Docket No. 366

In the Matter of George Munyon, Jr.

January 18, 1989

Dispostion Agreement




This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and George Munyon, Jr.
(Mr. Munyon) pursuant to Section 11 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. 268B,s.4(d).

On April 6, 1987, the Commission initiated a preliminary inquiry
inio possible violations of the conflict of interest law, G.L. c.
268A, involving Mr. Munyon. The Commission concluded its inquiry,
and on May 25, 1988, found reasonable cause to believe that Mr.
Munyon violated G.L. c. 268A, s.19.

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

1. Mr. Munyon is the superintendent of the Lunenburg Highway
Department (Highway Department), a full-time paid municipal
position. Accordingly, Mr. Munyon is a municipal employee as
defined in G.L. c. 268A, s.1(g).

2. Mr. Munyon was appointed superintendent by. the Lunenburg
Board of Selectmen (Selectmen) approximately twelve years ago. As
superintendent, Mr. Munyon supervises a Highway Department staff
of two foremen and approximately six laborers.

3. Mr. Munyon has a son, Christopher Munyon (Christopher).
Christopher is, thus, a member of Mr. Munyon's immediate family as
defined in G.L c. 268A, s.1(e).

4. In early 1985, there was an opening for a laborer in the
Highway Department. The opening was not posted or otherwise
advertised. The Highway Department relied upon "word of mouth" to
inform potential candidates of the opening.

5. By July, 1985, three or four qualified candidates had applied
for the laborer's position, including Christopher. Mr. Munyon, as
superintendent, reviewed the respective qualifications of the
candidates and determined that Christopher was the best-quailfied
for the position.

6. At a meeting of the Selectmen on July 29, 1985, Mr. Munyon
recommended to the Selectmen that they appoint Christopher to fill
the laborer vacancy. Mr. Munyon told the Selectmen that Christopher
was the best-qualified person available for the position. The
Selectmen voted unanimously to hire Christopher for the position,
to be paid at an hourly rate of $6.93.

7. Shortly before Christopher's appointment, Mr. Munyon spoke
with the then chairman of the Selectmen, Ann P. Hall, and asked her
if she had any problem with Christopher applying for the laborer
position. Chairman Hall responded in the negative. Mr. Munyon then
asked Chairman Hall to pose the same question to Selectman Lance
May. Chairman Hall did as asked, and Selectman May did not object
to Christopher's being a candidate. Mr. Munyon asserts that he
also asked Selectman Walter Keeler the same question and that
Selectman Keeler did not have any problem with Christopher's
applying for the position; Selectman Keeler, however, was unable
to confirm or deny Mr. Munyon's assertion.

8. Mr. Munyon neither sought nor received any legal counsel
regarding his participation in the appointment of his son prior to
that appointment being made.

9. On or before April 8, 1987, Mr. Munyon was notified that the
Commission had authorized a preliminary inquiry into the legality
of his participation in the appointment of Christopher.

10. On July 20, 1988 Christopher resigned from his municipal
position.

11. Section 19 of G.L. c. 268A provides, in relevant part, that,
except as permitted by s.19(b), a municipal employee is prohibited
from participating, as such an employee, in a particular matter in
which, to his knowledge, a member of his immediate family has a
financial interest.

12. The selection and appointment of Christopher to a position
with the Highway Department were particular matters within the
meaning of s.19. Mr. Munyon participated, as superintendent, in
those particular matters by determining that Christopher was the
best-qualified candidate for the position and by recommending his
appointment by the Selectmen. Because the position was a paid
position, Christopher had, at the time of the appointment, a
financial
Page 391

interest in the appointment. Mr. Munyon was aware at the time that
he participated in the selection and recommendation of his son for
appointment to the position with the Highway Department that his
son would receive compensation for his services as a Highway
Department employee.

13. By participating in the selection and appointment of his son
to be a Highway Department employee, as described above, Mr.
Munyon participated, as superintendent, in particular matters in
which his son had a financial interest, thereby violating G.L. c.
268A, s.19.

14. Under G.L. c. 268A, s.19(b), a municipal official can avoid
violating s.19 if the employee advises his appointing authority of
the nature and circumstances of the particular matter in which he
would participate and the financial interest involved, and receives
in advance a written determination that the financial interest is,
not so substantial as to be deemed likely to affect the integrity
of the services which the municipality may expect from him. While
Mr. Munyon showed some sensitivity to the conflict of interest
problems created by his son's selection as a Highway Department
employee by asking the Selectmen whether they had any problem with
Christopher applying for the laborer position, his actions fell
short of what was required to secure the benefits of a s.19(b)
exemption. Neither Mr. Munyon's disclosure nor the Selectmen's
response to Mr. Munyon's inquiry were put into writing, as required
by G.L. c. 268A, s.s.19 and 24. As a result, the nature and extent
of the disclosure are not clear. Further, given the dear problem
that Mr. Munyon's conduct created under s.19 of the conflict law,
it might well have been that, had Mr. Munyon and the Selectmen
followed the proper s.19(b) procedures, the Selectmen would have
determined that Mr. Munyon's participation was unwise and,
therefore, either the Selectmen themselves or someone other than
Mr. Munyon would have handled the selection of the person to be
appointed to the laborer position. If, on the other hand, the
Selectmen bad authorized Mr. Munyon to proceed, that authorization
would have been a matter of public record. It is for these reasons
that the Commission has, as a matter of practice, insisted on
strict compliance with the written disclosure and authorization
provisions of s.19(b).

Nonetheless, the Commission has given consideration to Mr.
Munyon's having made some disclosure to his appointing authority.
Accordingly, while the Commission can impose up to a $2,000 fine
for each violation of s.19, it has determined that a relatively
small fine here properly reflects those mitigating factors.[1]

In view of the foregoing violation of G.L. c. 268A, s.19, 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 Mr. Munyon:

1. that he pay to the Commission the amount of two hundred and
fifty dollars ($250.00) as a civil penalty for his violation of
s.19; and

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

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[1] As a general, rule, barring exacerbating circumstances the
Commission considers a fine of $1,000.00 and the resignation of the
family member hired to be an appropriate remedy for a
nepotism/hiring violation. See, e.g., In the Matter of Thomas J.
Nolan, 1987 Ethics Commission 283. Given that Mr. Munyon made an
attempt, albeit inadequate, to alert the Selectmen to his
situation, the Commission considers a reduction of the fine
appropriate here.