Docket No. 555

In the Matter of Harold R. Partamian

Date: June 26, 1996

Disposition Agreement


This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Harold R.
Partamian ("Partamian") pursuant to s.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.4(j).

On May 9, 1995, the Commission initiated, pursuant to G.L. c.
268B, s.4(a), a preliminary inquiry into possible violations of the
conflict of interest law, G.L. c. 268A, by Partamian. The
Commission has concluded its inquiry and, on June 12, 1996, voted
to find reasonable cause to believe that Partamian violated G.L. c.
268A.

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

1. Partamian was the executive secretary of the state Board
of Registration in Pharmacy ("Board") from July 1987 to February
1994.[1] This was a full-time salaried position. Prior to
becoming the Board executive secretary, Partamian was a pharmacy
investigator[2] for the Board, from 1980 until July 1987. As the
Board executive secretary and as a pharmacy investigator, Partamian
was, at all times here relevant,

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a state employee as that term is defined in G.L. c. 268A, s.1(q).

2. During most of his state employment, Partamian, who is a
registered pharmacist, was privately employed on a part-time
(Saturdays) basis as a pharmacist. From 1982 to 1984, Partamian
worked at the Hill View Pharmacy in North Reading. From 1984 to
December 10, 1993, Partamian worked at a pharmacy in Woburn owned
by Insta-Care Pharmacy Service Corporation ("Insta-Care").
From this private part-time work, Partamian annually earned between
$5,000 and $8,000.

3. In 1982, Partamian requested and received an advisory
opinion (EC-COI-82-95) from the Commission concerning possible
conflicts between his work for the Board and his part-time private
employment. The Commission informed Partamian that he would be
unable to participate as a pharmacy investigator in any matter
concerning the pharmacy for which he worked or concerning any of
its geographical competitors. In 1987, when Partamian became the
Board executive secretary, he asked the Commission to update the
opinion previously issued to him. In a Commission staff letter,
dated June 19, 1987, the Legal Division of the Commission
reaffirmed EC-COI-82-95, stating "...you must continue to refrain
from participating as [the Board executive secretary] in any matter
affecting either the pharmacy which employs you on Saturdays or its
geographical competitors."

4. Partamian failed to do as he was advised by the
Commission's Legal Division. In a July 1992 disposition agreement
with the Commission, Partamian was fined $1,000 for violating G.L.
c. 268A, s.6, by, in 1986 and 1987, as a pharmacy investigator,
investigating two complaints which had been filed with the Board
against Insta-Care and, as Board executive secretary, signing a
report on behalf of the Board relating to a third investigation
concerning Insta-Care indicating that the Board had resolved that
investigation without a finding of a violation.[3]

5. Despite the 1992 disposition agreement and the 1993
"Formal Warning," Partamian continued to take actions as Board
executive secretary concerning matters affecting Insta-Care, as set
forth in the following paragraphs.

6. On July 12, 1993 and November 4, 1993, Partamian, as
Board executive secretary, issued notices of informal Board
conferences to Insta-Care.[4] The notices informed Insta-Care of
pending allegations and warned that failure to attend the scheduled
hearings could result in disciplinary action. Partamian also, as
Board executive secretary, rescheduled informal Board conferences
concerning Insta-Care from August 24, 1993 to September 14, 1993
and then to December 7, 1993.[5]

7. On November 24, 1993, Partamian, as Board executive
secretary, took part in a Board meeting concerning alleged illegal
distribution of controlled substances at an Insta-Care wholesale
pharmacy. Partamian took the minutes of the meeting and advised
the Board on procedure. Some time after the meeting had been
concluded, Partamian polled the Board members regarding the issue
of whether the Insta-Care wholesale pharmacy should be closed.[6]
The Board decided to close the Insta-Care wholesale pharmacy
pending an imminent danger hearing.

8. On November 30 and December 7, 1993, Partamian, as Board
executive secretary, took part in imminent danger hearings
concerning the above-mentioned Insta-Care wholesale pharmacy which
had been scheduled to determine whether the pharmacy should remain
closed. Partamian, as Board executive secretary, scheduled and
tape-recorded the hearings and was present at the Board's
deliberative executive sessions concerning how the matters should
be handled.[7]

9. On December 3, 1993, Partamian, in accordance with his
routine practice as Board executive secretary, answered a telephone
call, which turned out to be a complaint call concerning alleged
safety problems involving an Insta-Care pharmacy. During this
telephone conversation, Partamian gave the complainant advice as to
how to informally deal with Insta-Care concerning the alleged
problems. Partamian also advised the complainant that the
complainant could either try to resolve the matter informally with
Insta-Care or submit to the Board in writing full particulars
regarding the alleged problems. Despite the fact that the matter
involved Insta-Care, Partamian failed to tell the complainant to
send any complaint to the Board to the attention of the Board
chairman and not to himself. Partamian did not inform the Board or
the Division Director that he had received the telephone complaint
concerning Insta-Care.

10. On or about December 6, 1993, the December 3, 1993
telephone complainant mailed to the Board a written complaint
(together with supporting documents) concerning the alleged safety
violations on the part of the Insta-Care pharmacy. The complaint
letter was addressed to Partamian, as Board executive secretary.
Thereafter, after determining the contents of the letter and that
it concerned Insta-Care, Partamian did not turn the letter and the
supporting documents over to the Board or to the Division Director
and he did not advise either the Board or the Division Director
that he had received the written complaint. Nor did Partamian turn
the complaint letter and supporting documents

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over to the Division's Investigative Unit. Instead, Partamian
placed the complaint letter and the supporting documents in his
desk and subsequently failed to take any further action on the
complaint. The complaint letter and supporting documents remained
in Partamian's desk until after he left his position as Board
executive secretary in February 1994.[8]

11. As a result of Partamian's actions and omissions, the
December 3, 1993 telephone complainant's information concerning the
alleged safety violations by Insta-Care was not properly processed
until the December 6, 1993 complaint letter was found in
Partamian's desk after he left his employment with the Board in
February 1994.

12. On December 10, 1993, Partamian was laid off from his
part-time employment at Insta-Care.

13. Section 6 of G.L. c. 268A, except as otherwise provided
in that section,[9] prohibits a state employee from
participating[10] as such in a particular matter[11] in which, to
his knowledge, a business organization by which he is employed has
a financial interest.[12] None of the exemptions to s.6 is
applicable in this case. At no time did Partamian receive a s.6
exemption to participate as Board executive secretary in matters in
which Insta-Care had a financial interest.[13]

14. The informal Board conferences, Board meetings, imminent
danger hearings and complaints concerning Insta-Care described
above in paragraphs 6 through 11 of this Agreement were particular
matters within the meaning of G.L. c. 268A.

15. Partamian's part-time employer, Insta-Care, had a
financial interest known to Partamian in each of the above-
described particular matters concerning it which were before the
Board or were the subject of investigation by the Division. Each
such matter involved allegations of improper conduct by Insta-Care
in its pharmacy business in Massachusetts, which might, if true,
have led to the Board's taking action prejudicial to Insta-Care's
pharmacy business activities in the Commonwealth.

16. As described above, between June and December 1993,
Partamian, as Board executive secretary, took part in particular
matters relating to Insta-Care. Partamian's involvement in these
particular matters ranged from routine administrative actions
(e.g., tape-recording hearings) to acts entailing the exercise of
significant discretion (e.g., handling the telephone and written
complaints concerning Insta-Care).[14] Partamian's advice to the
telephone complainant on December 3, 1993 concerning how to resolve
the complaint informally, Partamian's failure to turn the December
6, 1993 complaint letter over to the Board, to the Division
Director or to the Division's Investigative Unit, and Partamian's
retaining possession of the complaint letter in his desk were each
acts of personal and substantial participation by Partamian as
Board executive secretary in particular matters in which Insta-Care
had a financial interest.

17. Thus, as Board executive secretary, Partamian
participated officially as a state employee in particular matters
in which, to his knowledge, his private employer had a financial
interest. In so doing, Partamian violated G.L. c. 268A, s.6.

In view of the foregoing violations of G.L. c. 268A by
Partamian, 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 Partamian:

(1) that Partamian pay to the Commission the sum of three
thousand two hundred and fifty dollars ($3,250.00) as a civil
penalty for violating G.L. c. 268A;[15] and

(2) that Partamian 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] Partamian was appointed executive secretary by the Board.
Under a subsequent reorganization, while Partamian was Board
executive secretary, the Board, together with other State boards of
registration, became part of the Division of Registration
("Division"). Since the re-organization, all executive
secretaries of the boards of registration within the Division are
appointed by, report to and are subject to removal by the Division
Director.

[2] Partamian's statutory position was that of "agent" of the
Board under G.L. c. 13, s.25.

[3] In addition, Partamian was fined an additional $500 in the
1992 disposition agreement for violating G.L. c. 268B, s.7 by
failing to disclose his Insta-Care income on his 1987 and 1988
statements of financial interests. Also, in a February 18, 1993
"Formal Written Warning", the Division Director reminded Partamian
of his duty as an executive secretary to report to the Division
Director any matter which might pose a conflict of interest.

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[4] According to Partamian, these conference notices were
issued at the Board's direction.

[5] According to Partamian, these hearing and conference
schedulings and reschedulings were consistent with usual Board
practice.

[6] According to Partamian, the usual procedure was for the
executive secretary to poll the Board members by telephone some
time after the meeting had adjourned.

[7] At the December 7, 1993 meeting, Partamian, in response to
an inquiry directed toward him by one of the Board members, started
to explain the procedure generally followed by the Board in a given
instance, when the Board's legal counsel, who was also present,
admonished Partamian that his answering could pose a conflict of
interest because of his employment with Insta-Care. Partamian did
not complete his answer and did not further contribute to the
meeting.

[8] According to Partamian, he did not deliberately keep the
complaint letter and supporting documents in his desk to delay any
investigation of Insta-Care or to otherwise benefit the company.

[9] Section 6 requires a state employee whose duties would
otherwise require him to participate in a particular matter in
which there is a prohibited financial interest to advise his
appointing official and the Commission in writing of the nature and
circumstances of the particular matter and make full disclosure of
the financial interest. The appointing official must then either
assign the matter to another employee, or assume responsibility for
the matter, or make a written determination (and file it with the
Commission) that the financial interest is not so substantial as to
be deemed likely to affect the integrity of the employee's services
(in which case the employee may participate in the matter).

[10] "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.1(j).

[11] "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).

[12] "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, 370
Mass. 133, 345 N.E. 2d 888 (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 EC-COI-84-96.

[13] At no time did Partamian make the disclosures required by
s.6 to the Division Director, who was, at the relevant time,
Partamian's "appointing official."

[14] While some of Partamian's actions were apparently
sufficiently routine and non-discretionary as to be ministerial,
and thus not participation for G.L. c. 268A purposes, on several
occasions Partamian's actions amounted to personal and substantial
official participation in particular matters in which Insta-Care
had a financial interest.

[15] That a $3,250 fine has been imposed in this case is
reflective of the seriousness of the violations, in and of
themselves, and of the exacerbating circumstances of Partamian's
failure to reform his conduct following his 1992 disposition
agreement with the Commission. That a higher fine has not been
imposed is due in part to the fact that Partamian resigned from his
position as Board executive secretary in lieu of facing the
prospect of a formal discharge based on essentially the same
reasons as those enumerated in this Agreement.

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End of Decision