Settlement  In the Matter of David Celino

Date:	09/23/2010
Organization:	State Ethics Commission
Docket Number:	10-0022

Disposition Agreement

The State Ethics Commission (the "Commission") and David Celino ("Celino") enter into this Disposition Agreement pursuant to Section 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, § 4(j).

On March 19, 2010, 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, by Celino. The Commission has concluded its inquiry and, on July 16, 2010, found reasonable cause to believe that Celino violated G.L. c. 268A.

The Commission and Celino now agree to the following findings of fact and conclusions of law.

Findings of Fact

1. At all relevant times, Celino has been the Chief Fire Warden for the Department of Conservation and Recreation ("DCR"). As such, Celino has authority over the entire DCR Bureau of Forest Fire Control. Celino's appointing authority is the DCR Deputy Commissioner.

2. In August 2008, there was an opening for a firefighter in DCR District 8 ("District 8). The ultimate responsibility for hiring decisions for firefighters in the Bureau of Forest Fire Control rested with Celino and the DCR Commissioner.

3. Celino reviewed the list of applicants for the District 8 firefighter position and noted that two of the candidates were his friends. Celino met with his subordinate, the District 8 warden, to discuss the firefighter hiring process. Celino told the District 8 warden that he was going to stay out of the hiring process.

4. A screening committee, without Celino's participation, conducted first and second interviews and ultimately recommended a candidate for the District 8 firefighter position. The recommended candidate was not one of Celino's friends.

5. Upon learning of the recommendation, Celino informed the District 8 warden that he had issues with the recommended candidate, and questioned why his friends did not receive second-round interviews.

6. Celino subsequently reviewed the interview packets, and determined that the process did not fully comply with a newly instituted DCR hiring policy mandating that a human resources staff member participate in the interview process. Celino brought his concern about the hiring process to his supervisor and the DCR Director of Administration and Finance. He did not disclose his friendship with two of the candidates for the firefighter position to his appointing authority, the DCR Deputy Commissioner.

7. Ultimately, Celino's supervisors decided to repost the position. The position, however, was not filled due to budget constraints.

Conclusions of Law

8. As the DCR Chief Fire Warden, Celino was at all times relevant to this matter a state employee as defined in G.L. c. 268A, § 1.

9. Section 23(b)(3) of G.L. c. 268A prohibits a state 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.

10. By participating, in his capacity as DCR Chief Fire Warden, in the hiring process for the District 8 firefighter position, while two friends of his were candidates for the position, Celino knowingly, or with reason to know, acted in a manner which would cause a reasonable person, having knowledge of all the relevant circumstances, to conclude that his two friends could unduly enjoy his favor in the performance of his official duties. Celino did not file any § 23(b)(3) disclosure to dispel this appearance of impropriety. Therefore, in so acting, Celino violated § 23(b)(3).

11. Celino argues that it was incumbent on him as the Chief Fire Warden to point out to his supervisors the procedural irregularity in the hiring process - the absence of a human resources staff member participating in the interview process. It is unclear, however, whether Celino's motive was to ensure procedural regularity or the hiring of one of his friends. In any event, even assuming Celino was obligated to raise the procedural issue, he was also obligated to disclose that two of his friends were candidates for the position.

Resolution

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

(1) that Celino pay to the Commonwealth of Massachusetts, with such payment delivered to the Commission, the sum of $500 as a civil penalty for violating G.L. c. 268A, § 23(b)(3); and

(2) that Celino 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.