Docket No. 340

In the Matter of Roger H. Muir

September 17, 1987

Disposition Agreement




This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Roger H. Muir (Mr.
Muir) 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 May 18,1987, the Commission initiated a preliminary inquiry
into possible violations of the conflict of interest law, G.L. c.
268A, involving Mr. Muir, Regional Director, Northeast Region,
Division of Emiployment Security (DES). The Commission concluded
its inquiry and, on July 27,1987, found reasonable cause to believe
that Mr. Muir violated G.L. c. 268A, s.6. Pursuant to G.L. c. 268B,
s.4(c), the Commission also authorized the initiation of an
adjudicatory proceeding to determine whether there had been a
violation.

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

1. Mr. Muir is the DES Regional Director, Northeast Region. He
has been in that position since August, 1983. The Northeast
Regional Office is located in Lawrence, Massachusetts. Prior to
that time, Mr. Muir served as Regional Director in the Metropolitan
Region from October, 1982 until August, 1983. As such, he is a
"state employee," as that term is defined in G.L. c. 268A, s.1(q),
and has been at all times relevant to the events contained in this
Agreement.

2. Mr. Muir's son, Roger P. Muir, became employed at the DES
office in Lynn on March 9,1978 as a junior clerk. Mr. Muir played
no role in the hiring or supervision of his son.

3. In approximately 1981, the Boston Region (in which Mr. Muir
worked) and the Metropolitan Region (in which his son worked)
merged. Mr. Muir was the deputy director of the combined region,
but had no authority over his son.

4. In October, 1982, Mr. Muir became regional director and
became the supervising authority for his son in the region. As
supervising authority, Mr. Muir signed his son's performance
evaluation for the period of June 7,1982 to June 1,1983. In August,
1983, Mr. Muir was transferred and became regional director of the
Northeast Region; his son was no longer in his chain of command.

5. On February 15,1985 a vacancy announcement was posted by DES
for an employee service representative (ESR) position in the
Lawrence office. There were three applicants for the position,
including Mr. Muir's son. The DES employment office forwarded the
applications with recommendations from the applicants' supervisors
to the manager of the Lawrence post of duty. The manager
interviewed each applicant, and then recommended Mr. Muir's son for
the vacancy, which was in effect a promotion recommendation. The
promotion recommendation was forwarded up the line to the next
supervisor, who was Mr. Muir.

6. Customarily, the Deputy Director of Field Operations reviews
a promotion package after Mr. Muir signs off on it, and then
forwards it to the Personnel Department for their actions. Mr. Muir
advised the Deputy Director of Field Operations that his (Muir's)
son had applied for an ESR position in the Lawrence office and that
he, Muir, wanted to ensure that he did the right thing because the
applicant was his son. They agreed that Mr. Muir would turn over
the responsibility for filling the ESR position to the Deputy
Regional Director. Mr. Muir's deputy did handle the review and
selection stage of the process he customarily did this for all ESR
applicants in any event and recommended

Page 302

Mr. Muir's son for the position. Mr. Muir, however, subsequently
approved the hiring by signing the promotion package. He then
forwarded it to the Deputy Director of Field Operations. After the
package was approved by the Deputy Director of Field Operations,
it was forwarded to the Personnel Director of Human Services, who
checked it for procedural correctness, and handled the paperwork
for the promotion.

7. Mr. Muir signed his son's performance evaluations for the
periods of March 16,1985 through March 16,1986 and March 15,1986
through March 15,1987. The performance evaluations signed by Mr.
Muir included a notation as to whether the employee should or
should not be eligible for a step increase. He did not inform the
Deputy Director of Field Operations that he would be doing these
evaluations.

8. Section 6 of G.L. c. 268A, except as otherwise permitted in
that section, 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 has a financial
interest The exception in s.6 was not followed in this case as
is discussed more fully below.

9. By Mr. Muir's signing his son's promotion recommendation in
March of 1985 and also by signing his son's performance evaluations
for the periods of March 16, 1985 through March 15, 1986 and March
16, 1986 through March 15,1987, he participated in particular
matters in which he knew his son had a financial interest, and
thereby violated G.L. c. 268A, s.6.

10. The Commission has no evidence to suggest that Mr. Muir was
aware that his actions violated G.L. c. 268A when he signed the
personnel evaluations and promotion package which resulted in his
son receiving pay raises.[1] Indeed, as indicated above, Mr. Muir
appears to have taken certain steps to inform his supervisor that
his son was seeking a promotion.

Thus, an argument could be made that a state employee who
discloses a s.6 conflict to his supervisor ought to be able to rely
on the supervisor's permission to participate in the promotion
process. Strict compliance with s.6 requires, however, that the
disclosure be in writing and that authorization to participate be
given by the appointing authority.[2] Such strict compliance is
necessary to insure that all due consideration is given to issues
with potential controversy and potential for abuse. In the Matter
of Hanlon, 1986 SEC 299.

Here, however, Mr. Muir made his disclosure to his immediate
supervisor and not his appointing authoriry. In addition, the
disclosure was not put into writing or filed with the Commission.
Finally, as to the 1986 and 1987 performance evaluations, no
disclosure was made.

A further argument could be made that Mr. Muir was not
personally and substantially involved in the promotion and
performance evaluations,and therefore he did not participate in
those decisions. In this view the signatures were insignificant.
He merely forwarded along the chain of command decisions which were
made by subordinates, and in which he took no part. This argument
is unpersuasive. Absent Mr. Muir's signature, neither the
promotional package nor the performance evaluations would be
finally processed, and Mr. Muir's son would not become eligible for
either the promotion or the yearly step increases. Second, based
on the facts, it appears that Mr. Muir's role regarding those
decisions was the same both before and after his disclosure: as
regional director he had and exercised approval authority as
evidenced by his signature.

Nonetheless, the Commission has given consideration to Mr.
Muir's having made a disclosure to his supervisor regarding the
1985 promotion and his efforts to distance himself from the
decision-making process when his son was involved. 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
these mitigating factors. That it has insisted on a public
resolution and a fine reflects the importance 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.
Imposing a fine also should act as a deterrent in making clear that
ultimately the primary responsibility for compliance with these
provisions rests on the public employee seeking the exemption.

11. In view of the foregoing violations of G.L. c. 268A, s.6. 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 Mr. Muir:


1. that he pay to the Commission the amount of two hundred
fifty dollars ($250) as a civil penalty for his violation of
G.L. c. 268A, s.6;


2. that so long as he is a state employee, if his duties would
otherwise require him to participate in any particular matter
in which an immediate family member has a financial interest,
he must follow the procedure set out in G.L. c. 268A, s.6.


3. that he waive all rights to contest the findings of fact,
conclusions of law and terms and conditions proposed under
this Agreement in this or any related administrative or
judicial civil proceedings in which the Commission is a party.

Page 303

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

[2] G.L. c. 268A, s.6 provides in pertinent part:

Any state employee whose duties would otherwise require him to
participate in such a particular matter shall advise the official
responsible for appointment to his position and the state ethics
commission of the nature and circumstances of the particular matter
and make full disclosure of such financial interest, and the
appointing official shall thereupon either:

1. Assign the particular matter to another employee; or

2. Assume responsibility for the particular matter; or

3. Make a written determination that the interest 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 it shall not be a violation for the
employee to participate in the particular matter. Copies of
such written determination shall be forwarded to the employee
and filed with the State Ethics Commission by the person who
made the determination. Such Copies shall be retained by the
Commission for a period of six years.