Nantucket Board of Selectmen Member Whiting Willauer Cited for Conflict of Interest Law Violations
Voted to award contracts to two non-profit organizations with which he was affiliated
According to the Agreement, Willauer, as a BOS member, voted to award contracts to ASAP and BHS as follows:
- In 2006, the BOS approved a $5,000 contract with ASAP;
- In 2007, the BOS approved a $15,000 contract with ASAP; and
- On June 23, 2010, the BOS approved a $152,100 contract with ASAP and BHS as a joint venture ("ASAP/BHS");
The Agreement states that at the November 17, 2010 BOS meeting, the BOS members discussed whether Willauer had a conflict of interest when he voted to award the contract to ASAP/BHS in June, 2010. Although Willauer responded that he needed clarification on how to handle the situation in the future, he took no steps to seek any clarification. At the December 8, 2010 BOS meeting, a member moved to re-vote the June 23, 2010 contract award to ASAP/BHS due to conflict of interest concerns, and Willauer again voted to award the $152,100 contract to ASAP/BHS.
Section 19 of c. 268A, in relevant part, prohibits a municipal employee from participating as such an employee in a particular matter in which, to his knowledge, a business organization in which he is serving as officer, director, trustee, partner or employee, has a financial interest. A non-profit organization may be considered a business organization for conflict of interest law purposes if it regularly engages in activities that are commonly understood to be business activities. The Agreement states that BHS is a business organization because its activities regularly involve the business activity of providing a service for a fee, and this business activity constitutes a significant part of BHS's total activities as an organization. Therefore, according to the Agreement, Willauer violated section 19 each time he voted as a BOS member to award contracts to BHS, a non-profit organization in which Willauer served as president.
Section 23(b)(3) prohibits a municipal employee from knowingly, or with reason to know, acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that the employee is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. This section further provides that it shall be unreasonable to so conclude if such employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion. The Agreement states that, by participating in the award of contracts to ASAP, while failing to publicly disclose that he served on ASAP's board of directors, Willauer violated section 23(b)(3).
Section 17(c) prohibits a municipal employee from acting as an agent or attorney for anyone other than the same municipality in connection with a particular matter in which the municipality is a party or has a direct or substantial interest. The Agreement states that Willauer violated section 17(c) on or about June 23, 2010, by acting as agent for BHS when, in his capacity as BHS President, he signed the $152,100 contract between ASAP/BHS and the Town of Nantucket.
"Public employees should understand that the conflict of interest law places restrictions on their ability to participate in matters affecting private, non-profit organizations with which they are affiliated," stated Executive Director Karen L. Nober. "They also must take care not to represent the non-profit with which they are affiliated in its dealings with their public employer."