Docket No. 532

In the Matter of James Gibney

August 9, 1995

Disposition Agreement




This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and James
Gibney ("Gibney") 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 January 18, 1995, 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
Gibney. The Commission has concluded its inquiry and, on July
11, 1995, found reasonable cause to believe that Gibney violated
G.L. c. 268A, s.19.

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

1. Gibney was the Fall River assistant superintendent of
schools from 1989 to 1993. In

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January 1994, Gibney was appointed superintendent of schools by
the Fall River School Committee ("School Committee"), after
serving as the acting superintendent of schools for a number of
months. As such, Gibney was a municipal employee, as that term
is defined in G.L. c. 268A, s.1, at all times here relevant.

2. As assistant superintendent, Gibney was responsible for
maintaining the list of substitute teachers for the Fall River
school system. According to Gibney, during the time he was
responsible for the substitute list, every applicant who applied
for a substitute teaching position was put on the substitute
list, as long as he or she met the minimum education requirement
of two years of college.

3. The Fall River school system uses an average of 50 to
60 substitutes daily. Substitutes replace teacher assistants[1]
as well as teachers. At the times here relevant, Fall River
substitute teachers were paid a minimum of $44 per day. If a
substitute replaced a teacher and remained in the same assignment
for more than five days, the pay increased to $58; if a
substitute replaced a teacher assistant, the pay remained at $44
per day, regardless of the number of days in the same
assignment.[2]

4. In December 1990, Gibney's daughter, Christine Gibney
("Christine"), applied for a substitute teacher position. At the
time, Christine was in her third year of college.

5. Gibney, as assistant superintendent, reviewed
Christine's application, determined that Christine met the
minimum educational requirements to be a substitute and
instructed his secretary to place Christine's name on the
substitute list.[3]

6. Between December 1990 and June 1992, when she graduated
from college, Christine worked a total of 50 days as a substitute
in the Fall River school system.[4]

7. In September 1992, a year-long substitute teacher
assistant position became available at the Lincoln School in Fall
River. The Lincoln School principal contacted Gibney and
requested someone to fill the position. In response, Gibney gave
the Lincoln School principal the names of three people (including
Christine) from which to choose to fill the position.

8. The Lincoln School principal chose Christine and, in
September 1992, Christine was assigned to fill the substitute
teacher assistant position for the 1992-1993 school year.
Christine received the same assignment for the 1993-1994 school
year and thus worked two full 180-day school years in the same
substitute teacher assistant position. Christine was paid $44
per day for her substitute teacher assistant work at the Lincoln
School.

9. At no time, prior to or contemporaneous with his above-
described actions, did Gibney disclose to his appointing
authority, the School Committee, that he was adding his
daughter's name to the substitute list, that he was recommending
her to fill a long-term substitute teacher assistant position, or
that he was otherwise officially participating in his daughter's
hiring as a substitute.[5]

10. Section 19 of G.L. c. 268A, except as otherwise
permitted in that section,[6] provides, in relevant part, that a
municipal employee is prohibited from participating as such an
employee in a particular matter in which he knows a member of his
immediate family[7] has a financial interest.

11. The adding of Christine's name to the substitute
list and the offering of her name to the Lincoln School principal to
fill a long-term substitute teacher assistant position were
particular matters.[8] Both of these actions involved decisions
or determinations by Gibney in his official capacity as assistant
superintendent.

12. By, in his official capacity as assistant
superintendent, deciding to add Christine's name to the
substitute list and offering her name to the Lincoln School
principal to fill a long-term teacher assistant position, Gibney
participated[9] in these particular matters.

13. Christine had a financial interest, known to Gibney, in
her employment as a substitute. Therefore, by participating
officially in his daughter Christine's employment as a substitute
teacher assistant in Fall River, as described above, Gibney
participated as a municipal employee in particular matters in
which to his knowledge a member of his immediate family had a
financial interest. In so doing, Gibney violated G.L. c. 268A,
s.19.

14. Gibney fully cooperated with the Commission's
investigation.[10]

In view of the foregoing violation of G.L. c. 268A by
Gibney, 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 Gibney:

(1) that Gibney pay to the Commission the sum of one
thousand dollars ($1,000) as a

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civil penalty for violating G.L. c. 268A, s.19; and

(2) that Gibney 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.

-------------------------
[1] Teacher assistants are required to have a high school
diploma or its equivalent. At the time here relevant, assistants
were paid on an hourly basis, between $6 and $7 per hour for six
hours, thus earning $38 to $42 daily.

[2] Thus, a substitute teacher replacing a teacher assistant
was always paid more than the teacher assistant, during the
period here relevant.

[3] Prior to Christine's name being placed on the substitute
list, her educational credentials were verified by Gibney's
secretary in the same manner as was done with all applicants
being placed on the list.

[4] Christine's assignments, as with all substitute
assignments, were made by Gibney's secretary in response to calls
for substitutes from school principals. The Commission is aware
of no evidence that Gibney interfered on Christine's behalf in
these assignments.

[5] Gibney did not make a disclosure concerning his daughter
working as a substitute in the Fall River school system until
February 7, 1994. According to Gibney, he first became aware of
an obligation under the Education Reform Act (which took effect
on June 18, 1993) to formally notify the School Committee of his
daughter's employment in January 1994, when it was pointed out to
him during a public meeting at which he was interviewed for the
position of superintendent. According to Gibney, however, it was
common knowledge in the Fall River school system that Christine
was his daughter. General knowledge of Christine's relationship
to Gibney was not the equivalent, however, of Gibney's disclosure
to his appointing authority of the actions he was taking as
assistant superintendent concerning Christine. Furthermore, as
set forth infra, advanced disclosure to one's appointing
authority is required to avoid a violation of G.L. c. 268A, s.19.

[6] Section 19(b)(1) permits a municipal employee to
participate in a particular matter in which his immediate family
member has a financial interest if the employee first advises his
appointing authority of the nature and circumstances of the
particular matter and makes full disclosure of the financial
interest, and the employee receives in advance a written
determination from the appointing authority 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. Here, Gibney did not make such a disclosure to his
appointing authority (the School Committee) and did not receive
such a determination from the School Committee. Thus, s.19(b)(1)
is not applicable here.

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

[8] "Particular matter" means 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).

[9] "Participate" means to 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).

[10] Gibney aided the Commission throughout its
investigation into this matter by providing information and
documents. In addition to agreeing to resolve his violations of
s.19 with this Agreement, Gibney has made a commitment to
assisting others to avoid violating the law by offering to help
provide inservice training concerning the conflict of interest
law to other public school administrators.

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