Letter Ruling  Public Education Letter in the Matter of Albert Ganem

Date:	03/02/2022
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Public Education Letter

Dear Mr. Ganem:

As you know, the State Ethics Commission authorized a preliminary inquiry into whether you violated the state conflict of interest law by, while serving as the Superintendent of the Hampden-Wilbraham Regional School District (“District”), participating in the hiring of your spouse and daughter to positions in the District during the 2020-2021 school year.

On January 19, 2022, the Commission voted to find reasonable cause to believe that your actions violated three sections of the conflict of interest law, as explained below. The Commission did not, however, authorize adjudicatory proceedings against you as it determined that the public interest would be better served by resolving this matter through this Public Education Letter discussing the relevant facts and explaining how the conflict of interest law applies to them. In deciding on this non-punitive resolution, the Commission took into consideration that you self-reported this matter to the Commission, that you fully cooperated with the Commission’s investigation, and that Massachusetts public schools faced unprecedented staffing challenges in 2020 due to the COVID-19 pandemic.

By resolving this matter through this Public Education Letter, the Commission expects that you and public employees in circumstances similar to those described below will as a result have a clearer understanding of the conflict of interest law and how to comply with it.  The Commission and you agree that this matter will be resolved publicly with this educational letter and that there will be no formal proceedings against you. You have chosen not to exercise your right to a hearing before the Commission.  

The Facts

You have served as the Superintendent of the District since 2015.  Pursuant to G.L. c. 71, § 59B, the hiring of teachers and other school staff is subject to your approval as Superintendent.

The hiring of your spouse

The District’s Mile Tree Elementary School began remote teaching during the 2020-21 school year due to the COVID-19 pandemic. Some time after classes began, you had a conversation with a kindergarten teacher who indicated that she was overwhelmed. You stated that you believed your spouse, a licensed teacher, would be interested in helping out. The teacher told you she would be very grateful, as the school was “critically understaffed.”

Soon thereafter, you, as Superintendent, instructed the school’s Director of Curriculum & Instruction to hire your spouse, which he did. You subsequently approved the hiring. Your spouse was not interviewed for the position and did not go through the school’s regular hiring process, including appointment by the principal. At the time you spoke with the teacher, a remote kindergarten teaching position had not been posted. After your spouse began working for the school, a remote kindergarten position was posted, but none of the candidates who applied for the position were considered for hiring. 

Your spouse worked remotely for the Mile Tree Elementary School during the 2020-21 school year for six hours per week, with four hours of “prep time”, at $40 an hour, and earned a total of $5,480.00. Staff described your spouse as “very professional” and a “phenomenal teacher.”

The hiring of your daughter

On May 22, 2020, the District issued an internal posting for a summer school special education position for the summer of 2020. After the posting closed on June 5^th, you had a conversation with a staff member involved in the hiring who told you that, while normally the District sees a lot of interest from teachers to help with summer school, the District was having difficulty in recruiting internal staff in 2020. You told the staff member that your daughter was a licensed special education teacher in Worcester and offered to ask your daughter if she was interested. You also told the staff member that she had no obligation to hire your daughter.

Soon thereafter, your daughter contacted the staff member. Another staff member interviewed her and reported she fit all the qualifications for the position. The Mile Tree Elementary School hired her and you, as Superintendent, approved the hiring. She worked for $25 an hour and earned a total of $1,162.50.

District nepotism policy

The District’s policy on nepotism states that the District will not employ a member of the Superintendent’s immediate family “unless written notice is given to the School Committee of the proposal to employ at least two weeks in advance of such person’s employment or assignment.” The District’s policy is founded on state law.[1]

You reported to the School Committee on April 1, 2021 that your daughter had worked for the District’s 2020 summer program, and your spouse was currently working as a remote kindergarten teacher. You claimed the delay in reporting the employment to the School Committee was a result of an oversight. You also filed a § 23(b)(3) disclosure regarding your immediate family members’ employment on April 15, 2021. The School Committee did not impose any discipline on you for not following the school policy.

Legal Discussion

As Superintendent, you are a municipal employee subject to the state conflict of interest law, General Laws chapter 268A. Your spouse and your daughters are members of your immediate family. The hiring of immediate family members as described above implicates §§19, 23(b)(2) and 23(b)(3) of this law.

Section 19

Section 19 of the conflict of interest law prohibits a municipal employee from participating in a particular matter in which the employee’s immediate family member has a financial interest.[2] Participation includes not only acting directly on a matter, but also formal and informal lobbying of colleagues, discussing, giving advice, or making recommendations in connections with those matters.

The hirings of your spouse and your daughter were ‘particular matters’ within the meaning of this section of the law. Both your spouse and your daughter had a financial interest in the hirings, as they were paid for their services. You participated as Superintendent in your spouse’s hiring in the District by discussing her potential employment with a staff member, instructing the school hire her, and approving that hiring. Similarly, you participated in your daughter’s hiring by suggesting her hiring as a solution to the lack of internal applicants for teaching positions in the school’s summer program and approving that hiring.

Even if you believed that the hiring of your family members served the public interest given the need for either immediate assistance or qualified candidates, your participation in their hirings violated the conflict of interest law, unless you received in advance a written determination from your appointing authority, the School Committee, that your family members’ financial interest was not so substantial as to be deemed likely to affect the integrity of the services that the District expects of you.[3] Acting in your official capacity in relation to your family members creates the appearance of favoritism and bias even if you do not give your family members special treatment.

As you did not notify the School Committee of the hirings of your spouse and daughter until several months after their employment began, there is reasonable cause to believe your actions were in violation of § 19 of the conflict of interest law.

Section 23(b)(2)

Section 23(b)(2)(ii) of the conflict of interest law prohibits a public employee from using or attempting to use his official position to obtain unwarranted privileges that are not properly available to similarly situated individuals. In general, this section prevents a public employee from using public resources for personal gain, or for the private benefit of others. Both the hiring of your spouse and that of your daughter were inconsistent with the District’s established hiring practices. The District hired your spouse prior to a position being posted and without authorization by the school’s principal, and hired your daughter to a position posted only for internal candidates. In addition, the hirings were in violation of the District’s nepotism policy and G. L. c. 71, § 67. Being hired outside a public agency’s established hiring process, in violation of an important policy of the agency and contrary to state law is an unwarranted privilege of substantial value that is not properly available to other candidates seeking employment with the agency. Although you did not directly hire your spouse and your daughter, you used your position as Superintendent to facilitate their hiring by asking the Director of Curriculum and Instruction to offer your spouse a position, alerting your daughter to an opportunity that was not externally posted, and approving the hirings. Accordingly, there is reasonable cause to believe you violated § 23(b)(2) of the conflict of interest law.

Section 23(b)(3)

Finally, § 23(b)(3) of the conflict of interest law prohibits a public employee from acting in a manner that would cause a reasonable person, who knows the relevant facts, to conclude that the employee can be improperly influenced by kinship or unduly favor anyone in the performance of his official duties. Here, a reasonable person with knowledge of the facts stated above would conclude that you would unduly favor your spouse and your daughter in your official actions as Superintendent.

Generally, a public employee may avoid a violation of § 23(b)(3) by either recusing themself from the matter in which an appearance of a conflict exists, or by filing a full written disclosure of the circumstances that create the appearance of official bias or favoritism with their appointing authority, prior to participating. While you did ultimately file a § 23(b)(3) disclosure relating to your spouse and daughter, you did not do so prior to acting.  Accordingly, there is reasonable cause to believe that the actions you took as Superintendent regarding your spouse’s and daughter’s employment with the District violated § 23(b)(3) of the conflict of interest law.

Disposition

Based upon its review of this matter, the Commission has determined that the public interest would be best served by the issuance of this Public Educational Letter and that your receipt of this letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law.

This matter is now closed.

 

[1] Section 54 of the Education Reform Act of 1993, amended section 67 of Massachusetts General Laws chapter 71 to read, in relevant part, “A school district shall [not] employ a member of the immediate family of a superintendent… unless written notice is given to the school committee of the proposal to employ… such person at least two weeks in advance of such person’s employment.”

[2] Section 19 prohibits a municipal employee from participating “as such an employee in a particular matter in which to his knowledge he, his immediate family or partner, a business organization in which he is serving as officer, director, trustee, partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest.”

[3] Specifically, § 19(b)(1) provides an exemption to this section of the law for an appointed municipal employee who, before acting, advises their appointing authority of the nature and circumstances of the particular matter and makes full disclosure of the relevant financial interest, and receives a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services the municipality may expect from the municipal employee.