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Settlement

Settlement In the Matter of Gerry Foskett

Date: 04/28/2016
Organization: State Ethics Commission
Docket Number: 16-0002

Table of Contents

Disposition Agreement

The State Ethics Commission (“Commission”) and Gerry Foskett (“Foskett”) enter into this Disposition Agreement pursuant to Section 3 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 16, 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.  On December 16, 2015, the Commission concluded its inquiry and found reasonable cause to believe that Foskett violated G.L. c. 268A, §§ 19 and 23(b)(3).

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

A. Background

1. Gerry Foskett, a resident of Charlton, Massachusetts, was during the relevant time the Town of Charlton (“Town”) Highway Department Superintendent (“Highway Superintendent”).  Foskett’s appointing authority is the Board of Selectmen. 

2. As Highway Superintendent, Foskett is in charge of hiring contractors for snowplowing Town roads.

3. In 2002, Foskett sought advice from the Legal Division of the State Ethics Commission about hiring his brother, uncle and nephew for snowplowing.  The Legal Division advised Foskett to file a § 23(b)(3) disclosure,[1] which would dispel the appearance of a conflict of interest, prior to hiring his uncle and nephew.  The Legal Division also advised Foskett to file a § 19(b)(1) disclosure[2] and to obtain “written permission” from his appointing authority to hire his brother, a member of his immediate family.

B. Hiring his Brothers and Son for Snow plowing

Findings of Fact

4. In 2010 through 2013, Foskett hired two of his brothers and his son for snowplowing on behalf of the Town and approved payment to them.

5. In the same period, Foskett approved payments from the Town to his brothers and his son for snowplowing totaling approximately $44,000.

6. Foskett filed § 23(b)(3) disclosures with the Town Clerk regarding the hiring of his brothers and son.

7. Contrary to the advice provided to him by the Legal Division, Foskett did not file a § 19(b)(1) disclosure with his appointing authority and did not obtain “written permission” from his appointing authority to hire his brothers.  Foskett also failed to file a § 19(b)(1) disclosure with his appointing authority and did not obtain his appointing authority’s written determination permitting him to hire his son.

Conclusions of Law: Section 19

8. Section 19 of G.L. c. 268A prohibits a municipal employee from participating[3] as such an employee in a particular matter[4] in which, to his knowledge, an immediate family member[5] has a financial interest.[6]   

9.As the Highway Superintendent, Foskett is a municipal employee as that term is defined in G.L. c. 268A, § 1(g). 

10. Foskett’s brothers and son are members of his immediate family.

11. The decisions to hire contractors for snowplowing and to approve payments to those contractors were particular matters.

12. Foskett participated in those particular matters as the Highway Superintendent by hiring his brothers and son for snowplowing and approving payments to them for that work.

13. At the time of his participation, Foskett knew his brothers and son each had a financial interest in his decisions to hire and to approve payments to them for snowplowing.

14. Accordingly, by hiring his brothers and son for snowplowing and approving payments to them for that work, Foskett violated § 19.  Foskett did not avoid or cure the § 19 violation by filing § 23(b)(3) disclosures with the Town Clerk because doing so did not fulfill the requirements of § 19(b)(1) that he:  (1) file a disclosure with his appointing authority, the Board of Selectmen, and (2) receive a written determination from the Board of Selectmen allowing Foskett to hire his immediate family members.

C. Hired His Sister-in-Law’s Company for Snow Removal

Findings of Fact

15. In 2011, WSF Plowing was a snow removal company operated by Foskett’s sister-in-law.  Foskett’s brother[7] performed snow removal work for the company and his sister-in-law maintained WSF Plowing’s financial records.

16. From 2011 through 2013, Foskett hired WSF Plowing for snow removal in the Town and approved Town payments to WSF Plowing totaling approximately $14,000.

17. Foskett, as Highway Superintendent, assigned his brother snowplow routes in the Town, and knew his brother had a financial interest in that work.

18. Foskett did not file any disclosures with his appointing authority related to WSF Plowing.

Conclusions of Law:  Section 19

19. Foskett’s brother is a member of his immediate family.

20. The decisions to hire contractors for snowplowing and to approve payments to those contractors were particular matters.

21. Foskett participated in those particular matters as the Highway Superintendent by hiring WSF Plowing and approving payments to WSF Plowing for snow removal.

22. At the time of his participation, Foskett knew that his brother had a financial interest in his decision to hire and to approve payments to WSF Plowing for snow removal.  Specifically, Foskett knew that his brother was plowing for WSF Plowing because Foskett assigned him the routes to plow.

23. Accordingly, by hiring and approving payments to WSF Plowing, while knowing that his brother had a financial interest in those decisions, Foskett violated § 19.[8]

D. Hiring his Son to Build a Retaining Wall

Findings of Fact

24. In March 2012, the Highway Department required a contractor to construct a retaining wall for its new barn.

25. Foskett’s administrative assistant solicited a quote from Foskett’s son to construct the retaining wall.

26. Foskett’s son provided a quote of $750.

27. Foskett accepted his son’s quote and approved payment of $750 to his son for constructing the retaining wall.

28. Foskett filed a § 23(b)(3) disclosure with the Town Clerk regarding the hire of his son.

Conclusions of Law:  Section 19

29. As stated earlier, Foskett’s son is a member of his immediate family.

30. The decisions to hire a contractor to build a retaining wall and to approve payment to that contractor were particular matters.

31. Foskett participated in those particular matters as the Highway Superintendent by accepting his son’s quote to construct the retaining wall and approving payment of $750 to his son for that work.

32. At the time of his participation, Foskett knew that his son had a financial interest in his decision to accept his son’s quote and approve payment to his son for construction of the retaining wall.

33. Accordingly, Foskett violated § 19.

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

(1) that Foskett pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $7,500 as a civil penalty for violating G.L. c. 268A, §§ 19 and 23(b)(3); and

(2) that Foskett 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.

By signing below, Foskett acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to all of the terms and conditions therein.

 

STATE ETHICS COMMISSION

  //signed//                    4/28/16   
Karen L. Nober            Date
Executive Director

  //signed//                    4/1/16                         
Gerry Foskett                Date     

[1] Section 23(b)(3) prohibits a public employee from acting in a manner, which would cause a reasonable person having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. The section further states that it shall be unreasonable to so conclude if the public employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.

[2] Section 19 prohibits a municipal employee from participating as such an employee in a particular matter in which, to his knowledge, he or an immediate family member has a financial interest.  Section 19(b)(1) provides an exemption if the municipal employee makes full disclosure of such financial interest to his appointing authority, and receives an advance a written determination from his appointing authority that the financial interest is not so substantial as to be deemed likely to affect the integrity of the services, which the municipality may expect from the employee. 

[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, decision, determination or finding.  G.L. c. 268A, § 1(k).

[5] “Immediate family” means the employee and his spouse, and their parents, children, brothers and sisters.  G.L. c. 268A, § 1(e).

[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 embraces private interests, no matter how small, which are direct, immediate or reasonably foreseeable.  See EC-COI-84-98.

[7]  This allegation relates to a different brother than the two brothers referred to in the previous section.

[8] Foskett’s actions in hiring and approving payments to WSF Plowing also created the appearance of a conflict of interest in violation of § 23(b)(3).  That section prohibits a public employee from knowingly, or with reason to know, acting in a manner which would cause a reasonable person having knowledge of the relevant circumstances to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship.  A public employee may avoid an appearance of a conflict of interest by filing a disclosure with his appointing authority.  By hiring and approving payment to his sister-in-law’s company without first filing a § 23(b)(3) disclosure with his appointing authority, Foskett acted in a manner which created the appearance of a conflict of interest.

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