Settlement  Disposition Agreement in the Matter of Roland Nutter

Date:	10/21/2019
Organization:	State Ethics Commission
Docket Number:	19-0010

Introduction

The State Ethics Commission (“Commission”) and Roland Nutter (“Nutter”) 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 June 20, 2019, the Commission concluded its inquiry and found reasonable cause to believe that Roland Nutter violated G.L. c. 268A, §§ 19 and 23(b)(2)(ii).

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

A. Background

1.  Nutter, a resident of Pepperell, was at all relevant times a member of the Town of Pepperell (“Town”) Board of Selectmen (“Board”). Nutter was appointed Board chair on April 30, 2018. Nutter’s term expired in April 2019 and he did not seek reelection. 

2.  Nutter’s wife is and was at all relevant times the Town Treasurer/Collector. Town Treasurer/Collector is a fulltime paid municipal position. Nutter’s wife has served as Town Treasurer/Collector for approximately eight years.

3.  On February 2, 2016, Nutter sought advice from the Legal Division of the State Ethics Commission about potential conflicts of interest with his wife’s position if he were elected to the Board. The Legal Division advised Nutter not to participate in particular matters in which his wife had a financial interest, such as contract negotiations, performance evaluations, and/or disciplinary matters. The Legal Division also advised Nutter to abstain from budget line items and payroll warrants that would affect his wife. 

B. Discussing his Wife’s Employment Contract

Findings of Fact

4.  Nutter’s wife’s employment agreement with the Town was due to expire on June 30, 2018. She negotiated her next employment contract, and base compensation of $81,000, with the Town Administrator, and they reached agreement on April 10, 2018.

5.  Under the Town Charter, a contract negotiated by a Town employee and the Town Administrator requires approval by the Board. The Board approves a contract when it is signed by at least two of its three members. 

6.  On April 10, 2018, the Board Administrative Assistant notified the Board members that Nutter’s wife’s contract and other town documents were ready to be signed. Nutter did not sign his wife’s contract. The then Board chair signed the contract, and the third Board member declined to sign the contract.

7.  At the April 17, 2018 Board meeting, Nutter discussed his wife’s unsigned contract. Speaking as a Selectman, he told his Board colleague who did not sign the contract that she was in “dereliction of her duties.” Nutter asserted that the Town Administrator negotiates the contracts and the Board is “just supposed to sign them.”

8.  At the April 23, 2018 Board meeting, Nutter again discussed his wife’s unsigned contract. Speaking as a Selectman, he told his Board colleague, “It’s your responsibility to sign these things, and like always, you keep putting things off and don’t want to do your job. It’s unfair to the taxpayers of this town, where you are supposed to represent them, and you are supposed to execute these contracts.”

9.  Nutter’s Board colleague did not sign the contract.

10.  The Board members did not express any concerns about Nutter’s wife’s ability to competently perform the duties of Treasurer/Collector.

Conclusions of Law

Section 19

11.  Except as otherwise permitted, § 19 of G.L. c. 268A prohibits a municipal employee from participating¹  as such an employee in a particular matter²  in which, to his knowledge, he or an immediate family member³  has a financial interest⁴.

12.   As a member of the Board, Nutter was a municipal employee as that term is defined in G.L. c. 268A, § 1(g). 

13.  Nutter’s wife is a member of his immediate family.

14.  The Board’s decision whether to approve Nutter’s wife’s April 10, 2018 employment contract was a particular matter.

15.  Nutter’s wife, as a paid municipal employee, had a financial interest in the particular matter of the Board’s approval of her employment contract. 

16.  Nutter participated in this particular matter as a municipal employee by, during the April 17, 2018 and April 23, 2018 Board meetings, as a Selectman discussing the fact that his Board colleague had not signed his wife’s contract and asserting that it was her duty and responsibility as a Board member to do so.

17.  When he participated as a Board member in this particular matter, Nutter knew that his wife had a financial interest in whether her employment contract was approved by the Board.

18.  Therefore, by participating as a Board member in the Board’s decision whether to approve his wife’s employment contract, Nutter participated as a municipal employee in a particular matter in which he knew his immediate family member had a financial interest. In so doing, Nutter violated § 19.

Section 23(b)(2)(ii)

19.  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 value⁵,  and which are not properly available to similarly situated individuals.

20.  Having her April 10, 2018 municipal employment contract approved by the Board would have been a privilege of substantial value for Nutter’s wife, because under the contract she would have been paid a base salary of $81,000 for serving as Town Treasurer/Collector.

21.  The privilege would have been unwarranted had the Board approved the contract due to undue pressure upon or intimidation of a Board member by Nutter.

22.  By, as a Board member, publicly berating his Board colleague for not signing the contract, Nutter knowingly or with reason to know used his official position to attempt to secure the privilege for his wife through undue pressure and intimidation. 

23.  The privilege was not properly available to Nutter’s wife or to other similarly situated individuals because no Town employees are lawfully entitled to have their employment contracts approved by the Board as a result of intimidation or undue pressure by a member of the Board.

24.  Therefore, by, as a Board member, criticizing his Board colleague for not signing his wife’s employment contract, Nutter, knowingly or with reason to know, attempted to use his official position to secure for his wife a privilege of substantial value that was not properly available to similarly situated individuals. In so doing, Nutter violated § 23(b)(2)(ii).

C. Voting to Approve His Wife’s Appointment

Findings of Fact

25.  On June 25, 2018, the Board had not approved Nutter’s wife’s employment contract. Her existing contract was scheduled to expire five days later.

26.  On June 25, 2018, the then Interim Town Administrator submitted a list of proposed one-year and three-year appointed employees to the Board, pursuant to the Town Charter. Nutter’s wife was included on the list as a proposed three-year appointment to the Town Treasurer/Collector position.

27.  Nutter knew that his wife was included on the list of proposed appointments.

28.  Nutter voted in favor of approving the list of appointments. The Board unanimously approved the list of appointments.

Conclusions of Law

Section 19

29.  The Board’s decision to accept the Town Administrator’s proposed appointments was a particular matter. 

30.  As Town Treasurer/Collector is a compensated position, Nutter’s wife had a financial interest in the Board’s decision to accept the Town Administrator’s proposed appointment of her.

31.  Nutter participated in the particular matter as Board chair by voting to approve the appointments.

32.  When he participated as Board chair in the particular matter, Nutter knew that his wife’s appointment was included on the list of appointments, and that she was otherwise without a contract on June 30, 2018. 

33.  Therefore, by participating as Board chair in the Board’s decision and vote to approve the Town Administrator’s appointments, Nutter participated as a municipal employee in a particular matter in which he knew his immediate family member had a financial interest. In so doing, Nutter violated § 19. 

D. Discussing Grievance that Named Nutter’s Wife

Findings of Fact

34.  On February 12, 2018, a town employee filed a grievance with the Board against the former Town Administrator. Part of the grievance related to an allegation that the former Town Administrator authorized time sheets for some Town employees, including the “Tax Collector/Treasurer,” that claimed they worked forty hours each week when they, in fact, worked fewer than forty hours.

35.  Nutter knew that his wife was named in the grievance as a town employee who allegedly was allowed to file false time sheets. 

36.  On September 10, 2018, the Board met for approximately one hour in executive session to discuss the grievance.

37.  Nutter personally and substantially involved himself, as Board chair, in discussing the merits of the allegations despite having been asked to recuse himself by another Board member. The grievance was not resolved during the executive session.

38.  On December 3, 2018, the Board extensively discussed the grievance during its public meeting. Nutter personally and substantially involved himself, as Board chair, in discussing the merits of the allegations. Speaking as Board chair, Nutter stated his opinion that the alleged conduct did not constitute fraud and asserted that the allegations had already been investigated by two outside attorneys. Nutter voted against authorizing an independent investigation into the allegations. The majority of the Board members voted to authorize an independent investigation.

Conclusions of Law

Section 19

39.  Nutter’s wife is a member of his immediate family.

40.  The Board’s decisions to investigate the grievance, and the decision whether to authorize an independent investigation, were particular matters.

41.  As a compensated municipal employee who was a subject of the grievance allegations and a potential subject of investigation, Nutter’s wife had a financial interest in these particular matters.

42.  Nutter participated in these particular matters by, as Board chair, discussing the merits of the allegations at the September 3, 2018 executive session and at the December 3, 2018 Board meeting, and by voting against authorizing an independent investigation into the claims at the December 3, 2018 Board meeting.

43.  When he participated as Board chair in these particular matters, Nutter knew that his wife had a financial interest in an investigation of the allegations. 

44.  Therefore, by participating as Board chair in the Board’s decisions of whether investigate the Town employee’s claims and whether to authorize an independent investigation, Nutter participated as a municipal employee in particular matters in which he knew his immediate family member had a financial interest. In so doing, Nutter violated § 19. 

Resolution

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

(1)that Nutter pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $6,000 as a civil penalty for violating G.L. c. 268A, §§ 19 and 23(b)(2)(ii); and

(2)that Nutter 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.

^[1] “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).

^[2] “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).

^[3] “Immediate family” means the employee and his spouse, and their parents, children, brothers and sisters.  G.L. c. 268A, § 1(e).

^[4] “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.

^[5] “Substantial value” is $50 or more.