Settlement  Disposition Agreement in the Matter of Kenneth Michna

Date:	10/24/2019
Organization:	State Ethics Commission
Docket Number:	19-0013

Introduction

The State Ethics Commission (“Commission”) and Kenneth Michna (“Michna”) enter into this Disposition Agreement pursuant to Section 3 of the Commission’s Enforcement Procedures.  This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j). 

On January 23, 2019, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A.  On July 18, 2019, the Commission concluded its inquiry and found reasonable cause to believe that Michna violated G.L. c. 268A, §§ 17, 19, and 23(b)(2)(ii).

The Commission and Michna now agree to the following findings of fact and conclusions of law:

Findings of Fact

1.    Michna is and was at all relevant times the Agawam Junior High School (“AJHS”) Band Director.

2.    The Great East Music Festivals (or “Festivals”) are a series of one-day music festivals for students in Massachusetts and surrounding states. The Festivals are held at several schools (“Host Schools”) during school hours, and occasionally on Saturdays, each spring. Music groups from schools in the area of each Host School perform, then receive an instructional clinic and evaluations from Festivals judges before spending the afternoon at a local theme park.

3.    During 2016 and 2017, the Festivals were operated by Inspire Arts and Music (“IAM”), a not-for-profit organization. At this time, IAM used both “Great East Music Festivals” and “Great East Festivals” as its “doing business as” name in operating the Festivals.

4.    In exchange for providing their facilities and equipment for the Festivals, IAM pays most Host Schools a flat fee of $400 per day (“Hosting Payment”).

5.    A designee from the Host School’s music department (usually the Band Director or other staff member who facilitates the festival) serves as a host site coordinator (“Coordinator”) to provide site-specific information alongside an outside coordinator hired by IAM for the Festivals. Coordinators are paid a flat fee of $100 per day (“Coordinator Payment”).   

6.    IAM also hires two judges per festival to evaluate and critique students’ performances. Judges are paid a daily rate – either $300 or $350 per day – depending on the number of groups that perform. 

Judging and Coordinator Duties in 2017

7.    Because AJHS is located approximately ten minutes from Six Flags New England, it has served as a Festivals host school for many years.

8.    When Michna was hired as Band Director in 2014, he was asked to continue the school’s involvement in the Festivals. Michna has, in his capacity as Band Director, facilitated the school’s involvement in the Festivals each year. Michna discussed and obtained approval for festival dates with AJHS administration each year, but otherwise coordinated festival details as Band Director.

9.    In 2017, Michna was aware IAM paid individuals who served as host site coordinators and/or judges at the Festivals.

10.    In 2017, Michna coordinated with the Festivals director to schedule AJHS to host the Festivals on five Friday dates. Michna signed a contract between AJHS and IAM d/b/a Great East Music Festivals for AJHS to host the Festivals at a rate of $400 per day for five days, totaling $2,000. In the contract, Michna was listed as the school’s “primary contact,” and he signed the contract in his capacity as “representative from host school.”

11.    As Band Director of the host school, Michna served as a Coordinator on each of the five days that AJHS hosted the Festivals.

12.    Michna also worked as a judge on four of the five days that AJHS hosted the Festivals.

13.    Michna performed his Festivals judge and Coordinator duties during school days for which he was paid his usual Band Director salary.

14.    Michna was paid $1,250 by IAM for judging the 2017 Festivals ($300 per day on three days where eight or fewer groups performed and $350 on one day that more than eight groups performed).

15.    Michna was also paid $500 by IAM for Coordinator duties ($100 per day that AJHS served as a host site).

16.    In total, IAM paid Michna $1,750 for his services in connection with the Festivals hosted at AJHS in 2017.

Hosting Payment

17.    In 2017, IAM issued a $2,000 check payable to the “Agawam Junior High School Music Department” in payment for AJHS hosting the 2017 Festivals.

18.    In his capacity as Band Director, Michna received the IAM payment and gave it to the AJHS Band Parents’ Association. The payment was then deposited into the Band Parents’ Association bank account.

19.    The AJHS Band Parents’ Association is a private, parent-run booster organization. It operates independently of the school and is not subject to school oversight. Michna did not have any role in the creation or operation of the Band Parents’ Association bank account.

20.    At the time, AJHS did not have an “Agawam Junior High School Music Department” bank account. Michna and at least some of his predecessors gave prior years’ Hosting Payments to the AJHS Band Parents’ Association to be deposited in the Association’s bank account and used to support the band.

21.    After the completion of the 2017 Festivals, the AJHS Principal revised the school’s procedures for the Festivals.  AJHS staff members no longer adjudicate at the Festivals or accept Coordinator Payments. Michna, in fact, has not judged at the Festivals since 2017. In addition, AJHS created a revolving bank account for the school band through its central office to replace the AJHS Band Parents’ Association account.

Conclusions of Law

Section 17(a)

22.    Section 17(a) of G.L. c. 268A prohibits a municipal employee from, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receiving compensation from anyone other than the municipality in relation to a particular matter¹  in which the municipality is a party or has a direct and substantial interest.

23.    As AJHS Band Director, Michna is a municipal employee as that term is defined in G.L. c. 268A, § 1(g).

24.    The contract with IAM under which AJHS agreed to host and hosted the 2017 Festivals was a particular matter in which the Town of Agawam, through AJHS, was a party and had a direct and substantial interest.

25.    In 2017, Michna acted as a Coordinator in relation to AJHS’s contractually agreed hosting of the Festivals.

26.    In 2017, Michna also served as a judge for four Festivals dates.

27.    In 2017, Michna was paid a total of $1,750 by IAM to perform these Coordinator and judging duties at the Festivals hosted by AJHS. 

28.    Michna’s receipt of this private compensation was not as provided by law for the proper discharge of his official duties as Band Director.

29.    By receiving compensation from IAM for his judge and Coordinator duties at the 2017 Festivals, Michna received compensation from someone other than the Town of Agawam in relation to a particular matter in which the Town of Agawam was a party and had a direct and substantial interest.  In so doing, Michna violated G. L. c. 268A, § 17(a).

Section 19

30.    Except as otherwise permitted, § 19 of G.L. c. 268A prohibits a municipal employee from participating² as such an employee in a particular matter in which, to his knowledge, he has a financial interest³.

31.    The decision to have AJHS host the 2017 Festivals and AJHS’s contract with IAM to host the 2017 Festivals were particular matters. 

32.    Michna participated in these particular matters by, as Band Director, participating in the decision to have AJHS host five Festival dates in 2017 and signing a contract with IAM for AJHS to host the Festivals.  

33.    When he participated as Band Director in these particular matters, Michna knew he would be compensated as a Coordinator and likely also as a judge at the Festivals at AJHS.

34.    Therefore, by participating as AJHS Band Director in AJHS’s decision and contracting to host five days of the 2017 Festivals, Michna participated as a municipal employee in particular matters in which he knew he had a financial interest.  In so doing, Michna violated G.L. c. 268A, § 19.

Section 23(b)(2)(ii)

35.    Section 23(b)(2)(ii) of G.L. c. 268A prohibits a municipal employee from knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions, which are of substantial value, and which are not properly available to similarly situated individuals.

36.    Michna’s AJHS Band Director work hours are a public resource. Michna’s use of this public resource to perform privately-compensated work at the 2017 Festivals was a privilege.

37.    The privilege was of substantial value because Michna received his Band Director salary for his AJHS work hours and IAM paid Michna $1,750 in 2017 for the work he performed during school hours. 

38.    The privilege was unwarranted because Michna’s use of his paid public employee work hours to do privately paid work was not authorized by law or regulation.

39.    The privilege was not properly available to Michna as a paid AJHS employee or to other similarly situated individuals.

40.    Therefore, by using his AJHS Band Director work hours to do privately paid work at the 2017 Festivals, Michna knowingly or with reason to know used his official position to secure for himself an unwarranted privilege of substantial value that was not properly available to similarly situated individuals.  In so doing, Michna violated G.L. c. 268A, § 23(b)(2)(ii).

41.    In addition, the 2017 $2,000 hosting payment check from IAM payable to the “AJHS Music Department” was of substantial value.

42.    Michna, in his capacity as Band Director, received from IAM the $2,000 payment and gave it to the AJHS Band Parents’ Association.

43.    The AJHS Band Parents’ Association receipt of the $2,000 IAM payment was a privilege of substantial value.  The AJHS Band Parents Association’s receipt and deposit of the IAM payment check was unwarranted because the check was made payable to the AJHS Music Department and no law or regulation authorized the Association, a private organization, to receive and deposit into its own account a check made out to a school department. 

44.    This unwarranted privilege was not properly available to the Association or similarly situated individuals.

45.    Therefore, by, as Band Director, giving the Hosting Payment to the AJHS Band Parents’ Association, Michna knowingly or with reason to know used his official position to secure for the Association an unwarranted privilege of substantial value that was not properly available to the Association or similarly situated individuals.  In so doing, Michna violated of G.L. c. 268A, § 23(b)(2)(ii).

Resolution

In view of the foregoing violations of G.L. c. 268A by Michna, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the basis of the following terms and conditions agreed to by Michna:

(1)  that Michna pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $2,500 as a civil penalty for violating G.L. c. 268A, §§ 17, 19, and 23(b)(2)(ii); and

 (2)  that Michna waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

 

By signing below, Michna acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to all terms and conditions herein.

^[1] “Particular matter” means any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.  G.L. c. 268A, § 1(k).

^[2] “Participate” means to participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.  G.L. c. 268A, § 1(j).

^[3] “Financial interest” means any economic interest of a particular individual that is not shared with a substantial segment of the population of the municipality.  See Graham v. McGrail, 370 Mass. 133 (1976).  This definition has embraced private interests, no matter how small, which are direct, immediate or reasonably foreseeable.  See EC-COI-84-98.  The interest can be affected in either a positive or negative way.  EC-COI-84-96.