Letter Ruling  Public Education Letter in the Matter of Stephen Santos

Date:	11/08/2021
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. Santos:

As you know, the State Ethics Commission conducted a preliminary inquiry into whether you, in your capacity as a member of the Ludlow Board of Public Works (the “DPW Board”), violated the state conflict of interest law by: (1) participating as a DPW Board member in a vote electing you as Chairman of the DPW Board, a particular matter in which, to your knowledge, you had a financial interest; and (2) creating an appearance of a conflict of interest by participating in  disciplinary matters regarding a Ludlow Department of Public Works employee (“the DPW Employee”) who you believed was providing information to a state agency regarding allegations against you.  

On May 27, 2021, the Commission voted to find reasonable cause to believe that your actions, as described below, violated the state conflict of interest law, General Laws chapter 268A, sections 19 and 23(b)(3), and authorized adjudicatory proceedings. The Commission has determined, however, that, in lieu of adjudicatory proceedings, the public interest would be best served by issuing this Public Education Letter discussing the facts revealed by the preliminary inquiry and explaining how the conflict of interest law applies to those facts. By resolving this matter with this Public Education Letter, Commission seeks to ensure that you and other public employees in circumstances similar to those described below will have a clearer understanding of the conflict of interest law and how to comply with it.

The Commission and you have agreed 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

On or about March 21, 2016, you were elected as a member of the DPW Board. DPW Board members receive stipends.

In March 2017, the members of the DPW Board elected you as Chairman. You abstained from the vote. The Chairman’s stipend is higher than that of the other members.

In or about April 2017, you confronted the DPW Employee because you believed that the DPW Employee was providing information about you to another DPW Board member supporting allegations against you being investigated by a state agency.

In June 2017, you, as DPW Board Chairman, issued a reprimand to the DPW Employee for failure to follow through on certain DPW Board requests and to publish DPW Board meeting minutes in a timely fashion.

Later in 2017, a public notice for a DPW Board meeting was not posted on time and the meeting had to be rescheduled. The DPW Employee was not at work on the day when the notice needed to be posted and had delegated the responsibility of posting the notice to another employee. You instructed the DPW Director to reprimand the DPW Employee for failing to post the notice.

In December 2017, you, another DPW Board member, and the director of human resources held a meeting regarding the DPW Employee’s general job performance. At or shortly before the meeting, you received information which you believed indicated that the DPW Employee had continued to cooperate with a state agency investigation of allegations against you.

On December 29, 2017, you, as the DPW Chairman, sent a letter to the DPW Employee to inform them that the DPW Board had scheduled an executive session meeting to discuss whether the DPW Employee had violated the Town’s Personnel Policy, by, among other things, performing non-work related tasks on their work computer.

The DPW Board executive session meeting was held in February 2018. You, as the DPW Board Chairman, participated in the session by discussing what you believed to be infractions committed by the DPW Employee and their past job performance deficiencies. At the conclusion of the meeting, you voted in favor of a motion that the DPW Employee’s supervisor evaluate their job performance within sixty days and, if the evaluation concluded that the DPW Employee’s performance was unsatisfactory, the DPW Board then vote on whether to suspend the DPW Employee for one week without pay. The DPW Employee was not later disciplined.

In March 2019, you stepped down from the DPW Board.

In June 2020, you were re-elected to the DPW Board. Once you began your term, the Town issued you stipend checks. You did not cash the checks. You did not inform in writing the Treasurer’s office that you did not wish to accept the stipend.

According to G.L. c. 41, § 69D, which governs boards of public works, “the members of the board shall, after each election, elect one of their members to act as chairman for the ensuing year.”  Thus, at its June 9, 2020 meeting, the DPW Board elected a new Chairman. One member nominated you as Chairman and another member nominated John Davis. Davis received three votes and you received two. You cast a vote for yourself. Davis was elected Chairman.

At the August 18, 2020, DPW Board meeting, the Vice-Chair announced that he was stepping down due to health concerns. Another DPW Board member suggested a reorganization of the entire board, including the Chairman position. You voted in favor of reorganization. You were nominated as Chairman and were so elected by a three-to-two vote. You voted for yourself. As Chairman, your annual stipend increased by approximately $780 over your stipend as a DPW Board member. In September 2020, the Town began to issue checks to you for the higher stipend. You did not cash the checks.

On October 6, 2021 you returned the uncashed stipend checks to the Town. On October 7, 2021, you informed in writing the Town Treasurer that you did not want to accept your stipend while chairman.

Legal Discussion

Section 19

Section 19 prohibits a municipal employee^[1] from participating as such in a particular matter in which, to his knowledge, he has a financial interest. A municipal employee has a financial interest in particular matters that involve his own compensation or employment benefits.

The DPW Board’s election of a new Chairman was a particular matter within the meaning of the conflict of interest law. At the time you voted, you had a direct and immediate financial interest in the election, as your becoming Chairman would increase your annual DPW stipend by approximately $780.

Therefore, by voting as a DPW Board member to elect yourself Chairman, you participated in a particular matter in which you had a financial interest. Accordingly, the Commission found reasonable cause that you violated § 19 of the conflict of interest law.

Section 23(b)(3)

Section 23(b)(3) prohibits a public employee from, knowingly or with reason to know, acting in a manner which would cause a reasonable person with knowledge of the relevant circumstances to conclude that the public employee can be improperly influenced in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.

Whether it was true or not, given that you believed the DPW Employee had provided information supporting allegations against you under investigation by a state agency, a reasonable person with knowledge of the relevant circumstances would have been caused to conclude that you had a bias against the DPW Employee that would improperly influence your actions as the DPW Chairman when you participated in disciplinary matters involving them. Accordingly, the Commission found reasonable cause that you violated § 23(b)(3) of the conflict of interest law by participating as DPW Chairman in the disciplinary matters regarding the DPW Employee.

In addition, whether or not discussion of the job performance, or even discipline, of the DPW Employee was warranted is not relevant to whether you violated § 23(b)(3) because your participation in those matters was in either case inappropriate given that, under the circumstances, your involvement created the appearance that the DPW Employee was being disciplined because you believed they were providing information to a state agency investigating your alleged actions. Such appearances of bias or undue influence negatively impact public confidence in government as they can cause reasonable persons to conclude that government officials while in their conduct of governmental business are acting in their own self-interest and at the expense of the public. The conflict of interest law requires public employees to ensure that the actions they take in their public capacity are in the public interest and free from the appearance that they are the result of bias, favoritism or undue influence or otherwise made for any reason that is not in the public interest.

Disposition

The Commission is authorized to resolve violations of G.L. c. 268A with adjudicatory proceedings and civil penalties. Based upon its review of this matter, however, the Commission has determined that the public interest would be best served by the issuance of this educational letter in lieu of adjudicatory proceedings, and that your receipt of this Public Education Letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law.

This matter is now closed.                 

^[1] As a member of the DPW Board, you were a municipal employee as defined by G.L. c. 268A, §1(g).