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 city 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 committee 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 money were 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 committee 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 uncontradicted 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 agree 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).

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[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 "controversy","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 of the process of enacting 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).