Settlement  In the Matter of Donald S. Pottle

Date:	02/04/1983
Organization:	State Ethics Commission
Docket Number:	191

Disposition Agreement

This disposition agreement ("agreement") is entered into
between the State Ethics Commission ("Commission") and Donald S.
Pottle ("Mr. Pottle") pursuant to section 11 of the Commission's
Enforcement Procedures. This agreement constitutes a consented to
final Commission order enforceable in the Superior Court pursuant
to G.L. c. 268B, s.4(d).

On April 15,1982, the Commission initiated a preliminary
inquiry into whether Donald Pottle, director of the state's Waste
Water Treatment Plant Operators Training Program ("OTP"), violated
G.L. c. 268A with respect to his association, financial interests,
and activities on behalf of Environmental Engineering Services,
Inc. ("EES"), a private firm which conducted programs similar to
OTP. The Commission concluded that preliminary inquiry and on
January 11, 1983, found reasonable cause to believe that Mr. Pottle
violated G.L. c. 268A, s.s.4(a), 4(c), 23(a), 23(d), and 23(e). The
parties now agree to the following findings of fact and conclusions
of law:

Findings of Fact

1. Mr. Pottle was the state's OTP director from 1972 to March
1982. The OTP's purpose is to provide training to individuals
responsible for the operation of waste water treatment plants
("'WWTP's"). In addition, the OTP provides review and upgrading
sessions to enable individuals to pass the state's certification
examinations required for persons in charge of public or private
WWTP's.

2. As OTP director, Mr. Pottle was responsible for scheduling
courses, scheduling applicants, developing course curriculum and
related materials. In addition, Mr. Pottle acted as the primary
instructor for the OTP basic advanced courses. The OTP basic and
advanced courses

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were generally given by Mr. Pottle twice per year and were open to
anyone, subject to classroom and laboratory space restrictions. No
tuition was charged for those courses.

3. During the period October 1979, through March 1982, Mr.
Pottle was associated with EES, as an incorporator, member of its
board of directors, vice president and stockholder. One of EES'
primary activities during that period was to provide private WWTP
operator training, for profit.

4. During the period October 1979, through August 1981, Mr.
Pottle received compensation from EES and another firm in relation
to the following private WWTP operator training courses:

a. In November 1979, a 28-week course given to employees
of Digital Equipment Corporation's, Hudson WWTP. Digital paid
EES $12,000 for the course. Mr. Pottle, as an employee, of EES
taught portions of that course and received compensation from
EES for 81 1/2 hours, totaling approximately $4,075.00.

b. In July 1980, Mr. Pottle gave five afternoon lectures
to Westford Anodizing Corporation employees. Westford paid
Pottle $875 for his services, travel and related
administrative expenses.

c. In December 1980, EES gave a course to employees of
three Worcester area companies. The course consisted of 12
evening sessions. EES was paid $4,800 for that course... Mr.
Pottle taught six of those sessions and received compensation
from EES for 33 hours, totaling approximately $1,650.00.

d. In May 1981, EES contracted with the city of Lowell
CETA administration to provide a 15-week, full-time course to
CETA participants. EES received $29,040 for that course. Mr.
Pottle, as an employee of EES taught portions of that course
and received compensation from EES for 120 hours, totaling
approximately $6,000.00.

Conclusions of Law

5. Section 4(a) of G.L. c. 268A prohibits a state employee
from receiving compensation from anyone other than the commonwealth
in relation to any particular matter in which the commonwealth has
a direct and substantial interest. The training courses offered by
the OTP and EES were nearly identical in course content, format and
materials utilized. In addition, the private training courses
provided by EES and Mr. Pottle were offered to the same pool of
clients/applicants which the OTP was designed to service. By
receiving compensation as an employee of EES or directly from the
private firms involved, Mr. Pottle violated G.L. c. 268A,
s.4(a).[1]

6. During the period December 1981, to March 1982, Mr. Pottle
acted as the agent of EES in connection with the following
private WWTP operator training courses:

a. In February 1982, Mr. Pottle, as OTP director, was
contacted by Digital Equipment Corporation and asked about
training courses for its Stow WWTP employees. Mr. Pottle
advised them that EES could provide a training program during
March and April of 1982 for a fee. Mr. Pottle subsequently
submitted a written proposal to Digital on behalf of EES
offering to provide training to Digital employees for a fee
of $12,000. The proposed course syllabus was nearly identical
to the state OTP's and indicated that Mr. Pottle would teach
some of the session.

b. In February of 1982, Wayland officials contacted Mr.
Pottle inquiring about state OTP courses for their employees.
Mr. Pottle advised that no further OTP courses were scheduled
before the next state certification examination to be given
in August of 1982. Mr. Pottle advised further, however, that
EES had previously scheduled a private training program for
Digital's employees and indicated that municipal employees
could take that course for an additional fee. Mr. Pottle
subsequently submitted a written proposal on behalf of EES
offering to train up to four

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municipal employees at a cost of $4,500.

c. In March of 1982, Mr., Pottle was contacted by
representatives of the Massachusetts Air National Guard at
Otis Air force Base concerning state OTP training courses. Mr.,
Pottle advised that the state OTP course could not be offered
at Otis Air force Base, but that EES could offer such a service
for a fee. EES subsequently submitted a written proposal to
the Air National Guard offering to train up to 15 people for
a fee of $14,620. The proposed training course syllabus was
nearly identical to that of the state OTP.

7. Section 4(c) of G.L. c. 268A prohibits a state employee
from acting as agent for anyone other than the commonwealth in
connection with any particular matter in which the commonwealth or
a state agency is a party or has a direct and substantial interest.
By submitting private WWTP operator training proposals on behalf
of EES, Mr. Pottle acted as EES' agent in connection with a
particular matter in which the commonwealth had a direct and
substantial interest, WWTPO training. Mr. Pottle, therefore,
violated G.L. c. 268A, s.4(c).

8. In addition to his activities on behalf of EES and
compensation received from that firm, as outlined above, Mr. Pottle
received compensation from the commonwealth for approximately 70
hours of service which overlapped with hours when Mr. Pottle was
performing services for and receiving compensation from EES in
connection with private OTP training courses.

9. Section 23(d) of G.L. c. 268A prohibits a state employee
from using his position to secure unwarranted privileges for
himself or others.

10. By submitting time sheets and accepting his state salary
during periods in which he was privately paid by EES for his
private activities, Mr., Pottle violated G.L. c. 268A, s.23(d).

11. By assisting EES in developing and presenting a private
training course nearly identical to the state OTP course and
advising interested persons who had contacted him about OTP that
he and/or EES could provide private training for a fee, Mr. Pottle
also violated G.L. c. 268A, s.23(d).

12. Section 23(a) of G.L. c. 268A prohibits a state employee
from accepting other employment which will impair his independence
of judgment in the exercise of his official duties, By accepting
employment with EES, Mr. Pottle's decisions as OTP director were
impaired because his official decisions to schedule applicants or
to schedule state OTP training courses could affect the number and
availability of clients desiring similar training from EES for a
fee, Mr. Pottle, therefore, violated G.L. c. 268A, s.23(a).

13. Section 23(e) of G.L. c. 268A prohibits a state employee
from giving reasonable basis for the impression that any person can
improperly influence or unduly enjoy his favor in the performance
of his official duties. By engaging in activities on behalf of EES
in which he directed interested persons and firms who had contacted
him about the state OTP to EES' private training courses, Mr.
Pottle violated G. L. c. 268A, s.23(e).

Resolution

WHEREFORE, 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
representations and terms agreed to Mr. Pottle:

1. that he pay to the Commission the sum of $2,500:

a. $1,000 for violating G.L. c. 268A, s.4(a), by
receiving compensation from EFS in connection with particular
matters in which the state had a direct and substantial
interest

b. $1,000 for violating G.L. c. 268A, s.4(c), by acting
as agent for EES in connection with particular matters in
which the state had a direct and substantial interest

c. $500 for violating G. L. c. 268A, s.23(d).[2]

2. that he pay to the Commission the sum of $1,000 as
reimbursement to the commonwealth

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for his state salary received while he was also receiving private
compensation in connection with his private training activities;
and

3. that he pay the Commission the sum of $3,000 as recoupment
of his economic advantage gained in connection with his private
training activities violating G.L. c. 268A, s.s.4 and 23; and

4. that he waive all rights to contest the findings of fact,
conclusions of law and terms and conditions contained in this
agreement in this or any related administrative or judicial
proceeding to which the Commission is a party.

[1] Even if Mr. Pottle was a state employee whose official duties
were unrelated to the OTP, the s.4 prohibitions would apply. The
determinative factor is whether the activity for which Mr. Pottle
was privately paid, the private training, is a matter in which the
state has a direct and substantial interest. Nevertheless. the
direct overlap between Mr. Pottle's official duties as director of
the state's OTP and his activities in connection with private
training, was a factor considered by the Commission in determining
the appropriate sanction for Mr. Pottle's s.4 violations.

[2] By using his state position to secure an unwarranted privilege
for himself, i.e. being paid privately for the same hours he was
being paid by the state, Because Mr. Pottle's violations of G.L.
c. 268A, s.s.23(a). 23(d) and 23(e) described in paragraphs 11, 12
and 13 above, are cumulative of his violations of G.L. c, 268A,
s.s.4(a) and 4(c), no additional civil penalty is imposed.