Settlement

Settlement  In the Matter of Gary Kellaher

Date: 04/22/2015
Organization: State Ethics Commission
Docket Number: 15-0003

Table of Contents

Disposition Agreement

The State Ethics Commission (“Commission”) and Gary Kellaher (“Kellaher”) 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 20, 2014, 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 Kellaher.  On December 18, 2014, the Commission concluded its inquiry and found reasonable cause to believe that Kellaher violated G.L. c. 268A, § 23.

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

Findings of Fact

1. Kellaher, a resident of Fiskdale, Massachusetts, was at all relevant times the Town of Rutland Department of Public Works (“DPW”) Superintendent.  The Rutland Board of Selectmen (“BOS”) is the appointing authority for the DPW and relies on Kellaher, as Superintendent, to make recommendations for appointments. 

2. In late 2011, the DPW had an opening for one paid full-time seasonal position.

3. The Town of Rutland’s standard hiring process was to post open positions.

4. Without following the standard hiring process, Kellaher asked the BOS Chairman if Kellaher could hire his son to the seasonal position.

5. At the time, Kellaher’s son was an on-call snowplow operator for the DPW.

6. The BOS Chairman directed Kellaher to post the seasonal position.

7. Kellaher did not post the seasonal position and consequently his son was the only applicant for the position.

8. The BOS Chairman gave Kellaher permission to hire his son to the seasonal position.  However, the BOS Chairman did so without first bringing the matter to the full BOS for consideration and approval, believing that Kellaher had posted the position as directed.

9. Kellaher’s son began work in the seasonal position on December 5, 2011, and continued to work in this position until July 1, 2013.

10. As a seasonal employee, Kellaher’s son earned $14 per hour, without benefits, and worked 40 hours per week.

11. Being in the seasonal position gave Kellaher’s son an advantage over other potential job applicants to obtain a full-time permanent DPW laborer position in July 2013.  When that position became available, Kellaher posted the position and the full BOS approved the hiring of his son.

Conclusions of Law

12. Section 23(b)(2)(ii) 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.

13. As the DPW Superintendent, Kellaher was a “municipal employee,” as that term is defined in G.L. c. 268A, § 1(g). 

14. The opportunity to secure the paid full-time seasonal position was a privilege.

15. The privilege was unwarranted because Kellaher chose not to post the seasonal position, contrary to the Town’s standard hiring process, and despite the directive from the BOS Chairman to do so.  As a result of Kellaher’s decision not to post the seasonal position, Kellaher’s son did not have to compete for the position, and gained an advantage in subsequently obtaining a full-time permanent DPW laborer position.  The facts in this case are similar to In re Christianson, 2007 SEC 2117 (Disposition Agreement $5,000 civil penalty), a matter involving Kellaher’s predecessor, who violated § 23(b)(2) by, among other actions, obtaining permission to hire his son into a full-time, permanent operator/laborer position in the DPW sewer department without first posting the position, and without informing the BOS that he had not posted the position.  

16. The unwarranted privilege was of substantial value[1] because it allowed Kellaher’s son to obtain full-time seasonal employment at $14 per hour for approximately a year and a half. 

17. This unwarranted privilege was not properly available to similarly situated individuals because, due to Kellaher’s decision not to post the seasonal position, his son was the only applicant.

18. By hiring his son without posting the seasonal position, Kellaher used his official DPW Superintendent position to secure this unwarranted privilege for his son.

19. Thus, by using his official position as the DPW Superintendent to hire his son without posting the position, Kellaher knowingly, or with reason to know, used his official position to secure for his son an unwarranted privilege of substantial value not properly available to similarly situated individuals in violation of § 23(b)(2)(ii).

Resolution

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

(1)  that Gary Kellaher pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of two thousand five hundred dollars ($2,500) as a civil penalty for violating G.L. c. 268A, § 23(b)(2)(ii); and

(2)  that Gary Kellaher 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.

Correction

[The Ethics Commission issued a correction on April 23, 2015.  This disposition agreement and the related press statement incorrectly stated that Kellaher had asked the Chairman of the Rutland Board of Selectmen for approval to hire his son in late 2011.  In fact, Kellaher had asked for approval from Leroy C. Clark, a member of the Board of Selectmen, not the Chairman, at the time. The Commission regrets the error.]    
 

[1] “Substantial value” is $50.00 or more.  930 CMR 5.05.

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