Docket No. 322

In the Matter of Abdullah Khambaty

November 16, 1987

Decision and Order


Appearing:

David A. Wilson, Esq. Counsel for Petitioner

Michael J. Faherty, Esq.
Counsel for Respondent

Commissioners:

Diver, Ch., Basile, Epps, Gargiulo

DECISION AND ORDER


I. Procedural History


The Petitioner initiated adjudicatory proceedings on February
23,1987 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 Gloucester School Committee member Abdullah
Khambaty (Respondent) violated s.19 of the conflict of interest law
by:


1. participating as a school committee member at a January
28,1986 city council meeting concerning teachers' professional
development grants which affected the financial interest of his
wife, a school teacher; and


2. participating as a school committee member in two school
committee executive sessions on April 2 and 16,1986, concerning
how teachers' professional development grants should be
distributed.

Respondent denied many of the material allegations and raised
three lines of defense. He asserted that his actions at the January
28, 1986 city council meeting were as a private citizen, not as a
school committee member. Respondent further contended that none of
the issues in which he participated involved "particular matters"
as defined in the conflict of interest law. Finally, Respondent
claimed that his actions were exempt under s.1 9(b)(3) of G.L. c.
268A,

An adjudicatory hearing was held On July 17,1987 before
Commissioner Andrea W. Gargiulo, a duly designated presiding
officer. See G.L. c 268B, s.4(e). The parties filed post-hearing
briefs and presented oral argument to the Commission on October
26,1987, In rendering this Decision and Order, the Commission has
considered the testimony, evidence and arguments of the parties.

II. Findings


A. Jurisdiction


The Respondent admits that in his capacity as an elected school
committee member, he is a municipal employee within the meaning of
G.L.c. 268A, s.1(g).

B. Findings of Fact


1. Respondent was at all times relevant to the allegations in
the Order to Show Cause a member of the Gloucester School
Committee. His wife, Lynne, is a Gloucester special needs school
teacher.

2. Respondent has been an active member and observer of
Gloucester ciry government since 1973, when he was elected to the
Gloucester Charter Commission; subsequently he was elected to the
city council in 1975,1977,1979 and 1981 (where he served on various
subcommittees, as vice chair and ultimately president) and to the
school commitee in 1983. Respondent is a well known attendee at
City Council meetings and often speaks at these meetings on various
issues.


3. Chapter 188 of the Acts of 1985, "An Act Improving the Public
Schools of the Commonwealth" (Chapter 188) established a state
funded program of professional development grants for public school
teachers. Chapter 188 provided that a city was eligible to receive
the professional development grant money if both the school
committee and the city council voted by a majority vote to accept
the provisions of Chapter 188, Section 13. The law also stated that
Chapter 188 funds were to be distributed by the local school
committee pursuant to an agreement between the school committee and
the teachers' union.


4. On October 16, 1985, the Gloucester School Committee voted
to accept the Chapter 188 professional development grant funds and
to request that the city council do the same. Respondent voted
"present."


5. On January 15, 1986 the Superintendent of Gloucester Schools,
the School Committee chairman and Respondent attended a City
Council subcommittee meeting concerning Chapter 188. At this
meeting, Respondent discussed the provisions of Chapter 188.

Page 319

6. At a January 21, 1986 City Council meeting, the Council voted
to reject acceptance of the Chapter 188 professional development
grants. The City Council subsequently criticized the school
committee for not attending this January 21st meeting.

7. On January 28,1986 the City Council voted to reconsider its
earlier vote on Chapter 188. The Superintendent of Schools and the
school committee chairman had arranged to and did attend the
January 28,1986 City Council meeting to represent the school
committee's position concerning the Chapter 188 grants.

8. Respondent had no prior arrangement with the School Committee
to attend the City Council meeting. He did not discuss the Chapter
188 issue with any city councillor before the meeting. The
Respondent's decision to attend the January 28th City Council
meeting was made at the last minute that evening with his wife.
Respondent and his wife attended the meeting together.

9. The first speaker at the January 28th City Council meeting
was the School Committee chairman. The Chairman supported the
acceptance of Chapter 188 money and presented the School
Committee's point of view, When the Respondent subsequently spoke
at the meeting concerning Chapter 188,[1] he did not identify
himself as a school committee member although the City Council
meeting minutes identify him as such.

10. Respondent attended an April 2,1986 school committee
executive session where negotiations between the School Committee
and the Gloucester Teachers Association concerning the last of four
installments of Chapter 188 moneywere discussed. Respondent
indicated that he felt teachers should engage in some professional
development activity before receiving the grant money. Respondent
made a motion that the Superintendent negotiate for that goal and
voted in favor of that motion.

11. The Gloucester Teachers Association did not want the
distribution of Chapter 188 funds contingent on the teachers
performing any additional services or professional development
activity. Respondent attended an April 16,1986 school committee
executive session and voted in favor of having "the Superintendent
continue negotiations [concerning Chapter 188 grants) under the
same guidelines given him before." April 16, 1986 Executive Session
minutes.

III. Decision


For the reasons stated below, the Commission concludes that
Respondent (1) did not violate G.L. c. 268A, s.19 by attending and
speaking at the January 28,1986 city council meeting; (2) did
violate G.L. c. 268A, s.19 by participating in the April 2 and
16,1986 School Committee executive session votes concerning Chapter
188.


A. Respondent's Actions at the January 28,1986 City Council
Meeting Were Not in His Official Capacity as a School Committee
Member

Municipal employees are prohibited from participating in matters
in which an immediate family member has a financial interest. G.L.
c. 268A, s.19(a). Participate, for purposes of the conflict of
interest law, means to


participate in agency action or in a particular matter
personally and substantially as a municipal employee, through
approval, disapproval, decision, recommendation, the rendering
of advice, investigation or otherwise. G.L. c. 268A, s.1(j).


This definition of participate "describes action carried on in the
public employee's public capacity." Buss, The Massachusetts
Conflict of Interest Statute: An Analysis, 45 B.U. Law Rev.
299,320(1965).

The threshold question in this case is whether the Respondent
participated at a City Council meeting in his official and public
capacity as a School Committee member. We are not persuaded by a
preponderance of the evidence that Respondent did participate in
his official capacity in the January 28,1986 City Council meeting.
Although the evidence on this issue is close, we believe the facts
tend to show that Respondent's appearance at the City Council
meeting was as a private citizen, not a public official. Speaking
as a private citizen, and not in one's public capacity does not
satisfy the element of participation" required under s.19 of the
conflict law.[2]


Respondent admits that he attended and spoke at a January
28,1986 City Council meeting. At the meeting, he neither identified
himself as a School Committee member nor as a private citizen,[3]
Because Respondent did not state to the City Council whether his
appearance was as a municipal official or a private citizen, we
must necessarily rely on the circumstantial evidence introduced by
the parties in order to make this determination.

Petitioner introduced evidence that, two weeks prior to the city
council meeting, Respondent had attended a city council
subcommittee meeting to discuss the very same issues he addressed
at the January 28,1986 meeting. Petitioner asserted that it was
after the city council had criticized members of the school
committee for not explaining the terms of Chapter 188 at the
January 21st City Council meeting, that Respondent attended the
January 28th City Council meeting. The evidence shows that
Respondent was known to the city council as a school committee
member; in fact, even though Respondent did not refer to himself
as a school committee member, the city council meeting minutes
identify him as such. In addition, at least one member of the city
council presumed that Respondent attended the city council meeting
in his capacity as a school committee

Page 320

member. This testimony was contradicted by that of meeting. another
city councillor who believed Respondent attended the meeting in his
private capacity.

The Commission finds credible the testimony of Repondent and his
wife that Respondent's decision to attend the Janaury 28,1986
meeting was made not in conjunction with the school committee, but
at the last minute over dinner with his wife. This evidence is
supported by the testimony of the Superintendent that he had no
arrangement to be at the January 28, 1986 meeting with Respondent,
although he did have an arrangement to attend the meeting with the
chairman of the school commitee and, further, that there was an
arrangement that the chairman would present the school committee's
position to the Council. In fact, the Chairman did present the
School Committee's position to the City Council and, only
subsequent to that, did Respondent address the Council meeting,[4]

There was uncontradicated evidence that Respondent had a long
and active history of involvement in city government. In 1973, he
was elected to the Gloucester Charter Commission and served for two
years, was subsequently elected to the city council in
1975,1977,1979 and 1981 (where he served on various subcommittees,
as vice chair and ultimately president), and was then elected to
the school committee for the first time in 1983. All four city
councillors who testified acknowledged Respondent's length of
government service and noted his frequent appearance at city
council meetings. One city councillor stated that Respondent's
opinion is often sought out by the city council.

In weighing the reasonable inferences to be drawn from
Respondent's actions before and during the city council meeting,
we are not persuaded by a preponderance of the evidence that
Respondent participated in the city council meeting in violation
of s.19 of G.L. c. 268A.[5] Respondent's history of local political
involvement and frequent attendance at City Council meetings when
he was no longer a member of the Council, sets the stage for
Respondent as an active citizen demonstrating unusual concern for
the workings of city government. Furthermore, Respondent was not
the authorized representative of the school committee sent to the
City Council meeting that was a task specifically delegated to the
School Committee chairman. In carrying out that task, the Chairman
attended the City Council meeting with the top school department
administrator, the superintendent, not with other School Committee
members. In fact, Respondent's decision to attend the Council
meeting was made at the last minute on that evening over dinner
with his wife his decision was not to carry out some official
responsibility he had as a School Committee member, but rather was
a decision which was prompted by private concerns he discussed with
his wife. The superintendent had no arrangement For knowledge that
Respondent would attend the meeting.

Respondent did not speak first at the Council meeting. The
official presentation of the School Committee came initially from
the School Committee Chairman who was the first member of the
audience to address the City Council. It was this Situation which
prompted one city councillor to state that he thought the Chairman
represented the School Committee and that Respondent, as he so
often did before, contributed as a private citizen, a citizen whose
opinion was often sought out because of his general experience and
knowledge about city government.

Respondent did not identify himself as a School Committee
member, did not assume an official role as part of the School
Committee delegation in addressing the City Council and did not
agcee to attend the meeting with the School Committee. Respondent's
attendance of this meeting with his wife and his last minute
decision to go, in light of the foregoing, distinguishes the
Respondent's participation from that of a public official acting
officially before another municipal board. This is not to say that
a public official may affirmatively interject himself into another
agency's proceedings. See, Craven v, State Ethics Commission, 390
Mass. 191 (1983). He may not. In order to sustain a violation,
however, it must be shown that the municipal employee was acting
officially. We do not find that that has been demonstrated by a
preponderance of the evidence in this case.

B. Respondent's Actions at the April 2 and 16, 1986 School
Committee Executive Sessions Satisfy the Elements of a s.19
Violation

Respondent admits that he attended the April 2 and 16,1986
School Committee executive sessions and participated in the
discussion and votes concerning Chapter 188. Respondent also admits
that his wife had a financial interest in the funds. The school
committee executive session minutes, although cryptic, were not
disputed by other evidence and indicate that Respondent
participated in voting on how the school department negotiations
for the distribution of Chapter 188 money should proceed.

The Commission finds that the only reasonable conclusion to draw
from this evidence is that Respondent participated precisely in the
matter of how the Chapter 188 money would be distributed (i.e.,
with or without "strings") by discussing and voting on whether and
how the school department should negotiate with the teachers' union
concerning the teachers' receipt of the money. See, Graham v.
McGrail, 370 Mass. 133, 138 (1976) (participation includes voting
as well as other activities). Accordingly, Respondent's
participation concerning how those funds would be distributed
necessarily affected a matter in which his wife had a financial
interest.[6]

Page 321

The practical consequence of Respondent's actions worked to his
wife's (and all teachers') disadvantage by requiring teachers to
engage in some professional development activity as a condition of
receipt of the last of four installments of Chapter 188 money (as
opposed to having no conditions imposed on the receipt of the
money). This consequence is irrelevant to a determination of
whether Respondent violated the law, Participation by a municipal
employee on a matter which is adverse to the employee's or the
employee's family's financial interest still constitutes a
violation of s.19 of the conflict of interest law. However, this
circumstance is considered by the Commission in mitigation of the
violation that occurred.

The Respondent claims that his actions as a school committee
member are exempt under the terms of s.19(b)(3) of the conflict
law. Section 19(b)(3) provides that it is not a violation of s.19
if a municipal employee participates in a particular matter in
which his wife has a financial interest

if the particular matter involves a determination of general
policy and the interest of the municipal employee or members
of his immediate family is shared with a substantial segment
of the population of the municipality.

Respondent claims that even if he did participate in a matter in
which his wife had a financial interest, he was exempt from the
conflict law because he was dealing with a matter of general
policy. The Commission does not agree with Respondent's
characterization of the facts. Even if the decision to accept
Chapter 188 money is one of "general policy," Lynne Khambaty's
interest (i.e., in receipt of the money) is not shared by a
substantial segment of Gloucester's population; rather, it is
shared by Gloucester school teachers (many of whom are not
Gloucester residents and, even if they were, would not constitute
a "substantial segment" of the population of Gloucester).

IV. Conclusion and Order

Based upon the foregoing, the Commission concludes that
Respondent did not violate G.L. c. 268A, s.19 by attending and
speaking at the January 28,1986 City Council meeting, but did
violate G.L. c. 268A, s.19 by participating in the April 2 and
16,1986 school committee executive sessions through discussion and
vote on the matter of the distribution of Chapter 188 money.

Although the Commission has the authority under G.L. c. 268B,
s.4(j) to order a payment of a civil penalty upon finding a
violation, the Commission does not impose a fine in this case.
Respondent's actions at the April 2 and 16,1986 School Committee
meetings served to require teachers to perform some professional
development activity in order to receive the last installment of
the professional development grant money.

Consequently, rather than receiving the money "without strings,"
the teachers were required, in essence, to earn it, In light of the
relatively minor violation which occurred and the fact that
Respondent's actions appeared to be adverse to his wife's financial
interests, the Commission declines to impose a fine. See, In the
Matter of Marguerite Coughlin, 1987 Ethics Commission 331 (no fine
imposed where municipal employee participated in matter in which
she had only a slight financial interest).

---------------

[1] There is contradictory testimony in evidence concerning whether
Respondent "urged" the City Council to accept the provisions
of Chapter 188 or whether he merely explained what those provisions
were. In view of the conclusions we reach in this case, we need not
resolve this factual disparity.

[2] A municipal employee's appearance in his private capacity on
behalf of another may violate s.17 of the conflict law which
prohibits a municipal employee from acting as the agent for a
private party in a matter of direct and substantial interest to the
city. We do not address whether Respondent impermissibly acted as
his wife's agent at the January 28,1986 City council meeting as the
Petitioner has made no allegation to that effect,

[3] Petitioner proposes, as a matter of policy, that the Commission
adopt a presumption that if a municipal employee, such as
Respondent, does not make it clear that he is acting as a private
citizen, it should be presumed that he is acting in his municipal
capacity. We do not regard a presumption to be necessary in this
instance. The determination of whether a municipal employee acted
in his official capacity may be made by weighing the evidence
introduced by the parties. Such evidence is not unobtainable. The
Commission has, in other contexts, stated that upon establishing
certain facts, a presumption that a specific conclusion would
follow was appropriate. see, {Commission Advisory No. 8} ("Free
Pass" Advisory) where we stated that if certain facts exist, an official
will be considered to have received an item "for or because of any
official act performed or to be performed." G.L. c.268A, s.3. Such
a conclusion is appropriate when the problems of proof are not
susceptible to resolution by weighing the evidence. This is not
such a case.

[4] The record reveals a brief exchange between the Respondent and
others at the city council meeting that if Respondent spoke, he
would be in a conflict of interest. There are two equally plausible
but conflicting inferences to be drawn from this evidence either
Respondent was fully aware of the conflict and made no effort to
comply with the law or was confident that his actions did not
constitute a problem because he had a right to attend and speak at
the meeting as did any citizen. Consequently, on the issue of how
to characterize Respondent's participation, this evidence is not
determinative.

[5] It is unnecessary to analyze the other elements of a s.19
violation, i.e., whether the issue before the city council was a
particular matter and whether Respondent's wife had a financial
interest in it, since the threshold element of a s.19 violation,
i.e., that Respondent acted as a school committee member, has not
been proven.

[6] If Respondent, in fact, contends that no "particular matter"
was at issue in the School Committee executive sessions, the
Commission finds this contention unpersuasive. The definition of
particular matter includes any "contraversy","decision" or
"determination." G.L. c. 268A, s.1(k). The school committee
discussion and vote on whether and how the superintendent should
negotiate with the teachers' union concerning the distribution of
Chapter 188 funds certainly was a determination or decision the
school committee made. Respondent further asserts that the
definition of "particular matter" excludes the enactment of general
legislation and that this exclusion is applicable here because the
City Council and School Committee's decisions to accept Chapter 188
was part ofthe process ofenacting Chapter 188. The process of
enactment of Chapter 188 ended with its enactment by the General
Court Subsequent decisions made by agencies of Gloucester either
to accept or reject the provisions of that law, and the conditions
under which an acceptance would be acted upon, are all separate
"particular matters" for purposes of the conflict of interest law.
G.L. c.268A, s.1(k).