Docket No. 348

In the Matter of Paul X. Tivnan

January 11, 2988

Disposition Agreement


This Disposition Agreement (Agreement) is entered into between
the State Ethics Commission (Commission) and Paul X. Tivnan (Mr.
Tivnan) 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 April 27, 1987, the Commission initiated a preliminary
inquiry into possible violations of the conflict of interest law,
G.L. c. 268A, involving Mr. Tivnan, a County Commissioner in
Worcester County. The Commission concluded its inquiry and, on May
18, 1987, found reasonable cause to believe that Mr. Tivnan
violated G.L. c. 268A, s.13.

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

1. Mr. Tivnan is an elected Worcester County Commissioner and
was a County Commissioner at all times relevant to this proceeding.
As a County Commissioner, Mr. Tivnan is a county employee as that
term is defined in G.L. c. 268A, s.1(d).

2. Mr. Tivnan's son, Michael Tivnan, and Mr. Tivnan's daughter,
Maureen Anderson, are members of Mr. Tivnan's immediate family as
defined in G.L. c. 268A, s.1(e). Michael Tivnan and Maureen
Anderson are employees at the Worcester County House of
Correction.

3. On January 6, 1987, Worcester County Sheriff-elect John Flynn
requested, in writing, a transfer of approximately $18,000 from the
Worcester County Reserve Account to the House of Correction budget
to fund certain promotional changes involved in Flynn's proposed
re-organization of the Jail and House of Correction. The approval
of reserve fund transfers requires the presence of three voting
County Commissioners. After approval by the County Commissioners,
a request for reserve fund transfer is sent to the Worcester County
Advisory Board for the approval of that Board.

4. The Sheriff-elect's request was sent to the County
Commissioners through the Worcester County Manager and included a
list of the promotional changes. The list named seventeen
individuals and included Michael Tivnan (Michael) and Maureen
Anderson (Maureen) among those being promoted and set forth the
respective dollar amounts by which their annual salaries were being
increased (Michael - $506.75, Maureen - $519.93).

5. On January 15, 1987, the County Commissioners voted to
request the approval of the County Advisory Board ofa transfer of
$17,754.30 from the Reserve Fund to the Jail and House of
Correction to he used to fund salary increases for the promoted
employees. Mr. Tivnan was present, voted in favor of the request
and signed the request. The request form which Mr. Tivnan signed
referred to a copy of the Sheriff- elect's request which was
attached to it.[1]

6. On January 18, 1987, the Executive Committee of the County
Advisory Board voted to approve the transfer request.

7. On January 28, 1987, Sheriff Flynn submitted to the County
Commissioners, pursuant to G.L. c. 35, s.s.4 & 56, Notice of intent
to Fill a vacancy or to establish a New Position forms relating to
the promotions and salary increases of Michael and Maureen which
were funded by the January 15, 1987 vote. On February 4 and
February 11, 1987, the County Commissioners respectively approved
Michael's and Maureen's promotions, by signing the Notice of Intent
forms relating to them. Mr. Tivnan did not sign Michael's or
Maureen's Notice of Intent forms, which were signed by the two
other County Commissioners.

8. On or before February 4, 1987, there were media reports
concerning Mr. Tivnan's participation in the January 15, 1987 vote
of the County Commissioners.

9. On February 9, 1987, at Mr. Tivnan 's request, the attorney
for the County called the Legal Division of the Commission
concerning Mr. Tivnan's participation in the January 15, 1987 vote.
The County's attorney was advised that Mr. Tivnan should self-
report to the Commission's Enforcement Division in order to resolve
the matter.

10. On February 10, 1987, at the request of Mr. Tivnan, the
County's attorney contacted the Commission's Enforcement Division
and informed the division that Mr. Tivnan intended to seek
Commission review of his role in the January 15, 1987 vote. The
County's attorney confirmed this information by letter dated Feb-
ruary 11, 1987.

11. On February l0, 1987, at a meeting of the County
Commissioners, Mr. Tivnan informed the other two County
Commissioners of his intent to request a Commission review of his
participation in the January 15, 1987 vote and stated that he would
leave the room if there was to be any further discussion of that
matter. At the same meeting, while Mr. Tivnan was not present, the
remaining two County Commissioners voted to reconsider the January
15, 1987 vote on February 17, 1987.

12. On February 17, 1987, Charles Hudson was appointed as acting
County Commissioner because Mr. Tivnan had disqualified himself,
pursuant to G.L. c. 34, s.12.[2]

13. At the County Commissioners' meeting of February 17, 1987,
the January 15, 1987 vote was rescinded

Page 327

and cancelled. Mr. Tivnan did not attend the meeting, and Mr.
Hudson participated as acting County Commissioner.

14. Also at the February 17, 1987 meeting, the County
Commissioners, with Mr. Hudson as acting County Commissioner, voted
to approve the transfer request after a presentation by Sheriff
Flynn.

15. Mr. Tivnan submitted a letter to the Commission dated
February 26, 1987 disclosing the relevant facts in this matter and
included copies of pertinent documents.

16. Except as permitted in that section, G.L. c. 268A, s.13
prohibits a county employee from participating as such in a
particular matter in which to his knowledge he, or a member of his
immediate family, has a financial interest. None of the exceptions
to s.13 applies to this matter.

17. The approval of the Reserve Fund transfer request to fund
promotional changes on January 15, 1987; was a particular matter
as that term is defined in G.L. c. 268A, s.1(k). By voting on the
transfer request, Mr. Tivnan participated in a particular matter
in which he knew members of his immediate family had a financial
interest, thereby violating s.13.

18. The Commission has found no evidence suggesting that Mr.
Tivnan intentionally violated the conflict of interest law.[3]

Based upon 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. Tivnan:


1. that he pay to the Commission the amount of five hundred
dollars ($500.00) as a civil penalty for violating s.13;


2. that in the future he refrain from participating in any
particular matter in which any member of his immediate family
has a financial interest; and


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 or may beaparty'.

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[1] Mr. Tivnan knew when he signed the request that it would
affect the organization and salary structure of the department in
which his son and daughter were employed, matters in which Mr.
Tivnan was aware his children had a financial interest.

[2] Section l2 of G.L c. 34 states in pertinent part:
In case of inability to attend, or interest in a question hefore
the commisioners, or if any part of a highway relative to which
they are to act lies within the town where a commissioner resides,
the commissioners qualified to act and the clerk of court, for the
county shall appoint one or more persons. not residing in the same
town as any commissioner, nor in the same town with each other, if
more than one, to act as commissioners in place of those absent or
disqualified, until such absence or disqualification ceases.

[3] 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, 318 Mass. 1,7(1945).