Settlement  In the Matter of Armand Gagne

Date:	08/22/1996
Organization:	State Ethics Commission
Docket Number:	558

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into between the State Ethics Commission ("Commission") and Armand Gagne ("Gagne") pursuant to s.5 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, s.4(j).

On September 13, 1994, the Commission initiated, pursuant to G.L. c. 268B, s.4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Gagne. The Commission has concluded its inquiry and, on July 11, 1995, found reasonable cause to believe that Gagne violated G.L. c. 268A.

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

Findings of Fact

This Disposition Agreement ("Agreement") is entered into between the State Ethics Commission ("Commission") and Armand Gagne ("Gagne") pursuant to s.5 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, s.4(j).

On September 13, 1994, the Commission initiated, pursuant to G.L. c. 268B, s.4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Gagne. The Commission has concluded its inquiry and, on July 11, 1995, found reasonable cause to believe that Gagne violated G.L. c. 268A.

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

Conclusions of Law

14. Section 19 of G.L. c. 268A prohibits a municipal employee from participating[5] as such an employee in a particular matter[6] in which to his knowledge he has a financial interest.

15. The decisions and determinations by the Board of Selectmen to authorize payment of Gagne's tuition, and to transfer funds to the tuition reimbursement account, were particular matters.

16. Gagne participated as a selectman in each such decision and determination as follows: by approving the tuition invoices for payment as "Department Head"; by signing the treasury warrants after personally ensuring that the tuition payments would be included therein;[7] and by moving to have funds transferred or explaining such transfers at special Town Meetings.

17. As a student enrolled at Suffolk University, Gagne knew that he had a financial interest in these particular matters because they would result in his tuition being paid.

18. Accordingly, by participating in his official capacity in the decisions to authorize tuition payments and to transfer funds to the tuition reimbursement account, particular matters in which he had a financial interest, Gagne violated G.L. c. 268A, s.19.

19. Gagne fully cooperated with the Commission throughout its investigation.

Resolution

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

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(1) that Gagne pay to the Commission the sum of five thousand dollars ($5,000) as a civil penalty for his course of conduct in violating G.L. c. 268A, s.19; and

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

[1] Gagne did not seek re-election as a selectman, pending resolution of this matter.

[2] The warrants are dated as follows: April 3, 1991; July 3, 1991; November 6, 1991; February 12, 1992; July 22, 1992; August 19, 1992; August 26, 1992; September 30, 1992; and December 30, 1992. Three of the warrants were authorized by Gagne and only one other selectman. The other six were signed by all three selectmen.

[3] The town appropriated $4,800 for each of fiscal years 1991, 1992, and 1993, and transferred an additional $10,000 for fiscal year 1993, as described above.

[4] Suffolk University reimbursed the town $187 after Gagne challenged the imposition of a $225 executive fee. Thus, there is a $187 difference between tuition costs approved on the nine treasury warrants, $22,447, and the tuition actually paid, $22,260.

[5] "Participate," 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, s.1(j).

[6] "Particular matter," 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, s.1(k).

[7] Ordinarily, the signing of a treasury warrant for payroll without more does not amount to participation. EC-COI-87-32 (signing payroll warrant is not personal and substantial participation unless the payroll item is in dispute; signing the warrant is peripheral to certification of the hours worked and included therein). In this case, however, Gagne sighed each treasury warrant after personally certifying his own tuition invoices to be included therein, thereby ensuring at every step that his tuition would be paid. See also id. footnote 2 (This opinion is limited to the certification of a payroll by an appointing authority which does not actively supervise employees").

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