Docket No.: 264


IN THE MATTER OF GEORGE NAJEMY


Appearing:

Nancy R. Hayes, Esq.: Counsel for Petitioner
State Ethics Commission

Michael Angelini, Esq.: Counsel for Respondent
George Najemy

Commissioners: Diver, Ch., Brickman, Burns, Mulligan, Sweeney


Date: March 25, 1985


DECISION AND ORDER



I. PROCEDURAL HISTORY


The Petitioner initiated these adjudicatory proceedings on
August 16, 1984 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 the Respondent, George Najemy, (1) violated
s. 19 by directing the Worcester city treasurer's office to deposit
the insurance proceeds on property which he owned and (2) violated
s. 23(par. 2)(2) and s. 23 (par. 2)(3) by negotiating for and
purchasing property which was the subject of condemnation
proceedings before the Worcester Building Inspection Committee
(BIC), a committee which he represented as assistant city
solicitor.

An adjudicatory hearing was held on January 10 and 11, 1985
before Commissioner Frances Burns, a duly designated presiding
officer. See G.L. c. 268B, s. 4(c). The parties thereafter filed
post-hearing briefs and presented oral argument before the
full Commission on February 26, 1985. In rendering this decision and
order, each member of the Commission has heard and/or read the
evidence and arguments presented by the parties.


II. FINDINGS OF FACT


1. George Najemy has been employed by the City of Worcester
Law Department since 1973, and served as an assistant city
solicitor during the period at issue in this proceeding. His
appointing official is the city manager and his direct supervisor
is the city solicitor.

2. On June 14, 1983, Mr. Najemy was formally appointed by
the city manager as the law department representative on the
Worcester's BIC. Pursuant to City Executive Order No. 13, the BIC
is charged with specific responsibilities with respect to the
demolition of condemned structures under G.L. c. 139, including the
authority to decide whether or not a c. 139 hearing will be held.
As the law department representative on the BIC, Mr. Najemy's
duties included advising the BIC relative to any legal matters or
questions which arose at various stages of the condemnation and
demolition proceedings and drafting the necessary legal documents
and correspondence; checking court records for any appeals from
demolition orders made by property owners and arranging the
necessary court hearings; and litigation of the appeal for the BIC
if an appeal had in fact been filed, Mr. Najemy also attended BIC
meetings, although he was not a voting member.

3. The property at 7-9 Woodland St. (the property) was
condemned and ordered demolished at a hearing in March of 1982.
Following a series of continuances of the demolition order
and a fire, the property was again ordered demolished in June of
1983. On July 19,1983, Mr. Najemy signed off as the law department
representative on a Request to Demolish the property, a copy of
which was sent to the property owner's (Mr. Ali's) attorney.

4. The city's policy regarding insurance proceeds claimed on
fire damaged property was to retain a certain amount for the city
pending the owner's rehabilitation or demolition of the building,
and releasing the rest to the owner. The amount retained by the
city, usually $10,000, was based on the recommendation of the
BIC. Mr. Najemy had the responsibility for preparing the necessary
documents for the partial release of insurance proceeds,

5. Mr. Ali referred his attorney to Mr. Najemy, either (a)
by mentioning Mr. Najemy by name and noting Mr. Najemy's
familiarity with the insurance proceeds withholding process or
(b) by mentioning that there was a person at the law department of
Mr. Ali's ethnic and cultural background. Mr. Ali's attorney then
had discussions with Mr. Najemy during the summer of 1983
concerning the amount of insurance proceeds to be withheld on the
property and the options available to Mr. Ali to free up that
money. In his official capacity as assistant city solicitor, Mr.
Najemy acted as a liaison to the BIC in September of 1983 by
making a written request to determine the amount to be withheld.
On October 12, 1983, the required $10,000 insurance draft was
received by the law department. The city solicitor, in Mr. Najemy's
absence due to illness, forwarded the draft to the city

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treasurer with instructions to hold the draft until rehabilitation
of the property was complete.

6. Mr. Najemy began negotiating with Mr. Ali, the owner, to
purchase the property sometime in October of 1983. On November
14, 1983, Najemy wrote the vice-chairman of the BIC on private
letterhead indicating that he was negotiating to purchase the
property, and asking whether the city would release the $10,000 to
Mr. Ali if he (Najemy) put down $5,000 as security for the
rehabilitation or demolition of the property. Following the
November 16, 1983 BIC meeting, at which Mr. Najemy was not present,
the vice-chairman informed Mr. Najemy that the request was
denied.

7. Mr. Najemy purchased the property from Mr. Ali on December
12, 1983. Within the next 3 days, Mr. Ali endorsed the insurance
draft received $10,000 from Mr. Najemy, and on December 15,1983,
signed a document prepared by Mr. Najemy in which he (Ali) assigned
his rights in the $10,000 draft held by the city to Mr. Najemy. Mr.
Ali subsequently left the country.

8. Following conversations with the assistant city treasurer
on the subject, Mr. Najemy wrote to her on January 26, 1984, using
law department letterhead, giving her instructions as to the
handling of the of the draft. He advised her to deposit the $10,000
draft relating to the property into an escrow account, which by
city policy is to be an interest bearing account, so that when the
lien on the property was released a check could be written out to
the new owner." The check was deposited in such an account the next
day.


III. DECISION


For the reasons stated below, the Commission concludes that
the evidence supports the finding of a G.L. c. 268A, s. 19
violation on Mr. Najemy's part, but not a s. 23(par. 2)(2) or s.
23(par. 2)(3) violation.

A. Section 19

Section 19 prohibits a municipal employee from participating
as such an employee in a particular matter in which he has a
financial interest. That the Respondent was, and continues to be
a "municipal employee"[1] subject to Chapter 268A in view of his
position as an assistant city solicitor is not in dispute. The
Commission finds that the Respondent violated s. 19 by, in his
official capacity, advising the assistant city treasurer in
January, of 1984 to deposit a $10,000 draft representing insurance
proceeds which had previously been assigned to him.

1. Participate as a Municipal Employee in a Particular
Matter.


Participation for purposes of G.L. c. 268A, s. 19 is defined
as participation 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)
(emphasis added). A particular matter is 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 G.L. c. 268A, s. 1(k).

The Commission finds that the decision as to whether the
treasurer's office would deposit the $10,000 insurance draft into
an escrow account constitutes a particular matter. Both the city
treasurer and the assistant city treasurer testified that the
treasurer's office followed instructions from the law department
concerning the disposition of such drafts. Inasmuch as the
origin instructions as to this particular draft were to hold the
draft pending rehabilitation, the $10,000 draft was deposited only
after receiving the Respondent's letter of instructions. The
Commission concludes that the Respondent's personal and
substantial participation in the particular matter, by deciding
that the draft should be deposited and subsequently advising the
assistant city treasurer to this effect, was established by
a preponderance of the evidence.

The Respondent contends that his role in instructing the
treasurer's office to deposit the draft was a nondiscretionary
act and therefore did not constitute participation for s. 19
purposes. The evidence did establish that the city manager's
written policy dated March 14, 1983 provided that checks
representing insurance proceeds withheld by the city were to be
delivered to the City Treasurer to be held in an interest bearing
escrow account Yet despite the fact that the Respondent may have
been acting in accordance with city policy, his letter dated
January 26, 1984 to the assistant city treasurer precipitating the
deposit of the insurance draft nonetheless constitutes
"participation" under 19. For purposes of s. 19, "participation"
is not limited to discretionary and/or final decisions. It is
enough that he interjected himself personally into the making of
a decision by a state agency whether his duties required it or not,
and that participation is deemed substantial. See, e.g., EC-COI

Page 225

82-143. The Commission finds that the Respondent substantially
participated in the treasurer's office decision to deposit the
draft because (1) the treasurer's office followed law department
instructions in that regard and (2) until the Respondent's letter
of January 29, 1984, the draft was not deposited

2. Financial Interest

The Commission finds that the Respondent's financial
interest in the disposition of the $10,000 draft was established
by the evidence. As long as a financial interest is "direct and
immediate, or at least reasonably foreseeable," s. 19(a)
applies.

EC-COI-84-98. The Respondent himself testified that he had been
assigned the rights by Mr. Ali to the $10,000 insurance proceeds
the draft represented, and that he would receive the $10,000
plus interest once the property was rehabilitated. These facts
sufficiently identify the Respondent's financial interest for s.
19 purposes. See Commonwealth v. Cola, 18 Mass. App. 598 (1984).
The fact that the city also had an interest in the draft is
irrelevant.

3. Disclosure and Exemption

The Commission finds that the Respondent's disclosure to the
vice-chairman of BIC that he was negotiating to purchase the
property does not qualify as the disclosure required by G.L. c.
268A, s. 19(b). That disclosure was made in the Respondent's self
interest, in an attempt to obtain a reduction in the amount of
insurance proceeds to be withheld, and was made to an individual
who had no authority to require the Respondent to abstain from
participation. See Buss, The Massachusetts Conflict of Interest
Statute: An Analysis, 45 B.U.L Rev. 299, 362 (1965) [disclosure
to the wrong person, and any resulting exemption under s. 6 [state
equivalent to s. 19] is of no force or effect]. The exemption
procedure outlined in G.L. c. 268A, s. 19(b) requires the full
disclosure of one's financial interest to one's appointing
official, and that official's advance written determination that
the interest is not so substantial as to be deemed likely to
affect the integrity of one's municipal services. Since giving
such advice to the city treasurer's office was part of the
Respondent's official duties, he should have disclosed his
financial interest to the city manager and/or the city solicitor,
either of whom could then have determined the proper course to
take. The record reflects the Respondent's failure to make such a
disclosure and in fact evidences the Respondent's intent to conceal
his identity as the present owner of the property: in his reference
to the "new owner" instead of himself in his January 26,1984 letter
to the assistant city treasurer.

B. Section 23(par. 2)(2)

Section 23(par. 2)(2) prohibits a municipal employee from
using or attempting to use his official position to secure
unwarranted privileges or exemptions for himself or others. The
Commission has held that this section requires public employees to
refrain from engaging in private business with individuals who have
pending matters subject to the public employee's official
authority due to the exploitability inherent in such situations.
See, e.g. EC-COI-84-61; 83-156; 82-124; 82-64.

However, the evidence in this case does not sufficiently
support the existence of a public relationship between Mr. Najemy
and Mr. Ali at a time when the relationship could have been
exploited to Mr. Najemy's personal benefit. It may be true that
Mr. Najemy had an official relationship with Mr. Ali during the
summer of 1983 concerning the city's process of withholding
insurance proceeds. However, the Commission is not persuaded Oat
such a relationship extended beyond early September, the date of
Mr. Najemy's official correspondence to determine the amount of
Mr. Ali's proceeds to be withheld. By all accounts, purchase
negotiations concerning the property did not commence until a
month later (October, 1983).

This is not to say that a s. 23(72)(2) inherent
exploitability violation necessarily requires the public
relationship and private business dealings to be simultaneous.
Where there is evidence that an employee has capitalized on the
public relationship arising from his official dealings For a
private party has been pressured to engage in private business
with an employee in order to maintain goodwill in the public
relationship, a s. 23(par. 2)(2) violation may be found regardless
of a timing gap. The evidence presented by the parties did not
support such a finding in this case

C. Section 23(par. 2)(3)

The Commission also finds that the Petitioner failed to
established a violation of s. 23(par. 2)(3) by a preponderance of
the evidence. A s. 23(par. 2)(3) violation requires a showing that
the Respondent, as a municipal employee, gave a reasonable
impression by his conduct that any person can improperly influence
or unduly enjoy his favor in the performance of his official
duties. The Commission finds that by the time the Respondent
entered into negotiations with Mr. Ali to purchase the property,
the bulk of BIC involvement with the property had already occurred.
The Respondent's more significant roles in the process - e.g.
giving the BIC legal advice pertaining to the condemnation and
demolition of the property and signing off on the Request to
Demolish the property - had already been accomplished with respect
to this property. Thus, there would be no opportunity for the
Respondent's official acts to be influenced based on his on-going
negotiations to purchase the property. Similarly, the evidence on record does not
demonstrate that the Respondent's officials acts pre-dating the
beginning of negotiations were conducted in. such a way as to
foster the development of such negotiations. In summary, the
Commission concludes that the overlap of public and private roles
in this instance does not rise to the level of a s. 23(par. 2)(3)
"appearance of a conflicts violation. Compare, In the Matter of
John J. Rosario, 1984 Ethics Commission 205; In the Matter of Louis
Logan, 1981 Ethics Commission 40.


IV. ORDER


On the basis of the foregoing, the Commission concludes that
Mr. George Najemy violated G.L c. 268A, s. 19. Pursuant to its
authority under G.L. c. 268B, s. 4(d), the Commission hereby orders
Mr. Najemy to:

Pay $500.00 (five hundred dollars) to the Commission as a
civil penalty for participating as a municipal employee of the City
of Worcester in a particular matter in which he had a financial
interest.

The Commission orders Mr. Najemy to pay this penalty of
$500.00 (five hundred dollars) to the Commission within thirty days
of the receipt of this Decision and Order.
_______________

[1] "Municipal employee" is defined, in relevant part, as a
person performing services for a municipal agency, whether by
election, appointment, contract of hire or engagement, whether
serving with or without compensation, on a full, regular, part-
time, intermittent or consultant basis. G.L. c. 268A, s. 1(g).
Municipal agency is defined as "any department or office of a
city or town government and any council, division, board, bureau,
commission, institution, tribunal or other instrumentality thereof
or thereunder." G.L c. 268A, s. 1(f).

End Of Decision