Docket No. 609

In the Matter of Ernest Nugent

Date: September 27, 2000

Disposition Agreement


The State Ethics Commission ("the Commission") and Ernest
Nugent ("Nugent") 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 September 15,1999, the Commission initiated, pursuant to
G.L. c. 26813, s.4(a), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A, by Nugent. The
Commission has concluded its inquiry and, on May 22, 2000, found
reasonable cause to believe that Nugent violated G.L. c. 268A.

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

1. Nugent is the Worthington highway superintendent, a
position to which he was appointed by the Worthington board of
selectmen in 1994. Nugent's municipal position is full-time and
salaried.

2. As highway superintendent, Nugent manages the Worthington
Highway Department ("the Highway Department"). The principal
function of the Highway Department is the maintenance of town roads
in Worthington.

3. The Highway Department uses a wood chipper to dispose of
trees and tree branches that fall on or otherwise interfere with
roads in Worthington. For several years starting in 1994, the
Highway Department rented a wood chipper from Nugent's brother
Albert Nugent ("Albert") at a cost of $150 per day. The selectmen
awarded Albert the rental contract based on his submitting the
lowest bid, and directed the Highway Department to rent the chipper
from Albert. Nugent, as highway superintendent, determined on a
day-to-day basis when the wood chipper was needed and rented it from
Albert pursuant to the board of selectmen's direction. On average,
the Highway Department rented Albert's wood chipper about thirty
days per year.

4. In 1996, the Commission's Enforcement Division, having
learned of Nugent's involvement in the rental of the wood chipper
from Albert, wrote two letters to Nugent (on July 25th, and
September 3rd) advising him of how the conflict of interest law
might apply to his situation. The July 25, 1996 letter advised
Nugent in relevant part,

In the future, if any matter comes before you which involves
the interest of your immediate family members, you should
either completely abstain from any participation in the
matter, or, if you deem it essential for you to participate,
you should first obtain [a written exemption]. Failure to
comply with the law can result in civil prosecution by the
Commission which is empowered to impose a fine of up to
$2,000 for each violation of the conflict of interest law.

The September 3, 1996 letter further advised Nugent that if he
wished to participate in a matter in which his immediate family
member had a financial interest,

you must first advise your appointing authority of the
nature and circumstances of the particular matter and
make full disclosure of the financial interests. Your
appointing authority may make a written determination
that the interest is not so substantial as to be deemed
likely to affect the integrity of the services the
municipality may expect from you. Such disclosure and
any written authorization must be filed with the town
clerk.

Page 980

5. One of Nugent's duties as Highway Superintendent each year
is to prepare and submit to the town finance committee and
selectmen an annual budget request for the Highway Department.

6. Sometime prior to 1998, Nugent decided to recommend that
the Highway Department should buy a wood chipper rather than
continue to rent. Also sometime prior to 1998, Albert expressed to
Nugent an interest in selling his wood chipper to the town.

7. On March 3, 1998, Nugent appeared before the selectmen and
finance committee, meeting jointly, and presented the Highway
Department budget request for fiscal year 1999. The budget, which
Nugent had prepared, included a request for $10,000 to purchase a
used wood chipper.

8. On March 3, 1998, the selectmen and finance committee
decided to fund the purchase of a used wood chipper, as requested by
Nugent, using funds from the Rolland North Cemetery Fund. This
funding was consented to by the cemetery commissioner, who was
present at the March 3, 1998 meeting, and required the approval of
the town meeting.

9. In May 1998, the Worthington town meeting voted to
appropriate $ 10,000 from the Rolland North Cemetery Fund to
purchase a used wood chipper.

10. Following the May 1998 town meeting, Worthington Selectman
and Chief Procurement Officer Ryan Neuhauser ("Neuhauser") took
charge of preparing an invitation to bid for the town's purchase of
a used wood chipper. At Neuhauser's request, Nugent provided
Neuhauser with input on the specifications of the wood chipper to be
included in the invitation to bid. In response to Neuhauser's
inquiry, Nugent told Neuhauser that the town should purchase a
wood chipper like the one rented from Albert and that Albert's
wood chipper worked well. Nugent further told Neuhauser, in
substance, that the invitation to bid should specify that the
wood chipper should have a six-cylinder, gasoline-powered engine and
be self-feeding, towable and able to handle logs up to twelve
inches in diameter. After Neuhauser had drafted the invitation to
bid, Nugent read it and confirmed that its specifications for the
wood chipper met the Highway Department's needs.

11. The invitation to bid was made public by Chief Procurement
Officer Neuhauser on June 3, 1998. The invitation specified, in
relevant part, that the town was seeking a wood chipper which was
"self contained, 12 [inch] self-feeding, towable with road legal
lighting ... 1987 model year or newer with 1500 hours or less on
the hour meter" and "powered by a six cylinder gasoline-fueled
engine."

12. After the invitation to bid was made public, Nugent spoke
with his brother Albert a heavy equipment dealer (Morbark of New
England) and two other individuals and informed each of the
wood chipper invitation to bid.

13. Subsequently, Albert submitted a sealed bid offering to
sell the town for $10,000 a "1989 'Eager Beaver' wood chipper with
1200 hours on the meter, 6 cylinder gas engine, 12 [inch]
self-feeding, towable with legal road lighting." The equipment
dealer also submitted a sealed bid offering to sell the town six
different wood chippers, ranging in price from $2,000 to $19,500,
none of which met the specifications of the invitation to bid. No
other bids were submitted.

14. The two sealed bids were opened at a board of selectmen's
meeting on June 30, 1998, and taken under advisement. Nugent did
not participate in the bid opening. At a board of selectmen's
meeting on July 7, 1998, Neuhauser recommended that the town
purchase the wood chipper from Albert for $10,000. Nugent did not
participate in the recommendation to accept Albert's bid. The
selectmen voted unanimously to approve the purchase of the
wood chipper from Albert.

15. Section 19 of G.L. c. 268A, except as permitted by
paragraph (b) of that section, prohibits a municipal employee from
participating as such in any particular matter in which to his
knowledge a member of his immediate family has a financial
interest.

16. As highway superintendent, Nugent was at all times here
relevant a municipal employee as that term is defined in G.L. c.
268A, s. 1 (g).

17. Nugent's brother Albert is a member of Nugent's immediate
family as defined in G.L. c. 268A, s. 1(e).

18. Worthington's decision to purchase a used wood chipper, as
described in the June 3, 1998 invitation to bid, was a particular
matter (hereinafter "the particular matter").[1]

19. Albert had a financial interest[2] in the particular
matter given that Albert had been renting his wood chipper to the
town for several years. In addition, Albert had an expressed
interest in selling his wood chipper to the town.

20. Nugent participated[3] in the particular matter as highway
superintendent by requesting that the town purchase a used
wood chipper and by recommending the purchase for up to $ 10,000 of
a used wood chipper with a 12-inch capacity, a six-cylinder
gasoline-powered engine and a self-feeding capability. In addition,
Nugent participated in the particular matter as highway
superintendent, by reviewing the invitation to bid specifications,
stating

Page 981

his opinion that the wood chipper rented from Albert worked
well, and personally seeking bids from Albert and a heavy equipment
dealer.

21. When Nugent participated in the particular matter, Nugent
knew that his brother Albert had a financial interest in the
particular matter as Nugent knew that his brother was currently
renting his wood chipper to the town. * In addition, Nugent knew
that Albert was interested in selling his wood chipper to the town.
Accordingly, Nugent participated as highway superintendent in a
particular matter in which to his knowledge a member of his
immediate family had a financial interest. In so doing, Nugent
violated s. 19.

22. As set forth above in paragraph 4, in 1996 the
Commission's Enforcement Division informed Nugent that his
participation in a matter affecting the financial interest of a
member of his immediate family would violate s. 19 and advised him
to abstain from participating in any such matter, unless he first
obtained a s. 19(b)(1) exemption. Section 19(b)(1) provides that a
municipal employee participating in a particular matter in which a
family member has to his knowledge a financial interest does not
violate s. 19 if the municipal employee first advises his
appointing authority of the nature and circumstances of the
particular matter and makes full disclosure of the financial
interest and receives in advance a written determination by the
appointing authority that the interest is not so substantial as to
be deemed likely to affect the integrity of the services the
municipality may expect from the employee.

23. At the time Nugent participated in the particular matter
as described above, Nugent's appointing authority was aware that
Albert was Nugent's brother and had been renting his wood chipper to
the town. The selectmen were thus aware that Nugent was
participating as highway superintendent in a particular matter in
which a member of his immediate family had a financial interest.
Nugent did not, however, seek and obtain a s. 19(b)(1) exemption
from the selectmen, prior to participating as highway
superintendent in the particular matter. Thus, Nugent's
participation in that matter was not exempted from s. 19.[4]

In view of the foregoing violation of G.L. c. 268A by Nugent,
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 Nugent:

(1) that Nugent pay to the Commission the sum of one thousand
dollars ($ 1,000.00) as a civil penalty for violating G.L. c.
268A, s. 19.

(2) that Nugent waive 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] "Particular matter" means 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 legislation 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. 1(k).

[2]"Financial interest" means any economic interest of a
particular individual that is not shared with a substantial segment
of the population of the municipality. See Graham v. McGrail, 3 70
Mass. 133, 345N.E.2d888(1976). This definition has embraced private
interests, no matter how small, which are direct, immediate or
reasonably foreseeable. See EC-COI-84-98. The interest can be
affected in either a positive or negative way. See ECC01-84-96.

[3] "Participate" means to 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).

[4] The formal disclosure and written determination
requirements of the s. 19(b)(1) exemption are not mere
technicalities. They protect the public interest from potentially
serious harm. As the Commission has stated, "The steps of the
disclosure and procedure ... are designed to prevent an appointing
authority from making an uninformed, ill-advised or badly motivated
decision." In re Hanlon, 1986 SEC 253, 255. Accordingly, the
Commission requires strict compliance with the provisions of s.
19(b)(1) of anyone seeking to be thereby exempted from the
prohibitions of s.19. See In re Ling, 1990 SEC 456,458-459.

Page 982


End of Decision