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Letter Ruling

Letter Ruling Public Education Letter: Maryellen Aspden

Date: 04/27/2015
Organization: State Ethics Commission
Referenced Sources: Conflict of interest law

Table of Contents

Maryellen Aspden Public Education Letter

Maryellen Aspden
c/o Matthew M. Aspden, Esq.
1026 County Street
Somerset, MA  02726

Mr. Raymond Frizado                       
c/o Joseph P. Fingliss, Jr.
469 Locust Street – P.O. Box 1141
Fall River, MA 02722-1141

Mr. Richard Silvia
c/o Arthur D. Frank, Esq.
209 Bedford Street, Suite 402
Fall River, MA  02720

James Pereira                                      
[Home Address]
Somerset, MA  02726

Re: Public Education Letter:  Municipal Employment; Summer Jobs; Voting on Immediate Family

Dear Mrs. Aspden and Messrs. Frizado, Pereira and Silvia:

As you know, the State Ethics Commission conducted a preliminary inquiry into allegations that each of you, in your capacity as a Somerset Recreation Commissioner, violated the conflict of interest law, G.L. c. 268A.  The preliminary inquiry focused on allegations that in 2012 and/or 2013, you voted to approve summer jobs hiring lists that included your family members and/or individuals with whom you had undisclosed private relationships. 

On February 19, 2015, the Commission voted to find reasonable cause to believe that you violated G.L. c. 268A.  Rather than authorizing adjudicatory proceedings against you, however, 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 proceedings against you in this matter, and you have chosen not to exercise your rights to a hearing before the Commission.

Commissioners Aspden and Pereira

The Somerset Recreation Department is overseen by a Director.  The five-member Recreation Commission is the Director’s appointing authority.  Recreation Commissioners are elected positions.

The summer jobs offered by the Town are paid positions.  The jobs include, but are not limited to, lifeguards, maintenance workers, waterfront ticket collectors, all-day summer camp counselors, hip-hop dance and cheerleading teachers.  Summer workers earn between $8-$14/hour for 10-12 weeks.  The required minimum age for summer workers is 15 years old.

The Director’s duties include reviewing summer job applications, interviewing applicants and generating a list of recommended summer hires for the Recreation Commission’s approval.  Occasionally, Recreation Commissioners suggest that the Director consider certain individuals for hire or “picks” before the Director generates her list of recommended summer hires.

In 2012, Commissioner Aspden told the Director that her stepson would be home for the summer and it would be “nice” if he could get a summer job.  Because Commissioner Aspden’s stepson had previously worked for the Recreation Department, and because the Director thought he was “pretty good,” the Director placed him on the 2012 and 2013 summer lists, which she was recommending for approval by the Recreation Commission.

In 2012, Commissioner Pereira suggested to the Director that his stepdaughter would be a “great fit” for a job in the summer camp and that it would be “great” if the Director could get his stepdaughter into that program.  The Director interviewed Pereira’s stepdaughter and placed her on the 2012 and 2013 summer lists.

In April 2012 and April 2013, the Recreation Commission, including Commissioners Aspden and Pereira, voted unanimously to hire everyone on the 2012 and 2013 summer lists, including Commissioner Aspden’s stepson and Commissioner Pereira’s stepdaughter.

Municipal Employee

As Recreation Commissioners, Aspden and Pereira were and continue to be “municipal employees,” as that term is defined in G.L. c. 268A, § 1(g).

Section 19

Section 19 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, has a financial interest.  “Immediate family” is defined as the employee and his spouse, and their parents, children, brothers and sisters.  G.L. c. 268A, § 1(e).  Section 19 addresses the concern that the objectivity and integrity of municipal employees will be compromised if they act on matters affecting the financial interests of people with whom they are closely related or affiliated.  While appointed officials may obtain an exemption under § 19(b)(1),[1] this option is not available to elected officials, such as the members of the Recreation Commission.  Therefore, elected officials must completely abstain from participating in particular matters in which their immediate family members have financial interests. 

Commissioners Aspden’s and Pereira’s stepchildren are “immediate family” under the conflict of interest law.  The decision to hire summer workers was a particular matter. Commissioners Aspden and Pereira participated in that particular matter in 2012 and 2013 by voting to approve the summer lists that included their stepchildren.[2]  Their stepchildren had financial interests in the summer jobs because the jobs were paid positions.  Commissioners Aspden and Pereira knew that their stepchildren had financial interests in the summer jobs because the positions involved employment and compensation.  Therefore, the Commission found reasonable cause to believe that in 2012 and 2013, Commissioners Aspden and Pereira violated § 19.  See Commission Advisory 86-02,“Nepotism.” 

Commissioners Frizado and Silvia

In March 2013, Commissioner Frizado identified his grandchildren, A and B,[3] as his summer jobs picks by writing his name at the top of their summer jobs applications.  Commissioner Frizado’s grandchild A is also Commissioner Silvia’s godchild.  The Director placed grandchild A on the 2013 summer list but rejected grandchild B.

The Recreation Commission held a regularly scheduled meeting on April 23, 2013.  When the topic of the summer hires came up, Commissioner Frizado said he wanted grandchild B to obtain a summer job.  The Director responded that she would hire grandchild B.  Commissioner Frizado went on to state, Let’s be honest, we’re all here elected officials, you got friends or relatives whatever.  That’s what we’re supposed to do, you know what I mean? That’s what we’re supposed to do.

The Recreation Commission, including Commissioners Aspden, Frizado, Pereira and Silvia, voted 4-1 to approve the 2013 summer list, as amended with the addition of grandchild B, whom the Director had initially rejected.  The list included Commissioner Frizado’s grandchild A (also Commissioner Silvia’s godchild), and, as stated in the previous section, Commissioners Aspden’s and Pereira’s stepchildren.

On May 2, 2013, after consulting with Town Counsel, the Recreation Commission took the following actions: (1) rescinded its April 23, 2013 vote to approve the 2013 summer list; and (2) voted on a revised list that did not include grandchild B.  Commissioner Frizado abstained from voting on the recommendation to hire grandchild A.  Commissioners Aspden and Pereira abstained from voting on the recommendations to hire their stepchildren.  Commissioner Silvia again voted on the recommendation to hire his godchild. 

Section 23(b)(2)(ii)

Section 23(b)(2)(ii) prohibits a municipal employee from using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions, which are of substantial value and are not properly available to similarly situated individuals.  As stated earlier, Recreation Commissioners are municipal employees.  Being hired for a summer position was a privilege, which Commissioner Frizado attempted to secure for grandchild B.  The privilege was unwarranted because it was obtained by way of coercion; Frizado pressured his subordinate, the Director, to hire his grandchild.  Frizado used his Recreation Commission position in his attempt to secure this unwarranted privilege for grandchild B.

While the Recreation Commission ultimately did not hire grandchild B in the summer of 2013, had grandchild B been hired,  grandchild B would have received a privilege of substantial value because summer workers earned approximately $8-$14 per hour for 10-12 weeks.  Similarly situated individuals were other candidates for summer jobs.  Such jobs would not be properly available to those individuals through coercion or pressure.  Therefore, the Commission found reasonable cause to believe that Commissioner Frizado violated § 23(b)(2)(ii).

Section 23(b)(3)

Section 23(b)(3)[4] prohibits a public employee from acting in a manner that would create the appearance of a conflict of interest.  Grandchild A is Frizado’s grandchild and Silvia’s godchild.  A reasonable person viewing all the facts would conclude that Commissioners Frizado and Silvia, by voting to approve the 2013 summer list, gave preferential treatment to grandchild A because of kinship. 

Commissioners Silvia and Frizado could have avoided the appearance of a conflict of interest by each making an oral disclosure at the Recreation Commission meeting before taking any action as to godchild/grandchild A.  Alternatively, Commissioners Silvia and Frizado could have each filed written disclosures with the town clerk, prior to taking any action as to godchild/grandchild A. 

Disposition

A conflict of interest arises whenever a public employee acts on matters involving family members.  A conflict of interest occurs when a public employee participates in a particular matter in which his or her immediate family has a financial interest.  The law presumes that you cannot be fair and objective in making hiring decisions regarding members of your immediate family, and therefore, prohibits you from doing so.  Likewise, the appearance of a conflict of interest arises when a public employee acts officially on matters that affect other family members or individuals with whom the public employee has private relationships.  The public employee can avoid the appearance of a conflict of interest by making a public disclosure.  The abuse of one’s public position, such as when a public employee uses his or her official position to secure an unwarranted privilege of substantial value for a family member, is also a conflict of interest.  Your participation as Somerset Recreation Commissioners in the hiring of family members for summer jobs created a conflict of interest, or the appearance of a conflict of interest, between your public duties and your private family relationships. 

We want to make clear that the nepotism provisions of the conflict of interest law make no distinction between youth summer jobs and permanent full-time positions held by adults.  Throughout Massachusetts, young people seek summer jobs in the communities where they live. The Commission therefore believes that the situations involving the locally elected Somerset Recreation Commission are not unique; other municipal employees in similar situations may benefit from the explanation of the law provided in this letter.

While the Commission has decided to resolve this matter by way of a Public Education Letter rather than through an adjudicatory process, the Commission is authorized to resolve violations of G.L. c. 268A with civil penalties of up to $10,000 for each violation.[5]  

Very truly yours,

 

Karen L. Nober
Executive Director

[1] An appointed municipal employee may avoid violating § 19 if, before participating in the particular matter, the municipal employee advises his appointing authority in writing of the nature and circumstances of the 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. 

[2] We further note that although their approaches to the Director were not aggressive, Commissioners Aspden and Pereira also participated in the decision to hire their stepchildren by recommending them for summer jobs.  

[3] We have used pseudonyms to protect the privacy of the family members involved.

[4] 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, 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 he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. The section further provides that it shall be unreasonable to so conclude if such officer or 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.

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

Referenced Sources:

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