. EC-COI-87-32
(signing payroll warrant is not personal and substantial
participation unless the payroll item is in dispute; signing the
warrant is peripheral to certification of the hours worked and
included therein). In this case, however, Gagne sighed each
treasury warrant after personally certifying his own tuition
invoices to be included therein, thereby ensuring at every step
that his tuition would be paid. See also id. footnote 2 (This
opinion is limited to the certification of a payroll by an
appointing authority which does not actively supervise employees").

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End of Decision