Docket No. 394
In the Matter of John Larkin, Jr.

September 13, 1990

DISPOSITION AGREEMENT

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and John Larkin, Jr. (Mr. Larkin) pursuant to Section 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. 2688, §4(j).

On January 11, 1989, the Commission initiated, pursuant to G.L. c. 2688, §4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Mr. Larkin while he was the District Supervisor of the Red Line for the Massachusetts Bay Transportation Authority (MBTA).  The Commission has concluded its inquiry and, on April 18, 1990, by a majority vote found reasonable cause to believe that Mr. Larkin violated G.L. c. 268A, §6.

The Commission and Mr. Larkin now agree to the following findings of fact and conclusions of law:

1.  At all times here relevant, Mr. Larkin was an employee of the MBTA.  As an MBTA employee, Mr. Larkin is a state employee as defined in §1(q) of G.L. c. 268A.

2.  Mr. Larkin has a daughter, Jennifer M. Larkin (Jennifer), who at all times here relevant was employed by the MBTA.  Jennifer is a member of Mr. Larkin’s immediate family as defined in G.L. c. 268A, §1(e).  Jennifer began work with the MBTA as a part­ time Blue Line guard in May, 1986.  Jennifer subsequently became a full-time Blue Line guard and, in March, 1987, transferred from the Blue Line to the Red Line.

3.  In 1987, Mr. Larkin was the District Supervisor of the Red Line, a position he had held since 1985. Mr. Larkin was appointed to this position by the MBTA General Manager.[i]  As Red Line District Supervisor, Mr. Larkin was responsible for the supervision of all Red Line employees and was Jennifer’s immediate supervisor.[ii]

4.  In March, 1987, acting in response to an educational seminar held by the Commission, Mr. Larkin submitted to his immediate superior, MBTA Rail Lines Superintendent John Killgoar (Killgoar) a memorandum advising Killgoar that Jennifer was transferring to the Red Line and asking Killgoar to “take charge of” the matter and to forward a copy of the memorandum to the “proper officials.”   The memorandum stated that it was being made in compliance with the conflict of interest law, G.L. c. 268A.  Killgoar, in turn, forwarded a copy of Mr. Larkin’s memorandum to MBTA Chief Transportation Officer Paul J. Lennon (Lennon) along with a cover memorandum in which Killgoar stated that “any discipline and/or promotions (not mandated by seniority) which involve [Jennifer] will be performed at the superintendent’s level.”[iii]  Mr. Larkin’s March 1987 memorandum to Killgoar was the only written disclosure made by Mr. Larkin concerning Jennifer’s MBTA employment.  During the period here relevant, Mr. Larkin personally made no disclosures concerning Jennifer’s MBTA employment to anyone other than Killgoar.  Other than Killgoar’s memorandum to Lennon, the MBTA management took no action in response to Mr. Larkin’s March, 1987 written disclosure.

5.  On May 29, 1987, Jennifer was promoted to the position of full-time motorman on the Red Line.  Jennifer’s promotion to the position of full-time motorman and her prior promotion to full-time guard occurred on the basis of seniority pursuant to the provisions of the applicable collective bargaining agreement.

6.  Candidates seeking promotion to the positions of spare inspector and chief inspector are required to take and pass qualifying examinations which test their knowledge of the MBTA rapid transit line system and MBTA procedures.  Those candidates who pass the examination are then evaluated and scored by their supervisor.  The candidates receive promotions based upon their combined scores on the examinations and the evaluations.  On June 15, 1987, Jennifer took and passed the qualifying examination for the position of spare inspector.  Mr. Larkin played no role in the administration or grading of the qualifying examination.

7.  It was one of Mr. Larkin’s responsibilities as Red Line District Supervisor to do the evaluations of the job performance of Red Line employees who were candidates for promotion to the positions of spare inspector and chief inspector.  When Mr. Larkin learned that Jennifer was going to take the June, 1987 examination for promotion to spare inspector, he spoke with Killgoar regarding how Jennifer was to be evaluated in connection with her candidacy for promotion.  Killgoar told Mr. Larkin that he (Killgoar) would evaluate Jennifer and that Mr. Larkin should evaluate the other Red Line candidates.  Mr. Larkin’s participation in the June, 1987 spare inspector candidate evaluation process was not disclosed in advance of that participation to Killgoar’s superiors in the MBTA management hierarchy.

8.  In late June, 1987, Mr. Larkin did evaluations of all Red Line candidates for promotion to spare inspector, with the exception of Jennifer.  On June 30, 1987, Mr. Larkin signed and dated Spare Inspector Rating Sheets scoring thirteen Red Line candidates.   At the time Mr. Larkin evaluated the candidates, he did not know their scores on the qualifying examination, but only that they had received passing scores.  On July 1, 1987, Killgoar’s assistant, Deputy Superintendent of Rail Lines Robert Prince (Prince), who also did not know the candidates’ examination scores, evaluated Jennifer and completed a Spare Inspector Rating Sheet for her, which was signed and dated by Killgoar.  At the time Prince evaluated Jennifer, Prince had in his possession the rating sheets Mr. Larkin had scored for the other candidates.  After Mr. Larkin and Prince evaluated and scored the job performance of the candidates, other MBTA personnel added the candidates’ examination scores to the rating sheets and combined them with the supervisors’ job performance evaluation scores to yield total scores.  On the basis of the candidates’ combined scores on the qualifying examination and the performance evaluation, Jennifer was ranked seventh highest of the thirteen Red Line candidates for promotion to spare inspector.  Jennifer was promoted to the position of spare inspector on July 19, 1987.

9.  In August, 1987, Jennifer took and passed the qualifying examination for promotion to the position of chief inspector.  Mr. Larkin did not participate in any way in the administration or grading of the chief inspector qualifying examination.

10.  In August, 1987, Mr. Larkin, with the knowledge and approval of Killgoar, evaluated all of the Red Line candidates for promotion to chief inspector, with the exception of Jennifer. Mr. Larkin’s participation in the August, 1987 chief inspector candidate evaluation process was not disclosed in advance of that participation to Killgoar’s superiors in the MBTA management hierarchy.  On August 17,

1987, Mr. Larkin completed, signed and dated Chief Inspector Rating Sheets scoring eleven Red Line candidates.  At the time Mr. Larkin evaluated the candidates, he did not know their scores on the qualifying examination, but only that they had received passing scores.  On August 18, 1987, Prince, also without knowing the candidates’ examination scores, evaluated Jennifer and completed, signed and dated a Chief Inspector Rating Sheet scoring her.  At the time Prince evaluated Jennifer, Prince had in his possession the rating sheets Mr. Larkin had scored for the other candidates.  After Mr. Larkin and Prince evaluated and scored the job performance of the candidates, other MBTA personnel added the candidates’ qualifying examination scores to the rating sheets and combined them with the supervisors’ performance evaluation

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scores to yield total scores.  On the basis of the candidates’ combined scores on the qualifying examination and the performance evaluation, Jennifer was ranked seventh highest of the eleven candidates who qualified for promotion to chief inspector.

11.  There is no evidence that Mr. Larkin at any time discussed the evaluation of Jennifer with Prince, or that Mr. Larkin made any attempt to influence Prince’s evaluation of Jennifer.  Mr. Larkin did not participate in any way in Jennifer’s performance evaluations in June and August, 1987.

12.  There is no evidence that, at the time of her promotion to spare inspector and chief inspector, Jennifer did not meet the minimum established requirements for promotion to the positions.

13.  There is no evidence that Mr. Larkin’s participation in the spare inspector and chief inspector promotion process by evaluating Jennifer’s Red Line competitors actually benefitted Jennifer or diminished the fairness of the process.  There is no evidence that Jennifer was ever promoted out of order, i.e., ahead of anyone who received a higher combined rating sheet score than she.

14.  Section 6 of G.L. c. 268A prohibits a state employee, except as permitted by that section, from participating in any particular matter in which to his knowledge a member of his immediate family has a financial interest.  Section 6 requires that a state employee, whose duties would otherwise require him to participate in such a particular matter, advise the official responsible for his appointment (the appointing official) and the Commission in writing of the nature and circumstances of the particular matter and fully disclose the financial interest.  Pursuant to section 6, the appointing official is, upon receipt of the employee’s written disclosure, required to either assign the matter to another employee or assume responsibility for the matter himself or make a written determination that the financial interest in issue is not so substantial as to be deemed likely to affect the integrity of the services which the commonwealth may expect from the employee, in which case the employee is permitted to participate in the matter.  A copy of the appointing official’s determination must be filed with the Commission by the appointing official, who must also forward a copy of the determination to the disclosing employee.

15.  Jennifer is a member of Larkin’s immediate family and had a financial interest, known to Mr. Larkin, in the particular matters of the evaluations of the Red Line employees who were competing with her for promotion to the positions of spare inspector and chief inspector.  Accordingly, by evaluating Jennifer’s competitors for promotion in June and August, 1987, Mr. Larkin participated in particular matters in which a member of his immediate family had a financial interest.  Mr. Larkin’s March, 1987 memorandum to Killgoar was not a disclosure to Mr. Larkin’s appointing official of the nature and circumstances of the particular matter of the evaluations of Jennifer’s competitors for promotion, nor of Jennifer’s financial interest in those particular matters, meeting the requirements of section 6, in that it was not made to Mr. Larkin’s appointing official and did not disclose the actual particular matters in which Mr. Larkin was to participate.[iv]  In addition, a copy of the disclosure was not filed with the Commission by Mr. Larkin as required by section 6.  Furthermore, Mr. Larkin at no time received a written determination from his appointing official permitting him to participate in the evaluations of Jennifer’s competitors.  Therefore, Mr. Larkin violated section 6 of G.L. c. 268A by evaluating Jennifer’s competitors for promotion in July and August, 1987.

16.  The evidence indicates that Mr. Larkin did not intentionally violate the conflict of interest law.[v]

Although the Commission is empowered, pursuant to G.L. c. 268B, §4(j)(3), to impose a fine of up to $2,000 for each violation of the conflict of interest law, the Commission has decided not to impose a fine against Mr. Larkin in consideration of the following mitigating circumstances: (1) Mr. Larkin appears to have made a good faith, albeit ineffective, effort to comply with G.L. c. 268A, §6 by making the March, 1987 written disclosure to his immediate superior; (2) Mr. Larkin apparently did not participate in Jennifer’s 1987 evaluations; (3) Mr. Larkin participated in the 1987 evaluations of Jennifer’s competitors with the knowledge, and pursuant to the instructions, of his immediate superior; (4) Jennifer’s financial interest in the evaluations of her competitors was indirect and may not have been fully appreciated by Mr. Larkin; (5) there is no evidence that Mr. Larkin’s participation in the promotion process by evaluating Jennifer’s competitors actually benefitted Jennifer or diminished the fairness of the process; and (6) Mr. Larkin cooperated fully with the Commission’s investigation of this matter.  That the Commission has, however, insisted on a public resolution of this matter reflects the importance that the Commission places on proper compliance with the disclosure and exemption provisions of G.L. c. 268A, §6.  As the Commission stated in In the Matter or John J. Hanlon, 1986 SEC 253, 255,

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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. ...the primary responsibility for compliance with these provisions rests on the public employee seeking the exemption.

In view of the foregoing violations of G.L. c. 268A, §6, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings and without the imposition of a fine on the basis of the following terms and conditions agreed to by Mr. Larkin:

1.  that Mr. Larkin will act in conformance with the requirements of G.L. c. 268A in his future conduct as a state employee; and

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



[i] Mr. Larkin’s appointment as Red Line District Supervisor was “initiated” by the MBTA Superintendent of Rail Lines on March 23, 1985 and “approved” by four MBTA officers, including the Chief Transportation Officer, the Deputy Director and Chief of Staff, and the Director of Operations, before being signed by .the MBTA’s General Manager on April 16, 1985.
[ii] Mr. Larkin resigned as Red Line District Supervisor in February, 1989 and returned to his former position as a rapid transit line instructor. In his current position, Mr. Larkin does not supervise Jennifer.
[iii] Pursuant to his memorandum to Lennon, Killgoar assumed responsibility for Jennifer’s discipline and promotion. Mr. Larkin, however, remained Jennifer’s supervisor for routine purposes.
[iv] Although Killgoar was Mr. Larkin’s immediate supervisor, he was not Mr. Larkin’s appointing official within the meaning of G.L. c. 268A, §6. That appointing official to whom Mr. Larkin was required to make disclosure under §6 was the MBTA’s General Manager, who had final authority over Mr. Larkin’s appointment as District Supervisor of the Red Line.
[v] Ignorance of the law is not a defense to a violation of the conflict of interest law, G.L. c. 268A. In the Matter of C. Joseph Doyle, 1980 SEC 11, 13; see also, Scola v. Scola, 318 Mass. 1, 7 (1945).