Docket No. 346

In the Matter of Edward Rowe

October 6, 1987

Disposition Agreement



Page 308

This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Edward Rowe (Mr. Rowe)
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 October 27,1986, the Commission initiated a preliminary inquiry,
pursuant to G.L. c. 268B, s.4(a), into possible violations of the
conflict of interest law, G.L. c. 268A, involving Mr. Rowe, the
acting chief engineer of the Massachusetts Bay Transit Authority's
(MBTA) Engineering and Maintenance Department. The Commission
concluded its inquiry and on March 16,1987, found reasonable cause
to believe that Mr. Rowe violated G.L.c. 268A, s.6.

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

1. At all times material herein, Mr. Rowe was deputy chief
engineer of the MBTA's Engineering and Maintenance Department. As
such, he was a state employee, as that term is defined in G.L. c.
268A, s.1(q). (In 1986 Mr. Rowe was appointed Acting Chief Engineer
of the Engineering and Maintenance Department.)

2. As deputy chief engineer, Mr. Rowe signed all personnel
documents, including approximately two hundred personnel
authorizations per year.

3. On October 31,1983, Rowe signed a requisition seeking
approval for two temporary driver/groundmen positions. The
requisition was also signed by nine other MBTA employees, including
the MBTA General Manager, James O'Leary, who signed off as final
authority on December 15,1983.

4. On January 4,1984, O'Leary wrote to Frederick Salvucci,
Secretary, Executive Office of Transportation and Construction,
seeking certification of the critical need to fill twenty four
vacancies, including two Local 104 driver/groundmen. On January
11,1984, a copy of the approved certification signed by Salvucci
went to the MBTA Engineering and Maintenance Department.

5. On February 8, 1984, the MBTA Personnel Director signed a
personnel authorization to hire Edward Rowe, Jr. as a
driver/groundman for the Engineering and Maintenance Department
and sent the authorization to the head administrator in the
Engineering and Maintenance Department.

6. When the head administrator in the Engineering and
Maintenance Department received the personnel authorization from
the personnel director, he initialed it (certifying that the
department still needed to hire someone) and passed it on to Mr.
Rowe for his signature.

7. Mr. Rowe was aware that his son was about to be referred by
Local 104 to fill one of two Driver/Groundmen positions. He
informed his immediate supervisor of the referral and received
verbal approval to sign the personnel authorization.

8. On February 8,1984 Mr. Rowe signed the document which
authorized the hiring of his son. After Mr. Rowe signed the
document, it was signed by the Chief Engineer, the Deputy Director
and Chief of Staff for Operations, the Director of Operations, the
Director of EEO/AA, the Treasurer, the Budget Office and finally
the General Manager.

9. On February 21,1984, Edward Rowe, Jr. was hired as a
temporary driver/groundman in the MBTA Engineering and Maintenance
Department.

10. In February, 1985, nine MBTA officials including Mr. Rowe
signed the personnel document which formally made Edward Rowe,Jr.
a permanent employee of the MBTA.[1]

11. As far as the Commission is aware, the only MBTA documents
that Mr. Rowe signed for Edward Rowe, Jr. were the February 1984
temporary and February 1985 permanent personnel
authorizations.

12. 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 in particular matters in
which, to his knowledge, a member of his immediate family has a
financial interest. The exception in s.6 was not followed in this
case as is discussed more fully below.

13. The hiring of Edward Rowe, Jr. as a driver/groundman with
the MBTA was a "particular matter." When Mr. Rowe signed the
February 1984 and February 1985 personnel authorizations which
resulted in the hiring of his son, Mr. Rowe participated in that
matter. Because the position was a paid position, Edward Rowe, Jr.
had a financial interest in the job. Mr. Rowe was aware at the time
that he signed the personnel documents which hired his son that
Edward Rowe, Jr. would receive compensation for working as a
driver/groundman.

14. By signing personnel documents which resulted in first the
temporary and later the permanent hiring of his son, Mr. Rowe
participated as a state employee in a particular matter in which
his son had a financial interest, thereby violating G.L. c. 268A,
s.6.

15. The Commission has no evidence to suggest that Mr. Rowe was
aware that his actions violated G.L. c. 268A when he signed the
personnel documents which resulted in the hiring of his son.[2]
Indeed, as indicated above, Mr. Rowe appears to have taken certain
steps to inform his supervisors that his son was being hired.

Thus, an argument could be made that a state employee who
discloses a s.6 conflict to his supervisor and is told to
participate ought to be able to rely on the supervisor's
familiarity with the conflict law. Strict compliance with s.6,
however, requires that the disclosure be in writing and that
authorization to participate be given

Page 309

by the appointing authority.[3] 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. Rowe made his disclosure to and received his
authorization to participate from his immediate supervisor and not
his appointing authority. In addition, neither the disclosure nor
the authorization was put into writing or filed with the
Commission.

Nonetheless, the Commission has given consideration to Mr.
Rowe's having disclosed to and received permission to participate
from his supervisors. Accordingly, while the Commission can impose
up to a $2,000 fine for each violation of s.6, it has determined
that the small fine here properly reflects those 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.

16. 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 and
conditions agreed to by Mr. Rowe:

1. that he pay to the Commission the sum of two hundred fifty
dollars ($250) as a civil penalty for violating 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; and

3. 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 orjudicial proceeding
to which the Commission is or may be a party.



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[1] According to the collective bargaining agreement between the
MBTA and lcocal 104, employees change automatically from
"temporary" status (with union benefits) to "permanent" status
(with MBTA benefits) after 200 working days. The "automatic" change
in status, however, may be denied with sufficient cause.

[2] Ignorance of the law is no defense to a violation of G.L. c.
268A. In the Matter of C.Joseph Doyle, 1980 SEC 11,13. See also,
Scola v. Scola, 918 mass.1, 7(1945).

[3] 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.