| Date: | 10/06/1987 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 346 |
- This page, In the Matter of Edward Rowe, is offered by
- State Ethics Commission
Settlement
Settlement In the Matter of Edward Rowe
Table of Contents
Disposition Agreement
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This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Edward Rowe (Mr. Rowe) 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(j).
On October 27,1986, the Commission initiated a preliminary inquiry, pursuant to G.L. c. 268B, s.4(a), into possible violations of the conflict of interest law, G.L. c. 268A, involving Mr. Rowe, the acting chief engineer of the Massachusetts Bay Transit Authority's (MBTA) Engineering and Maintenance Department. The Commission concluded its inquiry and on March 16,1987, found reasonable cause to believe that Mr. Rowe violated G.L.c. 268A, s.6.
The parties now agree to the following findings of fact and conclusions of law:
1. At all times material herein, Mr. Rowe was deputy chief engineer of the MBTA's Engineering and Maintenance Department. As such, he was a state employee, as that term is defined in G.L. c. 268A, s.1(q). (In 1986 Mr. Rowe was appointed Acting Chief Engineer of the Engineering and Maintenance Department.)
2. As deputy chief engineer, Mr. Rowe signed all personnel documents, including approximately two hundred personnel authorizations per year.
3. On October 31,1983, Rowe signed a requisition seeking approval for two temporary driver/groundsman positions. The requisition was also signed by nine other MBTA employees, including the MBTA General Manager, James O'Leary, who signed off as final authority on December 15,1983.
4. On January 4,1984, O'Leary wrote to Frederick Salvucci, Secretary, Executive Office of Transportation and Construction, seeking certification of the critical need to fill twenty four vacancies, including two Local 104 driver/groundsman. On January 11,1984, a copy of the approved certification signed by Salvucci went to the MBTA Engineering and Maintenance Department.
5. On February 8, 1984, the MBTA Personnel Director signed a personnel authorization to hire Edward Rowe, Jr. as a driver/groundsman for the Engineering and Maintenance Department and sent the authorization to the head administrator in the Engineering and Maintenance Department.
6. When the head administrator in the Engineering and Maintenance Department received the personnel authorization from the personnel director, he initialed it (certifying that the department still needed to hire someone) and passed it on to Mr. Rowe for his signature.
7. Mr. Rowe was aware that his son was about to be referred by Local 104 to fill one of two Driver/Groundsman positions. He informed his immediate supervisor of the referral and received verbal approval to sign the personnel authorization.
8. On February 8,1984 Mr. Rowe signed the document which authorized the hiring of his son. After Mr. Rowe signed the document, it was signed by the Chief Engineer, the Deputy Director and Chief of Staff for Operations, the Director of Operations, the Director of EEO/AA, the Treasurer, the Budget Office and finally the General Manager.
9. On February 21,1984, Edward Rowe, Jr. was hired as a temporary driver/groundsman in the MBTA Engineering and Maintenance Department.
10. In February, 1985, nine MBTA officials including Mr. Rowe signed the personnel document which formally made Edward Rowe,Jr. a permanent employee of the MBTA.[1]
11. As far as the Commission is aware, the only MBTA documents that Mr. Rowe signed for Edward Rowe, Jr. were the February 1984 temporary and February 1985 permanent personnel authorizations.
12. Section 6 of G.L. c. 268A, except as otherwise permitted in that section, provides in relevant part that a state employee is prohibited from participating as such in particular matters in which, to his knowledge, a member of his immediate family has a financial interest. The exception in s.6 was not followed in this case as is discussed more fully below.
13. The hiring of Edward Rowe, Jr. as a driver/groundsman with the MBTA was a "particular matter." When Mr. Rowe signed the February 1984 and February 1985 personnel authorizations which resulted in the hiring of his son, Mr. Rowe participated in that matter. Because the position was a paid position, Edward Rowe, Jr. had a financial interest in the job. Mr. Rowe was aware at the time that he signed the personnel documents which hired his son that Edward Rowe, Jr. would receive compensation for working as a driver/groundsman.
14. By signing personnel documents which resulted in first the temporary and later the permanent hiring of his son, Mr. Rowe participated as a state employee in a particular matter in which his son had a financial interest, thereby violating G.L. c. 268A, s.6.
15. The Commission has no evidence to suggest that Mr. Rowe was aware that his actions violated G.L. c. 268A when he signed the personnel documents which resulted in the hiring of his son.[2] Indeed, as indicated above, Mr. Rowe appears to have taken certain steps to inform his supervisors that his son was being hired.
Thus, an argument could be made that a state employee who discloses a s.6 conflict to his supervisor and is told to participate ought to be able to rely on the supervisor's familiarity with the conflict law. Strict compliance with s.6, however, requires that the disclosure be in writing and that authorization to participate be given
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by the appointing authority.[3] Such strict compliance is necessary to insure that all due consideration is given to issues with potential controversy and potential for abuse. In the Matter of Hanlon, 1986 SEC 299.
Here, however, Mr. Rowe made his disclosure to and received his authorization to participate from his immediate supervisor and not his appointing authority. In addition, neither the disclosure nor the authorization was put into writing or filed with the Commission.
Nonetheless, the Commission has given consideration to Mr. Rowe's having disclosed to and received permission to participate from his supervisors. Accordingly, while the Commission can impose up to a $2,000 fine for each violation of s.6, it has determined that the small fine here properly reflects those mitigating factors. That it has insisted on a public resolution and a fine reflects the importance the Commission places on proper compliance with s.6's disclosure and exemption provisions. These provisions are more than mere technicalities. They protect the public interest from potentially serious harm. The steps of the disclosure and exemption procedure - particularly that the determination be in writing and a copy filed with the Commission - are designed to prevent an appointing authority from making an uninformed, ill- advised or badly motivated decision. Imposing a fine also should act as a deterrent in making clear that ultimately the primary responsibility for compliance with these provisions rests on the public employee seeking the exemption.
16. In view of the foregoing violations of G.L. c. 268A, s.6, 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 Mr. Rowe:
1. that he pay to the Commission the sum of two hundred fifty dollars ($250) as a civil penalty for violating G.L. c. 268A, s.6;
2. that so long as he is a state employee, if his duties would otherwise require him to participate in any particular matter in which an immediate family member has a financial interest, he must follow the procedure set out in G.L. c. 268A, s.6; and
3. that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions contained in this Agreement in any related administrative or judicial proceeding to which the Commission is or may be a party.