Docket No. 360

In the Matter of Paul Nowicki

August 31, 1988

Disposition Agreement


This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Paul Nowicki (Mr.
Nowicki) 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(j)

On December 9,1987, the Commission initiated a preliminary
inquiry into possible violations of the conflict of interest law,
G.L. c. 268A, involving Mr. Nowickl, the Collector/Treasurer of the
Town of Adams. The Commission concluded its inquiry, and on April
13, 1988, found reasonable cause to believe that Mr. Nowicki
violated G.L. c. 268A, s.19.

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

1. At all times relevant to this matter, Mr, Nowicki was the
elected Collector/Treasurer of the Town of Adams, and, accordingly,
a municipal employee as defined in G.L. c. 268A, s.1(g).

2. John Nowicki is Mr. Nowicki's brother and thus a member of
Mr. Nowicki's immediate family as that term is defined by G.L. c.
268A, s.1(e).

3. In August of 1986, Mr. Nowicki hired his brother, John, as
Deputy Tax Collector for the Town of Adams. The position entitled
John Nowicki to collect statutory fees for his services in
collecting delinquent taxes.

4. General Laws c. 268A, s.19 provides in relevant part that,
except as permitted by s.19, 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.[1]

5. By hiring his brother for the position of Deputy Tax
Collector in the Town of Adams, Mr. Nowicki participated as the
Collector/Treasurer of the Town of Adams in a particular matter in
which his brother had a financial interest, thereby violating s.19.

6. On or about August 25,1987, Mr. Nowicki attended an annual
meeting of Massachusetts Collectors/Treasurers atwhich he attended
a seminar on the conflict of interest law, including a discussion
of nepotism.

7. Following this meeting, Mr. Nowicti asked for and received
his brother's resignation from the position of Deputy Collector.

8. Subsequently, Mr. Nowicki reported the foregoing s.19
violation to the State Ethics Commission. The Commission was not
aware of this violation from any other source.

9. Mr. Nowicki has stated, and the Commission has no evidence
to the contrary, that he was unaware of the prohibitions of G.L.
c. 268A, s.19 at the time he hired his brother.[2]

Page 366

10. Mr. Nowicki asserts in his defense that a number of town
and state officials knew that he was hiring his brother and did not
raise any objections. In support, he points out that the deputy tax
collector position is a bonded position, and the bond application
(which identified the person to be bonded as John Nowicki) had to
be, and was, approved by the Town Administrator, signed by the Town
Clerk and approved by the Commissioner of the Department of Revenue
(DOR).

Assuming those officials were aware that Mr. Nowicki was
appointing his brother,[3] their awareness is not a defense to Mr.
Nowicki's s.19 violation. See, e.g., In the Matter of Edward Rowe,
Jr., 1987 Ethics Commission 307.[4]

Based on the foregoing ficts, 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 agreed to by Paul Nowicki:

1. that he pay to the Commission the amount of five hundred
dollars ($500.00) 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] None of the s.19 exceptions applies to this case.

[2] Ignorance of the law is no defense to a violation of G.L c.
268A In the Matter of Joseph C. Doyle, 1980 Ethics Commission 11,13
See also, Scola v. Scola, 318 Mass. 1,7(1945).

[3] While the local official, probably understood from the bond or
in other ways that Mr. Nowicki was appointing his brother, it is
doubtful that DOR officials made that connection at the time Mr.
Nowicki appointed his brother. Indeed, when DOR officials did make
the connection in 1987, they notified Mr. Nowicki of the conflict
issue.

[4] In certain narrowly defined circumstances, a public official's
awareness and approval of a municipal employee hiring a family
member can prevent a s.19(a) violation. Thus, s.19(b) (1) provides:

It shall not be a violation of this section (1) if the
municipal employee first advises the official responsible for
appointment to his position of the nature and circumstances
of the particular matter and makes full disclosure of such
financial interest, and receives in advance a written
determination made by that official that the interest is not
so substantial as to be deemed likely to affect the integrity
of the services which the municipality may expect from the
employee...

This exception is not available to elected officials who, by
definition, do not have an "appointing official" within the meaning
of the law.

[5] As a general rule, the Commission considers a fine of $1,000.00
or more to be appropriate for a nepotism/hiring violation See,
e.g., In the Matter of Thomas J. Nolan, 1987 Ethics Commission 283.
Given the mitigating factor of the Commission being made aware of
the violation only through Mr. Nowicki, the Commission considers
a reduction of the fine appropriate here.