October 26, 1988

Decision and Order

Appearing:

Freda K. Fishman, Esq.
Robert A. Levite, Esq.
Counsel for Petitioner

Andrew C. J. Meagher, Esq.
Counsel for Respondent

Commissioners:

Diver, Ch., Basile, Epps, Jarvis, Pappalardo

 

1. Procedural History

The Petitioner initiated these adjudicatory proceedings on January 11, 1988 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 William T. Griffin (Respondent), Chairman of the Executive Committee of the Worcester County Advisory Board, violated GL c. 268A, s. 13 on January 18, 1987 by voting to approve a Reserve Fund transfer request, and by signing the approval of the transfer, that would be used to fund salary increases for promoted employees of the Worcester County Jail, including his son, Dennis Griffin.

Respondent filed an Answer on February 8, 1988 in which he agreed that, on January 18, 1987, he looked at the names of the personnel that would be affected by the transfer and was aware that his son, Dennis Griffin, was on that list. Respondent denied many of the other material allegations found in the Order and raised
the following

Page 384

defenses:

1. Respondent's defense has been prejudiced by the Commission's advance knowledge of the facts upon which it based its vote to issue the Order to Show Cause.

2. Respondent's due process rights have been violated by the fact that the Ethics Commission is represented by both the Petitioner and Presiding Officer in this matter;

3. Respondent's offense, if any, was a less serious violation of the statute and should have been handled confidentially;

4. Respondent did not know, on January 18, 1987 or at any time, that Dennis Griffin would receive a salary increase and promotion when the alleged transfer request was approved;

5. Dennis Griffin did not receive any benefit from the January 18, 1987 Executive Committee vote;

6. Dennis Griffin did not have a financial interest in the January 18, 1987 Executive Committee vote;

7. The reserve fund transfer request was not a particular matter within the meaning of the statute; and

8. Respondent was not a county employee in that the Executive Committee of the Worcester County Advisory Board is not a county agency;
 

An adjudicatory hearing was held on May 3,1988 before Commissioner F. Washington Jarvis, a duly designated presiding officer. See, G.L. c. 268B, s.4(c). The parties thereafter filed post-hearing briefs and presented oral argument before the full Commission on September 14, 1988. Based upon a review of the evidence and arguments presented by the parties, the Commission makes the following findings and conclusions.
 

II. Findings of Fact

1. Respondent was Chairman of the Worcester County Advisory Board's Executive Committee and a member of the Advisory Board at
all relevant times.

2. Respondent's son, Dennis Griffin, was an employee of the Worcester County House of Correction from February 14, 1983 to May 1, 1987. From February 26, 1987 until the date of his resignation, Dennis Griffin took an unpaid leave of absence from his position.

3. Dennis Griffin was unhappy with his job at the Worcester County House of Correction and had been so since 1983. As of January 18, 1987, Dennis Griffin continued to be unhappy with his employment but had not offered his resignation or notice.

4. On January 15, 1987, the County Commissioners voted to request the approval of the County Advisory Board for a transfer of $17,754.30 from the Reserve Account to the jail and House of Correction budget to be used to fund salary increases for employees to be promoted under Sheriff-elect Flynn's proposed
reorganization of the Jail and House of Correction. The request form which the County Commissioners sent to the County Advisory Board referred to a copy of the Sheriff-elect's request, which was attached to it.

5. On January 18, 1987, the Executive Committee of the Advisory Board voted to approve the transfer request. Respondent was present, voted in favor of the transfer and signed the approved request on behalf of the Advisory Board. Prior to voting, Respondent had read the Sheriff-elect's transfer request and, at the time he voted, knew his son would receive a salary increase and promotion once the transfer request was approved.

6. On February 9, 1987, Respondent called the legal Division of the Commission and asked if he could recall the Executive Committee of the Advisory Board to revote the transfer. He was advised that "participation" for s. 13 purposes includes a request for reconsideration and revote and that he ought not to take such action.

7. On February 10, 1987, the County Commissioners voted to reconsider the Reserve Fund transfer request on February 17, 1987.

8. On February 17, 1987, the County Commissioners rescinded their January 15, 1987 vote and voted to reapprove the transfer request.

9. On March 18, 1987, the Advisory Board voted 7-0 to approve the second request for the transfer. Respondent was not present at this meeting.

 

III. Decision

For the reasons stated below, the Commission concludes that the Respondent violated G.L. c. 268A, s. 13 on January 18, 1987 by voting to approve a Reserve Fund transfer request, and by signing the approval of the transfer, that would be used to fund salary increases for promoted employees of the Worcester County
Jail, including his son, Dennis Griffin.

A. Due Process

In his Answer, Respondent contends that his due process rights under the federal and Massachusetts constitutions are violated by virtue of the organization and procedures of the Commission, in which the investigatory, prosecutorial and adjudicatory functions are combined. He also alleges that this combination deprives him
of an impartial fact-finder. We have held elsewhere that we find no constitutional defect in the statutory scheme. In the Matter of George A" Michael, 1981 SEC 59; In the Matter of James J. Craven, 1980 SEC 17, aff'd sub nom, Craven v. State Ethics Commission, 390 Mass. 191 (1983).

B. Enforcement Discretion

Page 385

The Commission properly exercised its discretion in deciding to resolve this matter publicly. Section 4 of G.L. c. 268B governs the investigations and "appropriate proceedings" conducted by the Commission and establishes the scope of the Commission's remedial and punitive powers. A 1980 case has made it clear that the Commission has discretion to determine whether sufficient cause exists to warrant action under s. 4. In the Matter of John R. Buckley, 1980 SEC 2.

Accordingly, we concur with the Presiding Officer's denial of Respondent's Motion for a Confidential Resolution. We note that the motion would have more appropriately been made before the issuance of the Order to Show Cause. Also, we find nothing in {Commission Advisory No. 11} on Nepotism inconsistent with the proper exercise of discretion in the decision to pursue this matter publicly.

C. Section 13 Substantive Violation

1. The Worcester County Advisory Board is a "county agency and William T. Griffin, a member and Chairman of its Executive committee, was a "county employee."

General Laws chapter 268A, s.1(d) defines a county employee as a person performing services for or holding an office, position, employment, or membership in a county agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis.

Respondent contends that the Executive Committee of the Worcester County Advisory Board is not a county agency because his membership results from his status as a member of the Leicester Board of Selectmen, whose interests he was representing on the Executive Committee.

The Commission has noted, however, that where any agency possesses characteristics of more than one level of government, the Commission will review the interrelation of the agency with these levels to determine the agency's status under G.L. c. 268A" EC-COI-83-157 at 2. The name of a government agency is not
determinative but, rather, the level of government to be served by the agency in question." Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. L. Rev. 299, 310 (1965). Just as regional school districts, which have a field of operations which extend beyond their constituent localities, are independent municipal agencies, see, EC-COI-82-25, the Executive Committee of the Worcester County Advisory Board has a county agency status because its field of operations extends beyond its members' constituent localities. The financial judgments that are involved in the operation of the county hospital, registry of deeds, courthouse and correctional facilities are of concern to more than the residents of one city or town in the county. This is true despite the fact that Respondent is also a municipal employee in his position as a Leicester Selectman. Since the Executive Committee of the Worcester County Advisory Board is primarily concerned with the operation of county facilities and the expenditure of county funds, it is a county agency for the purposes of G.L. c. 268A. Since Respondent was performing
services for and holding office in a county agency, he was a county employee for the purposes of the conflict law, see, G.L. c. 268A, s. 1(d),

 

2. The Reserve Fund Transfer Request was a "Particular Matter."

Section 1(k) of G.L. c. 268A defines particular matter" 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.

We conclude that a fund transfer request is a particular matter within the meaning of s. 1 (k). Respondent contends that s. 1(k)'s express exclusion of the enactment of general legislation by the general court from this definition indicates that the Reserve Fund transfer request was not a particular matter within the meaning of the statute. We are not persuaded that the submission and approval of the fund transfer can be reasonably regarded as the enactment of general legislation by the General Court. As we understand it, the fund transfer approval process is entirely within the jurisdiction of the Advisory Board and does not require further approval by the General Court Given the express language of s. 1(k), we cannot assume that the General Court meant to exempt the Executive Committee of the Worcester County Advisory Board's approval of reserve fund transfer requests.

Respondent also argues that because he participated only in a consolidated vote on the entire transfer request, he did not participate in a particular matter in violation of the statute. Respondent misconstrues Graham v. McGrail, 370 Mass. 133 (1976) when he interprets it to exclude consolidated votes from the definition of particular matter. The Graham court, in fact, specifically outlined a line item vote process that must be undertaken before a consolidated vote is permissible. No line item votes were involved on January 18, 1987.

The Commission has stated, in EC-COI-87-25, that where a city council may vote only on the overall budget and is statutorily precluded from line item votes, city council members may vote on the bottom line, even when the financial interest of an immediate family member is implicated despite the Graham holding.

Page 386

Although Respondent has asserted, in his brief, that the Worcester County Advisory Board Executive Committee's powers were similarly limited, he has presented, and we can find, no support for this assertion in the pertinent legislation or by-laws. See, G.L. c. 35, s. 32, By-laws of the Worcester County Advisory Board. EC-COI-87-25 was premised on a specific factual showing that Respondent has not made.

 

3. Dennis Griffin had a Financial Interest in the January 18, 1987 Vote.

It is not disputed that the transfer of funds from the County Reserve Fund to the budget of the Worcester County House of Correction would have resulted in the funding of a $500.00 salary increase, attendant upon a promotion for Dennis Griffin. Respondent argues, rather, that this fact is irrelevant because Dennis Griffin did not receive any benefit from the January 18, 1987 vote because it was quickly rescinded and not revoted until after Dennis Griffin took an unpaid leave of absence from his position, only to resign several months later. In addition, Respondent contends that he knew of Dennis Griffin's impending departure from his county job, because of job dissatisfaction, and so knew that his son would not see any financial benefit from the vote at issue.

We conclude that, at the time of the vote, Dennis Griffin's financial interest in his salary increase was present and reasonably foreseeable. See, EC-COI-84-98. Although Dennis Griffin apparently was dissatisfied with his work, he had been so almost from the beginning of his employment at the Worcester County House of Correction, several years earlier. No resignation had been tendered or notice given. Moreover, the Respondent was aware of his son's financial interest in the transfer approval. It was reasonably foreseeable, at the time of the vote, that Dennis Griffin had a financial interest in the vote. The fact that Dennis Griffin would never actually receive this financial benefit was not reasonably foreseeable at the time of the vote. Dennis Griffin was unhappy with his job, but the weight of the
evidence was that Dennis Griffin would continue in his job as he always had, despite several years of dissatisfaction.

Finally, Respondent argues that Dennis Griffin did not violate s. 19 in the January 18, 1987 transfer request vote because other county officials had made the salary and promotion recommendation involved and because Respondent's vote did not finalize the promotion since approval by the Personnel Board was still required. In substance, he asserts that his participation was not personal and substantial both because it involved little discretion and because it involved a decision that was not the final decision on Dennis Griffin's promotion and pay-raise. Although not every action by a public official will satisfy the substantiality requirement, In the Matter of John R. Hickey, 1983 Ethics Commission 158 at 159, the Commission has made it clear that participation in a necessary step of a promotion for an immediate family member is forbidden. See, Commission Advisory No. 11 on Nepotism at 8. In addition, "participation" is not limited to discretionary and/or final decisions for s. 19 purposes, In the Matter of George Najemy, 1984 Ethics Commission 223 at 224, and should not be so limited for s. 13.

 

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. 268B, s. 40) (3). Although the potential maximum fine in this case is $2,000.00, we believe that the imposition of the maximum fine is not warranted. This violation involved an annual salary
increase of $547.50, a not insignificant amount of money, see, In the Matter of Paul X. Tivnan, 1988 SEC 348, although smaller than the amount of money involved in some other Commission cases, see, In the Matter of Paul A. Bernard, 1985 SEC 226. The fact that Respondent had only one child affected by the transfer request makes a $500.00 fine no less appropriate. See, In the Matter of Marjorie Goudreault, 1987 SEC 280.

 

V. Order

On the basis of the foregoing pursuant to its authorityunder G.L. c. 268B, s. 4, the Commission orders Respondent to pay five hundred dollars ($500.00) to the Commission as a civil penalty for his violation of G.L. c. 268A, s. 13.