Docket No. 438

In the Matter of John L. Griffith

March 3, 1992

Disposition Agreement




This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and John L. Griffith
(Griffith) pursuant to s. 5 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 December 12, 1990, the Commission initiated a preliminary
inquiry into possible violations of the conflict of interest law,
G.L. c. 268A, involving Griffith, an environmental engineer with
the Department of Environmental Management (DEM). The Commission
concluded its inquiry on September 11, 1991, and by a majority
vote, found reasonable cause to believe that Griffith violated G.L.
c. 268A.

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

1. At all relevant times, Mr. Griffith was a DEM employee
working for the Office of Safe Waste Management (OSWM). His
responsibilities as an OSWM engineer included analyzing hazardous
waste management and technologies in proposed facilities for their
conformance with sound engineering principals and for environmental
impact.

2. In April 1987, Clean Harbors Inc. (CHI) filed a Notice of
Intent with the Hazardous Waste Facility Site Safety Council
(Safety Council)[1] regarding a proposal to construct a rotary kiln
incinerator (RKI) in Braintree. (The RECI would dispose of
hazardous waste.) The Safety Council gave initial approval to the
project in October 1987.

The project then moved to the so-called "MEPA stage," which
involved compliance with the Massachusetts Environmental Protection
Act. This involved two simultaneous tracks. One was the development
of a standard Environmental Impact Report (EIR) to be reviewed by
the Executive Office of Environmental Affairs (EOEA). Parallel to
that, the Safety Council developed its own analysis which included
input into the EIR.

The scope of the EIR was agreed upon in April of 1988.
Thereafter, CHI developed the EIR in three phases. The first,
submitted in the summer of 1988, was a study protocol which
described how they were going to do their analysis. The second
stage, developed in the fall of 1988, concerned baseline reports.
The baseline reports involved CHI's analyzing the status quo at the
time. The final stage involved developing impact studies; in other
words, how the incinerator would affect what was there. As CHI
finished draft phases of the EIR, it filed copies with the Safety
Council and various community groups.[2]

The role of OSWM in the foregoing regulatory process was as
follows: DEM is a statutory member of the Safety Council. The
Commissioner or his designee is an official member of the Council.
The DEM commissioner designated the OSWM director as his designee
to sit on the Council. Consequently, OSWM received and reviewed the
CHI study protocol, baseline reports, and impact studies.
Griffith's job, as an OSWM engineer, was to review and comment on
each of the submissions, as is further discussed below.

3. At all times relevant herein, Griffith taught courses in
business management at Northeastern University.

4. In or about January or February 1988, Griffith began
discussing with CHI's training and development representative the
possibility of his teaching management training courses for CHI
personnel.

5. After some back and forth discussion, Griffith submitted a
written proposal to CHI on October 25, 1988, to teach 22 training
sessions. On October 26, 1988, Griffith and the CHI representative
further discussed the training arrangement. On October 27, 1988,
the CHI representative made a formal offer to Griffith as to the
scope and compensation of such a training arrangement. By the end
of November 1988, Griffith and CHI agreed on the scope of his
employment arrangement with CHI.[3] Pursuant to the above
arrangement, Griffith taught courses at CHI on a once a week basis
beginning on January 11, 1989, and ending on May 9, 1989.

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6. Griffith billed CHI for and was paid $7,723.50 for teaching
the foregoing courses.

7. By memo dated August 17, 1988, Griffith wrote to the OSWM
Director offering certain comments on CHI's draft study
protocol.[4] The memo made specific recommendations as to actions
that CHI should take.[5]

8. Beginning on November 22, 1988, Griffith, pursuant to the
OSWM Director's request, began a review of the CHI baseline report.

9. By memo dated December 29, 1988, Griffith wrote to the OSWM
Director evaluating the above CHI baseline report. In his memo,
Griffith raised a number of questions regarding the adequacy of the
report.

10. Except as otherwise permitted in that section,[6] s.6 of
G.L. c. 268A prohibits a state employee from participating in a
particular matter in which, to his knowledge, an organization with
which he is negotiating for or has an arrangement concerning
prospective employment has a financial interest.

11. The determinations by OSWM regarding CHI's various RKI
submissions were particular matters as defined in G.L. c. 268A,
s.1(k).

12. When, in February of 1988, Griffith began discussing with
CHI an arrangement by which he would provide management training
courses for CHI personnel, he was negotiating for employment with
CHI within the meaning of c. 268A, s. 6.[7]

13. Griffith and CHI continued to negotiate such an
arrangement between February 1988 and November 1988 (when an
agreement was reached). Notwithstanding the fact that these
negotiations were occurring, Griffith participated in the review of
the CHI's RKI proposal by preparing the August 17, 1988 written
evaluation memo of CHI's draft study protocol.

14. CHI had an obvious financial interest in OSWM's
determination as to the adequacy of CHI's draft study protocol.

15. Therefore, Griffith violated G.L. c. 268A, s. 6 when he so
participated after beginning negotiating for employment with CHI.

16. As stated above, by no later than the end of November
1988, Griffith and CHI had agreed upon an arrangement for
employment (which would begin in January 1989). Nevertheless,
Griffith continued to participate in the review of CHI's RKI
proposal by, beginning on November 17, 1988 and culminating in his
December 29, 1988 memo to the OSWM Director, reviewing the CHI
baseline report. Again, CHI had an obvious financial interest in
OSWM's determination as to the adequacy of the baseline report.
Therefore, Griffith violated s. 6 when he so participated while
having an arrangement for employment with CHI.

17. The Commission has found no evidence to suggest that in
his capacity as a DEM employee, Griffith acted to provide any
special or favorable treatment to CHI while he was negotiating for
or had an arrangement for employment with CHI.[8]

In view of the foregoing violations of G.L. c. 268A, s. 6, 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 Griffith:

1. that he pay to the Commission the sum of one thousand
dollars ($1,000.00) as a civil fine for violating G.L. c. 268A, s.
6; and

2. that he waive all rights to contest the findings of fact,
conclusions of law and terms and conditions contained in this
agreement in this or any related administrative or judicial
proceeding to which the Commission is or may be a party.

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[1] Pursuant to G.L. c. 21D, s. 4, the Safety Council's
responsibilities include reviewing all proposals for the
construction and operation of hazardous waste facilities on
proposed sites.

[2] After these dealings with the Safety Council and community
groups, CHI filed their EIR with the EOEA Secretary in July of
1989. The Secretary determined that the EIR was not adequate. He
asked for more information. CHI prepared a supplemental EIR which
was filed in January of 1990. The Secretary ruled that the EIR was
adequate in May, 1990. In September 1990, however, the EOEA
Secretary determined that the site was not suitable. Consequently,
the RKI was not built.

Page 569

[3] It is unclear exactly when this agreement was reached.

[4] It is unclear when Griffith first began reviewing the
draft study protocol.

[5] For example, he recommended that the background air
quality be considered.

[6] Section 6 provides the following exemption for a state
employee whose duties require participation in a particular matter
in which there is a prohibited financial interest: (1) he must
advise his appointing official and this Commission in writing of
the nature and circumstances of the particular matter and make full
disclosure of his financial interest; and (2) the appointing
official should then assign the matter to another employee, assume
responsibility for the matter, or make a written determination (and
file it with this Commission) that the financial interest is not so
substantial as to be deemed likely to affect the integrity of the
employee's services.

[7] As the Commission has explained in Advisory No. 14:

Although the term "negotiating for prospective employment" is
not defined in G.L. c. 268A, the Commission and courts have
given a common sense meaning to negotiating [footnote
omitted]. The key operating principle is mutuality of
interest. Where a public employee and a person or organization
have scheduled a meeting to discuss the availability of a
position and the employee's qualifications for the position,
the employee will be regarded as negotiating for prospective
employment with that person or organization. See, EC-COI-82-8
(where an employee affirmatively responds to an inquiry from
a prospective employer and meets with the employer, the
employee is negotiating for future employment); Department of
the Attorney General, Personnel Manual (1988), P. E-8
("employment negotiations exist as soon as both the employee
and the prospective employer show any interest in the employee
working for the prospective employer. For example, disclosure
must be made as soon as an employment interview is
scheduled.")

[8] No such evidence, however, is necessary to establish a s.
6 violation. As the Commission said In re Kurkjian, 1986 SEC 260,
262, "Section 6, like many of the other sections of G.L. c. 268A,
is intended to prevent any questions arising as to whether the
public interest has been served with the single-minded devotion
required of public employees."

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