October 5, 1987

Decision and Order


Marilyn Lyng O'Connell, Esq., Counsel for Petitioner State Ethics Commission

Gerard Mackin,Jr., Esq., Counsel for Respondent James Geary

Commissioners: Diver, Ch., Basile, Burns, Epps, Gargiulo

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I. Procedural History

The Petitioner initiated these adjudicatory proceedings on February 23, 1987 by filing an Order to Show Cause pursuant to the Commission's Rules of Practice and Procedure, 930 CMR 1.01(5)(a). The Order alleged that the Respondent, James Geary, a member of the Avon Board of Selectman, violated G.L. c. 268A, s.19 by voting as a selectman on his brother's appointment as acting police chief and permanent police chief, and by signing the police chiefs three-year contract.

Respondent filed an Answer on March 10,1987 in which he agreed to the factual allegations in the Order to Show Cause but denied any violation of the statute. The parties have also submitted additional stipulated facts and documents.

An adjudicatory hearing was held on July 30,1987 before Commissioner Joseph Basile, Jr., a duly designated presiding officer. See G.L. c. 268B, s.4(e). The parties thereafter filed post-hearing briefs and presented oral argument before the Commission on September 16, 1987. In rendering the Decision and Order, the Commission has considered the testimony, evidence and arguments of the parties.


II. Findings of Fact

1. Mr. Geary is an elected member of the Avon Board of Selectmen, and was a selectman at all times relevant to the Order to Show Cause.

2. Mr. Geary's brother, Robert Geary, has worked for the Avon Police Department since 1961. From 1961 to 1971 he was a patrolman; from 1971 to 1985 he was a sergeant; by April, 1985, he was the most senior officer in the department.

3. On April 18, 1985, the Board of Selectmen appointed Robert Geary acting police chief of the Avon Police Department. The former police chief had recently retired, and Robert Geary was the only applicant for the position. Mr. Geary was present and voted in favor of the appointment, on a unanimous (3-0) voice vote, on a motion made and seconded by the other two selectmen.

4. On August 29,1985, the Board of Selectmen unanimously appointed Robert Geary permanent police chief for a three year period. Mr. Geary was present and voted in favor of the appointment, following a motion made and seconded by the other two selectmen.

5. On August 29,1985, Mr. Geary, as a selectman, signed a three-year police chiefs contract between the town and Robert Geary.

6. On April 7,1983, Respondent received a letter from A. Stanley Littlefield, Town Counsel, advising him that he is "prohibited from participating in a vote on any issue in which his brother has a financial interest, i.e., salary or other compensation.

7. A. Stanley Littlefield was present at the April 18, 1985 meeting of the Board of Selectmen. The minutes of the August 29,1985 meeting of the Board of Selectmen do not indicate whether Mr. Littlefield was present.


III. Decision

For the reasons stated below, the Commission concludes that the Respondent violated G.L. c. 268A, s.19 by participating in particular matters in which his brother had a financial interest.

Section 19 of G.L. c. 268A prohibits a municipal employee from participating as such an employee in a particular matter in which, to his knowledge, he or his immediate family has a financial interest. As an Avon Selectman, Mr. Geary is a municipal employee as that term is defined in G.L. c. 268A, s.1(q), and his brother
is a member of his immediate family. G.L. c. 268A, s.1(e). Decisions to appoint a family member to a position and to execute a contract of employment for a term are particular matters.[1] A family member has an obvious financial interest in the decisions resulting in his appointment under contract to a paid appointive
position. See, e.g., In the Matter of Rita Walsh-Tomasini, 1984 Ethics Commission 207; In the Matter of George Ripley, 1986 Ethics Commission 307; {Commission Advisory No. 11} (Nepotism).

Respondent's attorney conceded at the July 30,1987 hearing that Mr. Geary had committed "a technical violation" of s.19. In his post-hearing brief and in oral argument, he argues that Mr. Geary's participation in unanimous votes was not substantial participation as that term is defined in G.L. c. 268A, s.1(j).[2] While we
recognize that Mr. Geary's votes were not determinative of the outcome in either instance, nor was his signing of the contract, his voting and decisions regarding his brother's promotions nonetheless constituted substantial participation. As the Commission stated in Advisory No.11:

An official need not be the sole decision-maker to be prohibited from participating in the hiring decision. For example, an official cannot as one member of a board, vote to hire his family member regardless of the size of the board. Nor would it matter that there was little, if any, controversy among the board members regarding the decision. A person can no more participate in making a vote of a 15 member board unanimous by casting the 15th vote than one can cast the deciding vote in eight to seven vote.

({Commission Advisory No. 11}, p. 3.)

By voting for his brother's appointment and signing his brother's contract, Mr. Geary's participation was "more than a casual or incidental encounter" but involved a "decision-making" role. Buss, The Massa-

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chusetts Conflict of Interest Statute, An Analysis, 45 B.U.L. Rev. 299,335(1965). This conclusion is consistent with a long line of Commission precedent finding violations of s. 19 despite the fact that the votes were either unanimous or involved approvals by a wide margin with little controversy. See, In the Matter of William
G. Slaby and Michael C. Mannix, Commission Adjudicatory Docket Nos. 207 and 210, Disposition Agreements, May 24,1983 (unanimous vote by selectmen); In the Matter of John Rogers, Jr., 1985 Ethics Commission 227(4-1 vote by school committee); In the Matter of Robert Rennie, Commission Adjudicatory Docket No. 253, Disposition Agreement, March 16, 1984(8-2 vote by city council).

The plain language of s.19 does not require that the participation be influential or determinative of a result. The substantiality of influence can, however, be considered in the determination of remedy, see, G.L. c. 268A, s.21(a), or as an element of the Commission's discretion in assessing an appropriate penalty pursuant to c. 268B, s.4(j). Substantiality of influence is not, however, an element of a violation of s.19, nor would such requirement be consistent with the preventative purposes of s.19. The flat prohibition of s.19 not only protects the public confidence in the integrity of its municipal decisions, but also prevents a municipal employee from having to choose between the public interest and his personal loyalties.

IV. Sanction

The Commission may require a violator to pay a civil penalty of not more than two thousand dollars for each violation of G.L. c. 268A. Although the potential maximum fine in this case is $6,000, G.L. c. 268B, s.4(j)(3) we believe that the imposition of a small fine is warranted in this case. In the Matter of Frederick B.
Cronin, Jr. (August 27,1986) the Commission issued a public enforcement letter without a fine where the respondent, a Lynn city tax collector, violated the conflict law by hiring his brother as his assistant. The Commission did not impose a fine because it found that Cronin had received express permission from the city council and the mayor, his appointing authority, to hire his brother. The express permission present in the Cronin case is not present here. The stipulated minutes reflect that A. Stanley Littlefield, who was town counsel, was present at the April 18,1985 meeting. There is no indication in the minutes that Mr. Littlefield spoke, did not speak, was acting as town counsel, or whether there were some other matters with which he was occupied. Nor was Mr. Littlefield called as a witness. Therefore the Commission can make no finding of any express or implied permission to the Respondent to participate based on the silence of town counsel.[3]

There are mitigating facts which dictate a low fine. The nature of participation is an appropriate circumstance for the Commission to consider in determining the amount of a fine. Fines are higher where s.19 participation is determinative. In this case, the participation made no difference for two reasons: 1) because his brother was the only candidate for Chief of Police and 2) because his brother had the support of at least two other members of the Board of Selectmen. Similarly, there was no personal gain to the Respondent as a result of his participation and there was no attempt to conceal any of the relevant facts; nor was there evidence of an unfair advantage or financial preference or any harm to the public. See In the Matter of Roger H. Muir, 1987 Ethics Commission 340 (September 17, 1987). Also significant is the credibility of Mr. Geary's testimony. The Commission found him to be honest, forthright and open.

V. Order

On the basis of the foregoing pursuant to its authority under G.L. c. 268B, s.4, the Commission orders Mr. Geary to pay two hundred fifty dollars ($250) to the Commission as a civil penalty for violation of G.L. c. 268A, s.19.[4]


[1] "Particular matter", is defined as 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).

[2] "Participate", is defined as participate in agency action or in a particular matter personally and substantially as a state, county, and municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c.268A, s.1(j).

[3] In fact, on April 7,1983 Respondent was warned by Town Counsel not to participate or vote on any aspect of the "conditions of employment of his brother". A reasonable person of ordinary intelligence would understand that a promotion to the office of Chief is a condition of employment. At a minimum, Respondent had
sufficient warning to seek an opinion specific to the facts prior to his participation.

[4] Notice of Appeal: Respondent is notified of his right to appeal this Decision and Order pursuant to G.L. c. 268B, s.4(k) by filing a petition in Superior Court within thirty (30) days of notice of this Decision and Order.