Docket No. 349

In the Matter of William T. Griffin

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 inter-est 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 authority
under 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.