Docket No. 386
In the Matter of Jeffrey Zager
May 1, 1990
This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Jeffrey Zager (Mr. Zager) 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, §4(j).
On November 9, 1989 the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, involving Mr. Zager, as the administrative assistant to the mayor of the City of Gloucester. The Commission concluded its inquiry and, on February 28, 1990, found reasonable cause to believe that Mr. Zager violated G.L. c. 268A, §19.
This Commission and Mr. Zager now agree to the following findings of fact and conclusions of law:
1. At all times relevant to this matter, Mr. Zager was the administrative assistant to the mayor of the City of Gloucester, and as such, a municipal employee as defined in G.L. c. 268A, §1(g).
2. As administrative assistant, Mr. Zager has been responsible for coordination and supervision of all city agencies. From January 1984 until January 1986 those responsibilities included the duties of personnel director. Those duties included responsibility for the day-to-day administration of the personnel ordinance, personnel regulations and all collective bargaining agreements, other than those entered into by or in behalf of the city’s school committee. When Mr. Zager was reappointed as administrative assistant in 1988, his duties were basically the same except that he no longer had day-to-day responsibilities for personnel matters. (The city charter has been amended creating a personnel director position.)
3. In or about May or June, 1984, the Gloucester City Treasurer requested that Mr. Zager authorize a new position of financial secretary in the treasurer’s office. Mr. Zager, the Mayor and the City Council approved this request. The Treasurer then drafted an advertisement for the position. He gave the ad to Mr. Zager. Consistent with his then responsibilities as personnel director, Mr. Zager ran the ad.
4. Mr. Zager has a sister, Maria O’Brien. At or about the time the foregoing position was advertised, Mr. Zager talked to his sister regarding the financial secretary position, telling her he thought she was qualified for it based on his reading of the job description drafted by the Treasurer.
5. Mr. Zager received only a few resumes for the financial secretary position. One of those was his sister’s, Maria O’Brien. According to Mr. Zager, he forwarded all of these resumes, including his sister’s, to the Treasurer.
6. After reviewing Ms. O’Brien’s resume, the Treasurer stated to Mr. Zager that she did not appear to have the experience he wanted. Accordingly, the Treasurer asked Mr. Zager to continue to advertise. Mr. Zager declined that request, stating that in his view Ms. O’Brien met the qualifications of the position as advertised, and that further advertisement would not result in additional qualified applicants.
7. The Treasurer interviewed Ms. O’Brien. While he formed a good impression of her as a person, and concluded that she had the potential to be trained for the- position, he concluded she did not have the experience he wanted. In turn, he communicated that concern to Mr. Zager. Mr. Zager informed the Treasurer that in his view according to the job description, O’Brien was qualified and he would be recommending to the Mayor (the final hiring/appointing authority) that she be hired for the position.
8. On July 1, 1984, the Mayor approved Ms. O’Brien’s appointment as financial secretary. Her starting date was August 6, 1984.
9. The customary starting grade and step for the financial secretary position would have been grade 6, step 1. Mr. Zager recommended that Ms. O’Brien should start at grade 6, step 2 because her salary history justified the higher step. The Mayor approved this recommendation.
10. Mr. Zager did not disclose to the Treasurer or the Mayor that Ms. O’Brien was his sister. Neither the Treasurer nor the Mayor was aware of this family relationship at the time Ms. O’Brien was hired.
11. Ms. O’Brien is one of the 110 members of AFSCME local 687. The 1989 AFSCME contract with the City of Gloucester, which was signed in April, 1989, covers Ms. O’Brien’s position.
12. As administrative assistant, Mr. Zager was involved in the negotiations between the city and the union regarding the 1989 AFSCME contract. Thus, beginning in February, 1988 and through and including April, 1989, Mr. Zager acted as one of the members of the three-person city negotiating team. While the Mayor took the lead regarding these negotiations, Mr. Zager acted as the chief negotiator when the Mayor was not present, which occurred from time to time in the process of these negotiations.
13. The 1989 AFSCME contract provided for a 5% wage increase for all city employees covered by that contract, including Ms. O’Brien.
14. G.L. c. 268A, §19 provides in relevant part that, except as permitted by §19, municipal employees are prohibited from participating in particular matters in which, to their knowledge, a member of their immediate family has a financial interest.
15. The hiring of Ms. O’Brien, the determination as to her salary, and the 1989 AFSCME contract, were “particular matters.” Mr. Zager “participated” in those matters by declining the Treasurer’s request to do additional advertisements, by recommending that his sister be hired, by recommending the salary step she would receive, and by acting in a significant way as one of the city’s negotiators regarding the 1989 AFSCME contract.
16. By participating in the foregoing particular matters with knowledge that Ms. O’Brien had a financial interest in each of those matters, Mr. Zager participated as the mayor’s administrative assistant in particular matters in which he knew his sister had a financial interest, thereby violating §19.
Based on the foregoing facts, 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. Zager:
1. that he pay to the Commission the amount of $1,500.00 for his participation in the 1984 hiring of his sister and the determination of her salary;
2. that he pay to the Commission the amount of $500.00 for his participation in the 1989 AFSCME contract negotiation; 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 or judicial proceeding to which the Commission is or may be a party.
 While Mayor Squillace’s knowledge that Ms. O’Brien was Mr. Zager’s sister is a mitigating factor regarding his participation in the contract negotiations, it is not a defense to the §19 violation. Section 19 makes clear that if a municipal employee is going to participate in a particular matter in which a member of his immediate family has a financial interest, he can do so only 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. The disclosure and the authorization must be in writing and kept as public records.” G.L. c. 268A, §25.
These disclosure and authorization requirements are not mere technicalities. They protect the public interest from potentially serious harm. The steps of the disclosure and exemption procedure -- particularly that the disclosure and authorization be in writing and filed as public records -- are designed to prevent an appointing authority from making an uninformed, illadvised or badly motivated decision. In addition, they create a clear, historical record subject to public scrutiny.