Docket No. 585

In the Matter of Hugh K. Hubbard

Date: May 3, 1999



DISPOSITION AGREEMENT


The State Ethics Commission ("Commission") and Hugh K.
Hubbard ("Hubbard") enter into this Disposition Agreement
("Agreement") pursuant to Section 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.40).

On July 22,1998, 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 Hubbard. The Commission has concluded its inquiry and, on
April 21, 1999, by a majority vote, found reasonable cause to
believe that Hubbard violated G.L. c. 268A.

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

1. Hubbard was, during the time relevant, a member of the
Belchertown Water District Commission ("BWDC"). As such, he was a
municipal employee as that term is defined in G.L. c. 268A, s. I
(g). Hubbard has served on the BWDC since 1988.

2. The BWDC is an elected, three member board which
oversees the operation of the Belchertown Water District
("District"). The BWDC meets monthly to review and approve bills
and to authorize significant expenditures.

3. The commissioners sign the pay warrants. A minimum of
two commissioners must sign a warrant before it can be paid.

4. In September 1994, the BWD commissioners appointed
Hubbard's wife, Carol Hubbard ("Carol"), clerk treasurer. Carol
receives an annual salary of approximately $10,000.[1/]

5. Carol is supervised by the BWD commissioners including
her husband, Hubbard. [2/]

6. Carol is paid monthly. The BWD commissioners,
including Hubbard, approve the weekly warrant with her monthly
salary on it.

7. The number of hours Carol works per week varies with
the time of year and the amount of work. During the annual meeting
and any period of heavy BWD construction activity, it may take her
up to 25 hours per week to prepare the invoices, warrants, and
payments. During slower times, she may only need three hours per
week to get all of her work done. No one other than the BWD
commissioners certifies the number of hours Carol works each month.
By approving the weekly warrant with her monthly salary on it, the
BWD commissioners, in effect, certify that she has satisfactorily
performed her duties.[3/]

7. During the period of 1994 through 1998, Hubbard as a
BWD Commissioner approved weekly warrants authorizing his wife to
receive a total of $45,000 in salary payments.

8. Except as otherwise permitted in that section,[4/]
G.L. c 268A, s. 19 in relevant part prohibits a municipal employee
from participating as such in a particular matter in which to his
knowledge he or an immediate family member has a financial
interest.

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9. The decisions by the BWDC to approve the pay warrants
were particular matters.[5/]

10. Because Hubbard was substantially and personally
involved in making the foregoing decisions, he participated[6/] in
those particular matters.[7/]

11. Each such decision involved a Hubbard immediate
family member, Hubbard's wife. Hubbard's wife had a financial
interest in those particular matters. Hubbard was, of course, aware
of her financial interest in these decisions at the time he so
participated.

12. Therefore, by participating in the payment decisions
as described above. Hubbard repeatedly participated in particular
matters as a BWDC member in which to his knowledge his wife had a
financial interest, thereby violating s. 19.

13. Hubbard did not realize that signing the pay warrants
certifying the hours worked and authorizing payment of his wife's
salary violated L. 268A.[8/]

In view of the foregoing violations of G.L. c. 268A by
Hubbard, the Commission has determined that the public interest
would be served by the disposition of this matter without further
enforcement proceedings.[9/] In disposing of this matter by this
disposition agreement, Hubbard waives 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/] Town meeting votes on Carol's salary: it has ranged
between $9,000 to $10,200.

[2/] The BWD auditor also conducts an annual audit to
determine if Carol is performing all of her responsibilities.

[3/] See General Laws. c. 41. s.56 which provides: "The
selectmen and all boards, committees, heads of departments and
officers authorized to expend money shall approve and transmit to
the town accountant as often as each month all bills, drafts.
orders and pay rolls chargeable to the respective appropriations of
which they have the expenditure. Such approval shall be given only
after an examination to determine that the charges are correct and
that the goods, materials or services charged for were ordered and
that such goods and materials were delivered and that the services
were actually rendered to or for the town as the case may be..."

[4/] None of the exceptions applies here.

[5/] "Particular matter," 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 legislator 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. I (k).

[6/] "Participate," 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.10).

[7/] General Laws, c. 4 1, s.56 makes the board approval
significant.

[8/] Ignorance of the law is no defense to a violation of G.L.
c. 268A. In re Doyle, 1980 SEC 1], 13. See also, Scola v. Scola,
318 Mass. 1, 7 (1945)

[9/] The Commission chose not to impose a fine because it
believes there is a wide-spread impression that it is permissible
for a public employee to approve routine payroll warrants for
family members. This impression is incorrect, although the
existence of the misapprehension is somewhat mitigating. Payroll
warrants, even those that are routine in nature (i.e., a standard
set amount) are still particular matters in which the payee (the
immediate family member) has a financial interest. Moreover, the
Commission wants to emphasize that it does not consider a public
employee's authorizing such warrants under these circumstances to
be unimportant, however, routine it maybe. See ECCOI-98-5, and in
particular, G.L. c. 41. s.56 cited therein which requires board
members to certify that services have been performed and should be
paid for. This certification was particularly important in
Hubbard's situation where there was no department head's approval
other than the board's (although as indicated in EC-COI-98-5, a
board's certification pursuant to c. 41, s.56 is significant even
if it comes after a department head's approval.).

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End of Decision