Docket No. 469

In the Matter of Leonard Mach

June 30, 1993

Disposition Agreement



This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Leonard Mach
(Mach) pursuant to

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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 November 5, 1992, 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
Mach. The Commission has concluded its inquiry and, on April 27,
1993, found reasonable cause to believe that Mach violated G.L.
c. 268A.

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

1. Mach was, during the time relevant, the Massachusetts
Treatment Center at Bridgewater (MTCB) Acting Administrator. He
served in that position from February 1991 to February 1992. As
such, Mach was a state employee as that term is defined in G.L.
c. 268A, s. 1.

2. Mach's son, Gary Mach (Gary), became employed at MTCB as
a Mental Health Case Worker in 1987. (The Commission knows of no
evidence indicating Mach played a role in the hiring of his son.)

3. In February 1991, Mach was appointed MTCB Acting
Administrator. As such, Mach became Gary's appointing authority.

4. In October 1991, the Department of Personnel
Administration (DPA) authorized MTCB to certify two Mental Health
Case Worker positions as temporary certified civil employee
positions [1]. Gary was only a provisional civil service employee
at the time. Therefore, he was interested in obtaining one of
these appointments.

5. A Selection Committee (Committee) interviewed each
applicant and then recommended Gary and another candidate for the
appointments. In doing so, the Committee found that the other six
candidates for the position, all of whom had obtained higher
scores on the DPA exam than Gary, failed to meet the requirements
for the appointment.

6. After receiving the recommendations from the Committee,
Mach signed the Entrance Requirement Verification Forms
indicating that all the candidates, with the exception of his son
and the other candidate recommended for the appointments by the
Committee, failed to meet the entrance requirements.
Additionally, Mach also signed (as the appointing authority)
civil service forms indicating Gary and the other candidate
recommended by the Committee were selected for the Mental Health
Case Worker appointments.

7. Mach did not inform his appointing authority that he
would be signing these documents concerning his son's
appointment.

8. Section 6 of G.L. c. 268A, except as otherwise permitted
in that section, [2] provides in relevant part that a state
employee is prohibited from participating as such an employee in
a particular matter in which he knows his immediate family [3]
has a financial interest [4].

9. The documents Mach signed associated with his son's
appointment involved determinations which were particular matters
[5].

10. Because Mach signed these documents as his son's
appointing authority, he participated [6] in these particular
matters.

11. Mach knew that his son had a financial interest in
obtaining the appointment because he knew when he signed the
above forms, that his son was likely to be laid off if he did not
receive certified temporary employee status.

12. Therefore, by participating in the appointment process
as described above, Mach participated in particular matters in
which to his knowledge his son had a financial interest, thereby
violating G.L. c. 268A, s. 6 [7].

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

(1) that Mach pay to the Commission the sum of five hundred
dollars ($500) as a civil penalty for violating G.L. c.
268A, s. 6; [8] and

(2) that Mach 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.



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[1] There are three different types of employees: (1)
permanent civil service employees; (2) temporary certified civil
employees; and (3) provisional employees. A provisional employee
has less seniority than a temporary certified civil service
employee, and would be released earlier if layoffs occurred.

[2] None of the exceptions applies here.

[3] "Immediate family," the employee and his spouse, and
their parents, children, brothers and sisters. G.L. c. 268A, s.
1(e).

[4] Section 6 goes on to state that a state employee, whose
duties would otherwise require him to participate in such a
particular matter, must advise the official responsible for his
appointment (the appointing official) and the Commission in
writing of the nature and circumstances of the particular matter
and fully disclose the financial interest. Pursuant to s. 6, the
appointing official is, upon receipt of the employee's written
disclosure, required to either assign the matter to another
employee, assume responsibility for the matter himself, or make a
written determination that the financial interest in issue is not
so substantial as to be deemed likely to affect the integrity of
the services which the Commonwealth may expect from the employee,
in which case the employee is permitted to participate in the
matter. A copy of the appointing official's determination must be
filed with the Commission by the appointing official, who must
also forward a copy of the determination to the disclosing
employee.

[5] "Particular matter," 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).

[6] "Participate," 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).

[7] It could be argued that Mach's participation was
relatively ministerial in that he was only, in effect, rubber-
stamping decisions made by the Committee. In fact, however, the
DPA would not have accepted the job status changes without Mach's
signature. Therefore, his was a substantive, and not just a
reporting role. See, e.g., In re Muir, 1987 SEC 301 (state
employee who participates in son's promotion by signing off and
forwarding along the chain of command a recommendation made by
subordinates violated s. 6).

[8] While the Commission can impose up to a $2,000 fine for
each violation of s. 6, it has determined that a small fine here
properly reflects the mitigating factors. Thus: Mach appears to
have tried to distance himself from the decision-making process
when his son was involved, the Committee made the key appointment
decisions, and there is no evidence that Mach attempted to
influence the Committee's decision-making process. That it has
insisted on a public resolution and fine reflects the emphasis
the Commission places on proper compliance with s. 6's disclosure
and exemption provisions. These provisions are more than mere
technicalities. They protect the public interest from potentially
serious harm. The steps of the disclosure and exemption procedure
-- particularly that the determination be in writing and a copy
filed with the Commission -- are designed to prevent an
appointing authority from making an uninformed, ill-advised or
badly motivated decision. See In re Muir, supra at 302.