Letter Ruling  Public Education Letter: John Rose

Date:	03/16/2015
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

John Rose

Dear Mr. Rose:

As you know, the State Ethics Commission conducted a preliminary inquiry into allegations that you, in your capacity as the Oak Bluffs Ambulance Squad Chief, and subsequently as the Oak Bluffs Fire-Emergency Medical Services ("EMS") Department Chief, violated Section 19 of the conflict of interest law, G.L. c. 268A.  Specifically, the preliminary inquiry focused on the claim that you had participated in the hiring and supervision of four members of your immediate family between 2009 and 2013.  Based on the staff's investigation, the Commission voted on December 18, 2014 to find reasonable cause to believe that you violated G.L. c. 268A, § 19.

Rather than authorizing an adjudicatory proceeding against you, the Commission has determined that the public interest would be better served by publicly discussing the facts revealed by the preliminary inquiry, and by explaining the application of the law to the facts.  The Commission expects that by resolving this matter publicly through a Public Education Letter, you and other public employees in similar positions and circumstances will have a clearer understanding of, and ability to comply with, the conflict of interest law.

The Commission and you have agreed that there will be no formal proceeding against you in this matter, and you have chosen not to exercise your right to a hearing before the Commission.

Facts

In 2006, the Town of Oak Bluffs (the "town") made the Ambulance Department an independent department, and the Board of Selectmen appointed you Ambulance Chief. In April 2012, the town merged the Ambulance Department and Fire Department (renamed the "Fire-EMS Department"), and the Board of Selectmen appointed you temporary Fire Chief.  You became permanent Fire Chief in May 2013.  In your town positions, first as Ambulance Chief and then as Fire Chief, you have been the appointing authority for all positions under your command.  As Ambulance Chief, and then as Fire Chief, you supervised, respectively, all Ambulance Department and Fire-EMS Department employees, assigned work schedules, and signed payrolls.

Four members of your immediate family (a brother, two sisters and a daughter) were employees of the Ambulance Department and are employees of the Fire-EMS Department.  As Ambulance Chief, and then as Fire Chief, you supervised each of your family members, including approving all work schedules and payroll sheets, from 2009- 2013.¹  In addition, as Ambulance Chief, you participated in the hiring process for part-time seasonal positions and appointed your sister to one such position in 2009-2010.  You also participated as Ambulance Chief in the hiring process for, and appointed that same sister to, a permanent full-time position in December 2010.  Also as Ambulance Chief, you appointed a second sister to a call Emergency Medical Technician ("EMT") position in July 2009; and you participated in the hiring process for, and appointed that sister to, a seasonal position in 2010-2012.  Finally, as Fire Chief, you participated in the hiring process for, and appointed that sister to, a permanent full-time position in 2013.  As Ambulance Chief, you appointed your daughter to a call EMT position in June 2011; in 2012-2013, as Fire Chief, you selected the interview committee which recommended  the appointment of your daughter to a seasonal position in 2012-2013, and you appointed that daughter to that position.

In June 2011, for the first time, you submitted a written disclosure pursuant to G. L. c. 268A, § l 9(b)(1) to the Board of Selectmen (your appointing authority) regarding your participation as Ambulance Chief in matters involving your family members, and requested a written determination from the Board allowing you to participate in the hiring and/or supervision of your family members.  You disclosed your immediate family members' employment with the Ambulance Department, and that you, as Ambulance Chief, approved all work schedules and payroll sheets, including those of your family members.  Your disclosure states:

As Ambulance Chief, I have direct supervision over employees of the department.  Presently, we employ several of my family members on the department. These employees were hired based on merit under the same guidelines as all other employees.  When dealing with Administrative issues such as hiring, firing, disciplinary action and promotions etc. the decisions are made by the Officers of the Department which include myself and two Lieutenants.

The Chair of the Board of Selectmen signed your § l 9(b)(1) determination request in July 2011, but did so without first bringing the matter to the full board for consideration and approval.  In September 2013, after becoming aware that there were deficiencies in your July 2011 disclosure and determination, you filed a new § 19(b)(l) disclosure and determination request with the Board of Selectmen.  You also provided the Board of Selectmen a memorandum that outlined the history of your family members' employment with the town and your involvement in their hiring and supervision.  The Board of Selectmen reviewed the matter and provided you with a written determination on December 5, 2013, which allows you to participate as Fire Chief in the daily supervision and payroll matters of your family members but requires you to abstain from participating in any promotions or appointments of your immediate family members, unless specifically authorized to do so by the Board of Selectmen.

Legal Discussion

Municipal Employee

As both Ambulance Chief and Fire Chief, you were and continue to be a "municipal employee" as that term is defined in G.L. c. 268A, § l (g).

Section 19

Section 19, in relevant part, prohibits a municipal employee from participating as such an employee in a particular matter in which to his knowledge he, or a member of his immediate family,² has a financial interest.  This section is intended to address the concern that the objectivity and integrity of municipal employees may be compromised if they act on matters affecting the financial interests of people or businesses with whom they are closely related or affiliated.  A municipal employee may avoid violating § 19 if, before participating in the matter, the municipal employee advises his appointing authority in writing of the nature and circumstances of the particular matter, makes full disclosure of his or his family member's financial interest, and receives a written determination from his appointing authority 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 employee is prohibited from participating in the matter unless and until the employee receives such a determination from his appointing authority.

Decisions made in hiring and supervising Fire-EMS Department employees are particular matters.  As Ambulance Chief and Fire Chief, you personally and substantially participated in these particular matters by choosing selection committees, making appointments, and/or approving work schedules and payroll sheets. These decisions involved your immediate family members (a brother, two sisters and a daughter).  You were aware that your immediate family members had a financial interest in these matters because they directly involved their employment and compensation.  Therefore, the Commission found reasonable cause to believe that you violated § 19. See Commission Advisory 86-02, "Nepotism."

As discussed above, as an appointed municipal employee, you were required by § 19(b)( 1) to have made a written disclosure to the Board of Selectmen, your appointing authority, and to have abstained from participating unless you received a written determination which would have allowed your participation despite your immediate family members' financial interest.  Prior to June 2011, you failed to do so before participating in these particular matters.  In June 2011, you made a written disclosure to, and sought a written determination from, the Board of Selectmen pursuant to § 19(b)(1). The Board of Selectmen took no action, and did not provide you with a written determination allowing you to participate in the matters that were the subject of your disclosure.  In December 2013, you properly secured a § 19(b)(l) determination from the Board of Selectmen and have complied accordingly.

Disposition

The law presumes that a conflict of interest is created whenever a public employee participates in a particular matter in which his immediate family member has a financial interest, unless the employee's appointing authority, after being informed of all of the relevant facts, determines in writing that the conflict of 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 and allows the public employee to participate in the matter. Your participation as Ambulance Chief and Fire Chief in the hiring and supervision of your immediate family members as Ambulance Department and Fire-EMS Department employees created a conflict of interest between your public duties and your private family relationships. Absent a written determination by your appointing authority to the contrary, the law presumes that you cannot be fair and objective in making hiring and supervisory decisions regarding members of your immediate family, and, therefore, prohibits you from doing so.

The Commission is authorized to resolve violations of G.L. c. 268A with civil penalties of up to $10,000 for each violation.³ The Commission, however, is not unsympathetic to the fact that you attempted to comply with the law in 2011 by making a disclosure and seeking a determination from your appointing authority, and notes that you have fully complied with the law since 2013.  Moreover, the Commission believes that your situation is not unique, and that other employees in similar situations would greatly benefit from the explanation of the law provided in this letter, and, therefore, has decided to resolve this matter by way of a Public Education Letter rather than through an adjudicatory process.  In particular, we note that within certain areas of public service, such as fire and police departments, there is a strong family tradition in which many members of the same family pursue the same type of employment and frequently work together or for each other.  In those circumstances, where conflict of interest issues are likely to arise, it is crucial that the employees and their appointing authorities understand and comply with the restrictions imposed by the conflict of interest law.  Compliance with the law is an important means of ensuring that the hiring and other processes in such agencies are conducted fairly and objectively, and of promoting public confidence in the integrity of the services provided by such public agencies.

Very truly yours,

Karen L. Nober,
Executive Director

¹ You hired and/or supervised your family members prior to 2009, but because of our six-year statute of limitations, we are not addressing any conflict of interest violations that may have occurred prior to 2009 .

² "Immediate family" is defined as the employee and his spouse, and their parents, children, brothers and sisters. G.L. c. 268A, § l (e).

³ A civil penalty of up to $25,000 may be imposed for G.L. c. 268A, § 2 violations (bribes).