Settlement  In the Matter of Gang Sun

Date:	06/21/2012
Organization:	State Ethics Commission
Docket Number:	12-0007

Disposition Agreement

The State Ethics Commission (“Commission”) and Gang Sun (“Sun”) 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 October 14, 2011, 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 Sun.  The Commission has concluded its inquiry and, on January 20, 2012, found reasonable cause to believe that Sun violated G.L. c. 268A.

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

Findings of Fact

1. Sun was originally hired by the University of Massachusetts Boston (“UMass Boston") Department of Physics as an assistant professor in August 1993. Sun is currently a full professor at UMass Boston. Sun’s appointing authority is the Dean of the College of Science and Mathematics of UMass Boston.

2. In accepting UMass Boston’s offer of employment in 1993, Sun signed a contract, which stated, among other things, that he would comply with UMass Boston’s “Academic Personnel Policy.” Section 6.6 of that policy states that no faculty member may “participate directly in the appointment, reappointment, promotion, tender or other condition of employment at the University” of any family member, including a spouse, except with a waiver from the UMass Boston president.

3. Sun married Fen-Yen Chang (“Chang”) in 1999.

4. From 2003 to 2011, Sun, on 14 occasions, appointed Chang to work under various contracts as his research assistant (11 contracts) or teaching assistant (three contracts).^[1]

5. UMass Boston received the funding for Chang’s research assistant contracts from the Air Force Research Laboratory at Hanscom Air Force Base. The research assistant contracts involved developing software for a computer modeling system for the Air Force.

6. Chang’s teaching assistant contracts were funded by UMass Boston.

7. Sun alone supervised Chang as his research assistant or teaching assistant.

8. Chang’s total compensation for the work she performed between 2003-2011as Sun’s research assistant and teaching assistant was $455,000.

9. The conflict of interest law contains a disclosure and exemption procedure that would have allowed Sun to participate in a matter in which his wife had a financial interest if he had first made a written disclosure of all the facts surrounding his wife’s financial interest in the matter to his appointing authority, and if his appointing authority had made a written determination allowing Sun to participate. Copies of the written disclosure and determination would have had to have been filed with the Commission. If Sun’s appointing authority did not make such a determination, then Sun was prohibited from participating in matters in which his wife had a financial interest.

10. Sun never disclosed to his appointing authority (the Dean of the College of Science and Mathematics of UMass Boston) or to the UMass Boston president that Sun was awarding research and teaching contracts to Sun’s wife worth in the aggregate $455,000. Sun did not receive a waiver from the UMass Boston president to appoint his wife to the positions of research assistant and teaching assistant.

11. Sun states that he orally disclosed to the Air Force Research Laboratory contract monitor that his wife would be the research assistant on those research assistant contracts, that the contract monitor did not object and that the contract monitor was satisfied with Chang’s work.

Conclusions of Law

12. As a UMass Boston professor, Sun is a state employee as defined by G.L. c. 268A, § 1.

13. Section 6 of G.L. c. 268A, provides in relevant part that, except as otherwise permitted by that section,^[2] a state employee is prohibited from participating^[3] as such an employee in a particular matter^[4]in which he knows his immediate family^[5] has a financial interest.^[6]

14. Each of Sun’s decisions to appoint Chang as research assistant or teaching assistant was a particular matter.

15. Because Sun selected Chang for these appointments, he participated in these particular matters.

16. Sun knew that his wife had a financial interest in obtaining the research assistant or teaching assistant appointments because he knew on each occasion when he selected her that she would be compensated for her work as a research assistant or teaching assistant.

17. By participating in the appointments as described above, Sun participated in particular matters in which to his knowledge his wife had a financial interest, thereby violating G.L. c. 268A, § 6.

18.  As noted above, Sun states that, as to the research assistant contracts, Sun had disclosed to the Air Force contract monitor that Sun’s wife would be performing that work. Even if true, such a disclosure does not comply with the conflict of interest law nor with Sun’s employment contract with UMass Boston. In addition, the Air Force was not involved in Sun’s teaching assistant contracts, and Sun made no disclosure whatsoever to his superiors at UMass Boston regarding the three teaching assistant contracts he gave to his wife.

In view of the foregoing violations of G.L. c. 268A by Sun, 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 Sun:

1. that Sun pay to the Commonwealth of Massachusetts, with such payment delivered to the Commission, the sum of $25,000 as a civil penalty for repeatedly violating G.L. c. 268A, § 6; and
    
2. that Sun 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.

^[1] Ms. Chang has a masters degree in computer science and previously worked as a software engineer.

[2] Section 6 provides that:  “Any state employee whose duties would otherwise require him to participate in such a particular matter shall advise the official responsible for appointment to his position and the state ethics commission of the nature and circumstances of the particular matter and make full disclosure of such financial interest, and the appointing official shall thereupon either

(l) assign the particular matter to another employee; or

(2) assume responsibility for the particular matter; or

(3) make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the commonwealth may expect from the employee, in which case it shall not be a violation for the employee to participate in the particular matter. Copies of such written determination shall be forwarded to the state employee and filed with the state ethics commission by the person who made the determination. Such copy shall be retained by the commission for a period of six years.”

[3] “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).

[4] “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).

[5] “Immediate family” means the employee and his spouse, and their parents, children, brothers and sisters.

[6] “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 and immediate or at least reasonably foreseeable.  See EC-COI-84-98.  The interest can be affected in either a positive or negative way.  See EC-COI-84-96.