Docket No. 323

In the Matter of James Geary

October 5, 1987

Decision and Order


Appearing:

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


DECISION AND ORDER

Page 306

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-

Page 307

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]

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[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 organisations, 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 ofiice 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.