June 2, 1989
This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Robert Gillis (Mr. Gillis) pursuant to Section 11 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. 268B, s.4(j).
On June 8, 1987, the Commission initiated, pursuant to G.L. c. 268B, s.4(a), a preliminary inquiry into a possible violation of the conflict of interest law, G L. c. 268A by Mr. Gillis while he was the Chief of the Brockton Police Department (BPD). The Commission has concluded its inquiry and, on November 21, 1988, found reasonable cause to believe that Mr. Gillis violated G.L. c. 268A s.19.
The Commission and Mr. Gillis now agree to the following findings of fact and conclusions of law:
1. At the times here relevant, Mr. Gillis was the Chief of the BPD. Mr. Gillis was appointed as BPD Chief by Brockton Mayor Carl D. Pitaro, with the confirmation of the Brockton City Council, and served as BPD Chief from January, 1984 until November, 1987. Mr. Gillis was, therefore, during the period here relevant, a municipal employee as defined in s.1(g) of G.L. c. 268A. Prior to becoming BPD Chief, Mr. Gillis was a BPD Sergeant.
2. Mr, Gillis has a son Andrew Gillis (Andrew). In 1986, Andrew applied for a civilian telephone operator (CTO) position with the BPD. Prior to Andrew's formally applying for the CTO position, Mr. Gillis communicated with Mayor Pitaro concerning Andrew's seeking the position. In a letter dated September 12, 1986, Mr. Gillis wrote to Mayor Pitaro,
May I have an opportunity to discuss with you the filling of vacancies in the Telephone Operator's area? I have at least one vacancy coming up this month, and two to four weeks are required for training. A Civil Service list will be available shortly, but in the meantime the slot must be filled. (We have four permanent positions and ten provisional.)
3. On or about September 12, 1986, Mr. Gillis met with Mayor Pitaro in the Mayor's office and discussed with the Mayor Andrew's applying for the CTO position. Subsequently, in a letter dated September 16, 1986, Mr. Gillis wrote to Mayor Pitaro,
In accordance with my talk with you, and in the absence of a Civil Service list, I enclose herewith a copy of [sic] resume of my son, Andrew A. Gillis, who has requested consideration for the position of Civil Telephone Operator in this Department. With your approval, I should like to start his employment when Kevin Smith's resignation is effective.
4. Shortly thereafter, on or about September 21, 1986, Andrew was hired as a CTO for the BPD. Andrew was appointed to the CTO position by Mayor Pitaro. Mr. Gillis, as Chief, signed the "Notification of Personnel Action" (NPA) form for his son's hiring, authorizing Andrew's placement on the BPD payroll (the NPA form was also signed by Mayor Pitaro and Brockton Personnel Director Marge Donovan).
5. Andrew worked the 4:00 P.M. to midnight shift as a CTO and was paid $6.40 an hour for his services. Andrew resigned his CTO position in May, 1987, when questions concerning the propriety of his appointment were raised.
6. Section 19 of G.L. c. 268A provides in relevant part that, except as permitted by s.19, a municipal employee is prohibited from participating, as such an employee, in a particular matter in which, to his knowledge, a member of his immediate family has a financial interest.
7. The appointment of Andrew as a CTO was a particular matter for s.19 purposes. Mr. Gillis participated in that particular matter by communicating (by letter and in person) with Mayor Pitaro concerning that appointment. Because the CTO position was a paid position, Andrew had, at the time of the appointment, a financial interest in the appointment. Mr. Gillis was aware at the time he discussed his son's appointment with Mayor Pitaro that his son would receive compensation for his services as a CTO, should he be appointed.
8. By participating in the appointment of his son as a CTO, as described above, Mr. Gillis participated as BPD Chief in a particular matter in which his son had a financial interest, thereby violating G.L. c. 268A, s.19.
9. Pursuant to s.19(b)(1), Mr. Gillis could have received a written determination from his appointing authority, Mayor Pitaro, permitting his participation in matters in which his son, Andrew, had a financial interest, including those described above. Provided this written determination was filed with the city clerk and made a matter of public record, it would have exempted Mr. Gillis from the restrictions of s.19(a) and permitted his participation as above-described. Here, however, there was no written determination by Mayor Pitaro that Mr. Gillis could participate in matters in which Andrew bad a financial interest.
Nonetheless, the Commission has given some consideration to the fact that Mr. Gillis' appointing authority was aware of his actions concerning his son. Accordingly, while the Commission can impose a fine of up to $2,000 for each violation of s.19, it has determined that the relatively small fine imposed here properly reflects this mitigating factor. That the Commission has insisted on a public resolution and a fine reflects the importance the Commission places on proper compliance with s.19's disclosure and exemption provisions.
In view of the foregoing violation of G.L. c. 268A, s.19, 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 Mr. Gillis:
1. that Mr. Gills pay to the Commission the sum of two hundred fifty dollars ($250.00) as a civil penalty for violating G.L. c. 268A, s.19; and
2. that Mr. Gillis waive all rights to contest the findings of fact, conclusions of law, and terms and conditions contained in this agreement and any related administrative or a judicial proceeding to which the Commission is or may be a party.
 Section 19(b)(1) provides: (b) It shall not be a violation of this section (1) if the municipal employee first advises the official responsible for appointment to his position of the nature and circumstances of the particular matter and makes full disclosure of such financial interest, and receives in advance a written determination made by that official that the interest is not so substantial as to be deemed likely to affect the integrity of the service's which the municipality may expect from the employee,
 See, eg., In the Matter of John J. Hanlon, 1986 SEC 253, 255, where the disposition agreement between the subject and the Commission stated, regarding similar disclosure and exemption provisions in the state counterpart to s.19,
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. Imposing a fine also should act as a deterrent in making clear that ultimately the primary responsibility for compliance with these provisions rests on the public employee seeking the exemption.
(At the local level the written exemption would be filed with the town clerk rather than with the Commission.)