Settlement  In the Matter of Elizabeth Moore

Date:	06/28/2011
Organization:	State Ethics Commission
Docket Number:	11-0014

Disposition Agreement

The State Ethics Commission ("Commission") and Elizabeth Moore ("Moore") 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 September 10, 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 Moore. The Commission has concluded its inquiry and, on November 19, 2010, found reasonable cause to believe that Moore violated G.L. c. 268A.

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

Findings of Fact

• Moore has been the Town of Marblehead Veterans Middle School ("Veterans") Principal since 2005.
   
• G. Paul Dulac ("Dulac") has been the Marblehead Public Schools Superintendent since 2007.
   
• The standard hiring process for personnel at Veterans includes posting and advertising the open position, interviewing qualified candidates by the principal, submitting a nominating packet including a "nomination for appointment" by the principal to the superintendent, final interviews and appointment by the superintendent, all in that order.
   
• In early August 2009, a one-year, half-time, paid position for an instructional technology specialist opened up at Veterans. The specialist was to teach a 7 ^th and 8 ^th grade course called "Media Literacy," which covers digital photo editing, Internet safety, and other topics. The position needed to be filled by August 26, 2009, which is when faculty training was scheduled to commence. The first day of school for students was September 8, 2009.
   
• Tammy Nohelty ("Nohelty") is the wife of School Committee Member Richard Nohelty. Nohelty had previously worked one year (2008-2009) as an artist-in-residence at Veterans, during which time she taught digital photo editing.
   
• Prior to the advertisement or posting of the special position, Nohelty learned of the specialist position opening and called Moore to express an interest in the position.
   
• On August 13, 2009 (three days before the position was advertised), Nohelty was interviewed by Moore and the newly appointed Veterans' assistant principal.
   
• On August 13, 2009, without any posting or advertising of the position, Moore submitted a nomination for appointment form dated August 13, 2009, to Superintendent Dulac recommending Nohelty for the specialist position.
   
• When Moore submitted the appointment form for Nohelty, she knew that Nohelty was School Committee Member Richard Nohelty's wife.
   
• Moore left for a 10-day vacation beginning August 14, 2009. Dulac was on vacation from August 11 - 17, 2009.
   
• On Sunday, August 16, 2009, the specialist position was advertised in the Boston Globe. On Monday, August 17, 2009, the position was posted internally.
   
• In response to the Boston Globe advertisement, the Superintendent's Office received two applications for the position, on August 19, 2009, and August 21, 2009, respectively. Both applicants were licensed in instructional technology and had considerable relevant teaching experience. In addition, one internal candidate expressed interest in the position on or about August 17, 2009. None of these candidates was interviewed for the position.
   
• When Dulac returned from vacation, he received Moore's nomination for appointment form recommending Nohelty for the position and noted that it was dated August 13, 2009. Dulac believes that he orally confirmed with the Veterans' assistant principal that Nohelty was still Moore's recommendation. According to Dulac, he also asked the Veterans' assistant principal whether there were any other applicants for the position, and she told him there was none. However, Dulac knew that pursuant to standard procedures, his own assistant would have received any such applications (as indicated above, the Superintendent's Office had in fact received three such applications). Nevertheless, Dulac failed to ask his assistant whether there were such applications.
   
• Dulac then decided to have the date changed from August 13, 2009, to August 23, 2009, on the nomination form that had been submitted by Moore, so that the written recommendation would appear to have been made after the posting.
   
• On August 24, 2009, Dulac interviewed Nohelty and decided to hire her as the instructional technology specialist.
   
• Moore and Dulac both state that the other candidates' applications for the specialist position were not brought to their attention until after the hiring of Nohelty, and, therefore, they believed Nohelty to be the only candidate for the position at the time she was hired.
   
• As the Veterans' principal, Moore is a municipal employee as defined by G.L. c. 268A, § 1.
   
• Section 23(b)(2) of G.L. c. 268A prohibits a municipal employee from, knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.
   
• The standard hiring process for personnel at Veterans includes posting and advertising the open position, and interviewing qualified candidates. A nomination for appointment is then submitted by the principal to the superintendent. Moore submitted a nomination for appointment to hire Nohelty as the specialist prior to the position being posted and without considering other candidates. Where the standard hiring procedure was not followed, Nohelty's appointment to the specialist position was an unwarranted privilege.
   
• Nohelty's hiring was an unwarranted privilege of substantial value because the specialist position was a paid position.
   
• Moore knowingly, or with reason to know, used her Veterans' principal position to secure for Nohelty this unwarranted privilege by recommending to the superintendent that Nohelty be hired for the specialist position.
   
• This privilege was not otherwise properly available to similarly situated individuals, such as other potential applicants for the position.
   
• Therefore, by recommending that Nohelty be hired for the specialist position without following the standard hiring procedure, Moore knowingly, or with reason to know, used her Veterans' principal position to secure for Nohelty an unwarranted privilege of substantial value that was not properly available to similarly situated individuals, thereby violating § 23(b)(2).

Conclusions of Law

In view of the foregoing violation of G.L. c. 268A by Moore, 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 Moore:

• that Moore 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)(2); and
   
• that Moore 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.