Settlement  Disposition Agreement in the Matter of William Fahey

Date:	06/26/2023
Organization:	State Ethics Commission
Docket Number:	23-0008
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Disposition Agreement

The State Ethics Commission (“Commission”) and William Fahey (“Fahey”) 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 March 17, 2022, 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 October 20, 2022, the Commission voted to amend the preliminary inquiry.  On January 26, 2023, the Commission concluded its inquiry and found reasonable cause to believe that Fahey violated G.L. c. 268A, §§ 17(a), 19, 23(b)(2)(i), and 23(b)(2)(ii).

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

Findings of Fact

1. Fahey was the Director of Andover Youth Services (AYS) from 1994 until his termination in May 2021.  At all relevant times, AYS was a division of the Town of Andover.  In 2016, AYS became part of the town’s Community Services Department.
2. As Director of AYS, Fahey was a full-time, salaried municipal employee of the Town of Andover.
3. Fahey’s duties as Director of AYS, as described in his official job description, included frequent evening and weekend work. 

4. The Andover Youth Foundation (AYF) is a private, non-profit organization based in Andover.  Certain Andover residents formed AYF in 2000 to fund programming and a youth center for AYS.

5. The Hurston Family Foundation, Inc. (HFF) is a private, non-profit organization based in Andover. 

6. In or around May 2016, Fahey and Glenn Wilson (“Wilson”), the Assistant Director of AYS, met with the President of HFF. 

7. At that meeting, the President of HFF proposed that HFF would provide funding to support AYS building maintenance, programming, and staff. 
8. Subsequently, HFF, AYF, Fahey, and Wilson agreed that HFF would remit such funding to AYF, which would in turn disburse funds for AYS building maintenance, programming, and staff.
9. HFF made its first such donation in May 2016 and earmarked $3,000 of the $10,000 donation for “six individuals” “in $500 increments,” specifying Fahey, Wilson, and four other AYS staff members.
10. Thereafter, beginning in the fall of 2016 and continuing through the end of 2020, in nine additional donations to AYF, HFF paid money designated for AYS staff, including Fahey, which the parties referred to, in funding letters and otherwise, as “merit pay” or “merit-based compensation” (the “Private Compensation”).
11. From November 2016 through September 2020, for each of these nine subsequent HFF donations, at the request of HFF, Fahey, in his capacity as Director of AYS, signed a letter to the President of HFF on AYS letterhead, which described how AYS would use and allocate each donation (the “Funding Letters”). 
12. Fahey used his andoverma.gov email account to submit Funding Letters to HFF. 
13. Each Funding Letter stated that the whole HFF donation was subject to the condition that “Bill Fahey, Executive Director, remains as such.”
14. Each Funding Letter explained that AYS would use part of each HFF donation to provide “merit-based compensation” to “recognize the exceptional commitment to the young people by our full time... team.”
15. Each Funding Letter provided a schedule of AYS staff who would receive Private Compensation from each HFF donation, listing the amount of Private Compensation for each employee and each employee’s AYS job title (the “Merit Pay Schedule”). 
16. Fahey supplied the names and job titles of AYS staff for each Merit Pay Schedule. 
17. Each Merit Pay Schedule listed Fahey in his capacity as Director.
18. With each Funding Letter that he signed, Fahey could see and understand that he would receive Private Compensation in connection with his job as Director of AYS. 
19. Between 2016 and 2021, Fahey distributed checks, provided by and drawn on an account of AYF, to disburse ten rounds of Private Compensation to AYS staff. 
20. Between 2016 and 2021, Fahey completed the payee and amount fields of at least 30 AYF checks provided to him by the President or Treasurer of AYF for various expenses, including for disbursing the Private Compensation. 
21. Between 2016 and 2021, Fahey personally received ten payments of Private Compensation, totaling $16,500. 

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 matter in which the municipality is a party or has a direct and substantial interest.
23. As Director of AYS, Fahey was a municipal employee pursuant to G.L. c. 268A, § 1(g).
24. Fahey’s contract of employment with the Town of Andover was a particular matter to which the town was a party and in which it had a direct and substantial interest.
25. From 2016 to 2021, Fahey received, from HFF through AYF, ten payments of Private Compensation in relation to his employment as Director of AYS, totaling $16,500.
26. Fahey’s receipt of this Private Compensation was not as provided by law for the proper discharge of his official duties as Director of AYS.
27. By receiving Private Compensation in relation to his employment as Director of AYS from HFF through AYF, Fahey received compensation from someone other than the Town of Andover in relation to a particular matter to which the town was a party and in which it had a direct and substantial interest.  In so doing, Fahey repeatedly violated G.L. c. 268A, § 17(a).

Section 19

28. Section 19 prohibits a municipal employee from participating as such an employee in a particular matter in which, to his knowledge, he has a financial interest. 
29. Each decision to designate HFF funds as “merit-based compensation” in connection with AYS work was a particular matter. 
30. Fahey, as Director of AYS, participated in each decision to designate HFF funds as “merit-based compensation” by signing each Funding Letter, providing the names and job titles of AYS staff for each Merit Pay Schedule, and accepting and allocating the payments, sometimes by completing the payee and amount fields on their checks himself. 
31. Fahey knew he had a financial interest in each decision to designate HFF funds as “merit-based compensation” because he supplied his own name and AYS job title on each Merit Pay Schedule. 
32. Accordingly, Fahey repeatedly violated G.L. c. 268A, § 19 through his actions in connection with each decision to designate HFF funds as “merit-based compensation” in connection with AYS work. 

Section 23(b)(2)(i)

33. Section 23(b)(2)(i) of G.L. c. 268A prohibits a municipal employee from knowingly, or with reason to know, receiving anything of substantial value for such employee, which is not otherwise authorized by statute or regulation, for or because of the employee’s official position. 
34. Fahey, while a municipal employee, received, from HFF through AYF, ten Private Compensation payments which were, in each instance, worth $50 or more and therefore of substantial value.
35. Fahey knew, or had reason to know, that the Private Compensation payments were for or because of his official position as Director of AYS, as the Funding Letters stated that the “merit-based compensation” was for AYS staff and listed Fahey, together with his AYS job title, on the Merit Pay Schedule. 
36. Each of the Private Compensation payments Fahey received was not authorized by statute or regulation. 
37. Therefore, by knowingly, or with reason to know, receiving the Private Compensation payments for or because of his official position, Fahey repeatedly violated G.L. c. 268A, § 23(b)(2)(i). 

Section 23(b)(2)(ii)

38. 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.
39. Fahey, in his capacity as Director of AYS, signed nine Funding Letters designating HFF funding as “merit-based compensation” for AYS staff.  Fahey distributed this Private Compensation to AYS staff, sometimes filling in the payee and amount fields on their AYF checks himself. 
40. Each receipt of Private Compensation by AYS staff was a privilege of substantial value and was unwarranted because the payments related to their work for a municipal department and were unapproved by the town.
41. Fahey knew, or had reason to know, that he was using his official position to secure each unwarranted privilege because he signed the Funding Letters in his capacity as Director of AYS, supplied the names and job titles of AYS staff for the Merit Pay Schedules, and disbursed the Private Compensation payments, including through AYF checks he sometimes completed himself.
42. Each unwarranted privilege was not properly available to AYS staff and was not available to other Community Services Department staff or other similarly situated individuals.
43. Therefore, by, as Director of AYS, signing the Funding Letters, supplying the names and job titles of AYS staff for the Merit Pay Schedules, and disbursing the Private Compensation payments, Fahey knowingly, or with reason to know, used his official position to secure for himself and others unwarranted privileges of substantial value that were not properly available to similarly situated individuals.  In so doing, Fahey repeatedly violated G.L. c. 268A, § 23(b)(2)(ii).

Disposition

In view of the foregoing violations of G.L. c. 268A by Fahey, 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 Fahey:

(1)        that Fahey pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $20,000 as a civil penalty for violating G.L. c. 268A, §§ 17, 19, 23(b)(2)(i), and 23(b)(2)(ii); and

 (2)       that Fahey 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, Fahey 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.

STATE ETHICS COMMISSION