Settlement  In the Matter of Daniel O'Connell

Date:	05/16/2019
Organization:	State Ethics Commission
Docket Number:	19-0004
Location:	Boston, MA

The Commission approved a Disposition Agreement in which Daniel O'Connell, former Superintendent-Director of the North Shore Technical High School and Essex North Shore Agricultural & Technical School districts, admitted to violating sections 19 and 23 of the conflict of interest law by directing a subordinate to reinstate his expired  stipend; by giving his son pay raises and increased opportunities to work overtime; by allowing his son to use a school truck for private business; by using his position to pressure a plumbing supply company in a personal dispute; and by ordering school employees to use public worktime and resources to deliver surplus bricks to his home. O'Connell paid a $23,000 civil penalty.

Disposition Agreement

The State Ethics Commission (“Commission”) and Daniel O’Connell (“O’Connell”) 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 December 15, 2016, 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 May 17, 2018, the Commission concluded its inquiry and found reasonable cause to believe that O’Connell violated G.L. c. 268A, §§ 19 and 23.

The Commission and O’Connell now agree to the following findings of fact and conclusions of law:

Findings of Fact

1.            From 2010 to 2014, O’Connell was the Superintendent-Director of the North Shore Technical High School District (“North Shore”) in Middleton.  O’Connell’s appointing authority was the North Shore Technical High School District School Committee (“North Shore School Committee”).

2.            In 2012, construction began on Essex North Shore Agricultural & Technical High School (“Essex Tech”), a merger of North Shore, Peabody Technical High School and Essex Agricultural and Technical High School. 

3.            The North Shore campus closed in or about June 2014. 

4.            The Essex Tech campus opened in September 2014. 

5.            In March 2013, prior to the opening of Essex Tech, O’Connell was hired to be the Superintendent-Director of the Essex North Shore Agricultural & Technical School District.  His appointing authority was the Essex North Shore Agricultural & Technical School District School Committee (“Essex Tech School Committee”).  

6.            From 2013 to 2014, O’Connell was Superintendent-Director of both the North Shore and Essex Tech school districts. 

7.            From July 2014 to 2015, O’Connell was the Superintendent-Director of the newly merged Essex Tech school district. 

O’Connell’s Son at North Shore

8.            In October 2010, O’Connell’s son was hired as an outside maintenance worker by North Shore.

9.            On October 20, 2010, O’Connell completed M.G.L. c. 268A, §§ 19 and 23 (b)(3) disclosure forms.  In the disclosure forms, O’Connell stated that the Principal and the Facilities Director hired his son and the Principal handled all postings and interviews and made his recommendation for hire.

10.          In or about July 2012 and July 2013, O’Connell, as North Shore Superintendent-Director, determined the amount of and approved pay raises for the custodial staff including his son for the 2012-2013 and 2013-2014 school years respectively. 

11.          O’Connell did not disclose to his appointing authority, the North Shore School Committee, that he was acting as Superintendent-Director on his son’s pay raise and did not receive the committee’s approval to so act.

O’Connell’s Son at Essex Tech

12.          From September 2014 to the present, O’Connell’s son has been employed by Essex Tech as an outside maintenance worker, a position without supervisory duties.

13.          Prior to January 2015, the Maintenance Supervisor at Essex Tech managed snow removal at the school; assessing the school’s snow removal needs and scheduling the necessary maintenance workers.

14.          As of January 2015, other maintenance workers at Essex Tech, including the Maintenance Supervisor, had more snow removal experience and expertise than O’Connell’s son, who did not have any special experience with or expertise regarding snow removal at the school.

15.          On or after January 2015, O’Connell, as Essex Tech Superintendent-Director, changed how snow removal would be managed at Essex Tech.  O’Connell directed that, in the event of a snowstorm, his son was to supervise the snow removal.

16.          O’Connell, by assigning his son to supervise the snow removal, caused his son to accrue more snow removal overtime than other employees. 

17.          From January to March 2015, O’Connell’s son worked 121.5 hours of overtime and earned $4,753.08 in overtime pay.  In doing so, he worked more than 37 more hours of overtime and earned $1,500 more in overtime pay than any other Essex Tech maintenance worker.

18.          In or about June 2015, O’Connell, as Essex Tech Superintendent-Director, authorized his son to use an Essex Tech-owned vehicle for his son’s private business.

19.          O’Connell’s son’s use of the school vehicle for a private purpose was not duly authorized by law, regulation, or policy.

20.          The value of the use of the school truck was $50 or more.

21.          O’Connell did not disclose to his appointing authority, the Essex Tech School Committee, that he was acting as Superintendent-Director on management, overtime and school vehicle matters involving his son and did not receive the committee’s approval to so act.

O’Connell’s Stipend

22.          In March 2013, when O’Connell was hired as the Superintendent-Director of Essex Tech, the Essex Tech School Committee voted to authorize a $20,000 stipend for O’Connell, in addition to his salary at North Shore, for holding both positions.  The Essex Tech School Committee authorized O’Connell to receive the stipend until June 30, 2014, when North Shore would close, and O’Connell would no longer have two roles.

23.          O’Connell received the stipend until June 30, 2014, when the stipend stopped.  O’Connell did not receive the stipend from July to September 2014.

24.          In October 2014, O’Connell, as Essex Tech Superintendent-Director, directed the Essex Tech Business Manager, his subordinate, to reinstate his stipend and make it retroactive to July 2014. 

25.          The Business Manager reinstated O’Connell’s stipend in October 2014.

26.          The reinstatement of O’Connell’s stipend in October 2014 was not authorized by the Essex Tech School Committee, although it required such authorization.

27.          O’Connell did not disclose to his appointing authority, the Essex Tech School Committee, that he was acting as Superintendent-Director on the matter of his stipend.

Salem Plumbing

28.          In or about February 2015, Salem Plumbing, a wholesale and retail supply company, was a vendor doing business with Essex Tech.

29.          In or about February 2015, O’Connell purchased $1,200 in bathroom fixtures from Salem Plumbing for his home.  O’Connell was dissatisfied with the purchased fixtures.

30.          On February 21, 2015, O’Connell wrote an email on his School account to the President of Salem Plumbing, and proposed that Salem Plumbing replace the fixtures in O’Connell’s home at no cost to O’Connell.  O’Connell requested the replacement in exchange for “continu[ing] our business partnership.”  O’Connell stated that “between our personal purchases and my business purchases we have spent between 70 to 90 thousand dollars at Salem plumbing this year.”  O’Connell’s signature included his title “Superintendent-Director.” 

31.          On February 23, 2015, Kevin Dash, a Salem Plumbing employee, submitted a bid for an Essex Tech purchase via email to O’Connell.  

32.          O’Connell responded to Dash via email that read, “Sorry Kevin no bids accepted from sal [sic] plumbing until my situation is resolved.”  O’Connell’s email was sent from his Essex Tech email account with his signature and title “Superintendent-Director.”  “[M]y situation” referred to O’Connell’s dissatisfaction with the fixtures purchased from Salem Plumbing for his home.

33.          Thereafter, Salem Plumbing replaced approximately $1,200 worth of fixtures in O’Connell’s home at no cost to him.

34.          O’Connell did not file a disclosure with the Essex Tech School Committee regarding his personal business relationship and official dealings with Salem Plumbing.

The Bricks

35.          In or about November 2014, the former campus of North Shore was sold to private developers.

36.          In the spring of 2015, the developers gave surplus bricks at the former campus to O’Connell. 

37.          O’Connell, as Essex Tech Superintendent and Director, directed Essex Tech workers to load the bricks into a school-owned truck and transport the bricks to O’Connell’s residence. 

38.          The Essex Tech workers loaded and transported the bricks during their regularly-scheduled work hours.

39.          The value of the use of the school truck and the time of the Essex Tech workers to load and transport the bricks to O’Connell’s home was $50 or more.

40.          O’Connell did not disclose to his appointing authority, the Essex Tech School Committee, that, as Superintendent-Director, he was directing school employees to use a school truck and school work time to transport bricks to his home.

Conclusions of Law

41.          O’Connell, both as Superintendent-Director of North Shore and as the Superintendent-Director of Essex Tech, was a municipal employee as that term is defined in G.L. c. 268A, § 1 (g). 

Section 19

42.          Except as otherwise permitted¹,  § 19 of G.L. c. 268A prohibits a municipal employee from participating²  as such an employee in a particular matter³  in which, to his knowledge, he, or an immediate family member³  has a financial interest⁵.

Son’s Pay Raises

43.          O’Connell’s decisions in July 2012 and 2013 to raise his son’s pay were particular matters because they were determinations regarding compensation. 

44.          O’Connell participated in these particular matters as a municipal employee by making the decision as North Shore Superintendent-Director to raise his son’s pay.

45.          O’Connell’s son is a member of O’Connell’s immediate family.

46.          O’Connell’s son had a financial interest in the particular matters of his pay raises.

47.          At the time of his participation, O’Connell knew that his son had a financial interest in the particular matters of his pay raises.

48.          Accordingly, by participating as North Shore Superintendent-Director in the particular matters of his son’s pay raises, O’Connell violated § 19.

Son’s Overtime

49.          O’Connell’s decisions as Essex Tech Superintendent-Director in or about January 2015 to change how snow removal was managed at Essex Tech and to assign his son to manage that snow removal were particular matters.

50.          O’Connell participated in these particular matters as a municipal employee by making the decision as Essex Tech Superintendent-Director to change the existing practice and to place his son in charge of snow removal during the winter of 2015.

51.          O’Connell’s son had a financial interest in these particular matters because they related to his ability to earn overtime pay.

52.          At the time of his participation, O’Connell knew that his son had a financial interest in the snow removal management particular matters.

53.          Accordingly, by participating as Superintendent-Director in the particular matters concerning the management of snow removal at Essex Tech, O’Connell violated § 19.

Section 23(b)(2)

54.          Section 23(b)(2) of G.L. c. 268A prohibits a municipal employee from knowingly or with reason to know (i) soliciting or receiving anything of substantial value⁶  for such officer or employee, which is not otherwise authorized by statute or regulation, for or because of the officer or employee's official position; or (ii) using or attempting to use such official position to secure for such officer, employee or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.

Reinstatement of Stipend

55.          By, as Essex Tech Superintendent-Director, directing the Business Manager to reinstate his stipend without the authorization of the full School Committee for holding two superintendent positions and by receiving the stipend, O’Connell knowingly or with reason to know solicited and received something because of his official position.

56.          The reinstatement of the stipend was not otherwise authorized by statute or regulation.

57.          The reinstatement of the stipend was unwarranted because the Essex Tech School Committee did not approve O’Connell’s receipt of a stipend after June 30, 2014.

58.          The reinstated stipend was of substantial value because it was more than $50.00.

59.          Accordingly, by, as Essex Tech Superintendent-Director, directing the Business Manager to reinstate his stipend for holding two superintendent positions and by receiving the stipend, O’Connell knowingly or with reason to know solicited and received something of substantial value for himself, which was not otherwise authorized by statute or regulation, for or because of his official position in violation of § 23(b)(2)(i).

60.          In addition, by using his official position as Essex Tech Superintendent-Director to direct the Business Manager to reinstate his stipend, O’Connell knowingly or with reason to know used his Superintendent-Director position to secure for himself an unwarranted privilege of substantial value not properly available to other similarly situated individuals in violation of § 23(b)(2)(ii).

Son’s Overtime

61.          The opportunity to manage snow removal at Essex Tech and earn extra compensation is a privilege.

62.          The privilege was unwarranted for O’Connell’s son because he was not a supervisor and, unlike other maintenance workers with greater qualifications and more experience, did not have any special experience or expertise regarding snow removal or management at the school.

63.          This privilege was of substantial value because it allowed O’Connell’s son to work more overtime hours than he would otherwise have had and earn $1,500 more than any other worker.

64.          This privilege was not properly available to similarly situated individuals no other maintenance worker was assigned by O’Connell to supervise the snow removal.

65.          By assigning his son to supervise snow removal, O’Connell used his official position to secure an unwarranted privilege for his son.

66.          Accordingly, by using his official position as Essex Tech Superintendent-Director to change the existing snow removal procedure, O’Connell knowingly or with reason to know used his Superintendent-Director position to secure for his son an unwarranted privilege of substantial value not properly available to other similarly situated individuals in violation of § 23(b)(2)(ii).

Son’s Use of School Truck

67.          The opportunity to use a school-owned truck was a privilege.

68.          When O’Connell granted his son this privilege for his son’s personal business, the privilege was unwarranted because it was the use of a public resource for a private purpose.

69.          This privilege was of substantial value because the use of the truck was worth $50 or more.

70.          This privilege was not properly available to similarly situated individuals because private use of public property is not lawful unless it is duly authorized by law, regulation, or policy.

71.          By, as Essex Tech Superintendent-Director, allowing his son to use a school vehicle for a private purpose, O’Connell used his official position to secure this unwarranted privilege for his son.

72.          Accordingly, by using his official position as Essex Tech Superintendent-Director to allow his son to use a school vehicle for a private purpose, O’Connell knowingly or with reason to know used his Superintendent-Director position to secure for his son an unwarranted privilege of substantial value not properly available to other similarly situated individuals in violation of § 23(b)(2)(ii).

O’Connell’s Use of Position in Private Dispute with Salem Plumbing

73.           The opportunity to use the title of “Superintendent-Director” is a privilege.

74.          O’Connell’s use of his position as Essex Tech Superintendent-Director in his private dealings with Salem Plumbing, including his refusal to take bids from Salem Plumbing until the resolution of his private dispute with the company over $1,200 worth of bathroom fixtures, was unwarranted and not properly available to similarly situated persons because an official position and title may only be used in the public interest and not for private purposes.

75.          This unwarranted privilege of using his official title for his private purposes was of substantial value because it gave O’Connell substantial leverage in his dispute with Salem Plumbing over $1,200 worth of bathroom fixtures, which was resolved with Salem Plumbing’s replacement the fixtures at no cost to O’Connell.

76.          Accordingly, by using his official position as Essex Tech Superintendent-Director in his private dealings with Salem Plumbing to apply pressure on the company to satisfy his demands, O’Connell knowingly or with reason to know used his Superintendent-Director position to secure for himself an unwarranted privilege of substantial value for himself that are not properly available to other similarly situated individuals in violation of § 23(b)(2)(ii).

O’Connell’s Use of School Resources

77.          The opportunity to use a school-owned truck and public employee staff time is a privilege.

78.          When O’Connell, as Essex Tech Superintendent-Director ordered school employees to use the school-owned vehicle to transport bricks to his home, the privilege was unwarranted because it was the use of a public resource for a private purpose.

79.          This privilege was of substantial value because the value of the use of the school truck and the time of the Essex Tech workers to load and transport the bricks to O’Connell’s home was $50 or more.

80.          This privilege was not properly available to similarly situated individuals, those in need of transportation of bricks, because private use of the work time of public employees and publicly-owned vehicles is not lawful unless it is duly authorized by law, regulation, or policy.

81.          By directing Essex Tech employees to perform private work on public work time and use a school vehicle for a private purpose, O’Connell used his official position to secure this unwarranted privilege for himself.

82.          Accordingly, by using his official position as Essex Tech Superintendent-Director to direct school employees to use a school-owned truck to transport bricks to his home, O’Connell knowingly or with reason to know used his Superintendent-Director position to secure for himself an unwarranted privilege of substantial value not properly available to other similarly situated individuals in violation of § 23(b)(2)(ii).

Section 23(b)(3)

83.          Section 23(b)(3) of G.L. c. 268A prohibits a municipal 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.

84.          By taking official action as Essex Tech Superintendent-Director concerning Salem Plumbing while engaged in private dealings with the company, O’Connell knowingly or with reason to know acted in a manner which would cause a reasonable person, having knowledge of his private dispute with the company, to conclude that O’Connell would act unfavorably towards the company in the performance of his official duties.  O’Connell did not disclose in writing his private dealings with Salem Plumbing to his appointing authority, the Essex Tech School Committee, to dispel this appearance of impropriety.  In so acting, O’Connell violated G.L. c. 268A, § 23(b)(3). 

Resolution

In view of the foregoing violations of G.L. c. 268A by O’Connell, 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 O’Connell:  

1. that O’Connell pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $23,000 as a civil penalty for violating G.L. c. 268A, §§ 19 and 23; and
    
2. that O’Connell 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, O’Connell acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to all terms and conditions therein.

^[1] None of the exemptions applies.

^[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] “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).

^[4] “Immediate family” means the employee and his spouse, and their parents, children, brothers, and sisters.  G.L. c. 268A, § 1(e).

^[5] “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.  EC-COI-84-98.  The interest can be affected in either a positive or negative way.  EC-COI-84-96.

^[6] “Substantial value” is $50.00 or more. 930 CMR 5.05.