Settlement  In the Matter of J. Martin Auty

Date:	04/14/1998
Organization:	State Ethics Commission
Docket Number:	569

Disposition Agreement

The State Ethics Commission ("the Commission") and J. Martin
Auty ("Auty") enter into this Disposition Agreement ("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, s. 4(j).

On January 21, 1998, the Commission initiated, pursuant to
G.L. c. 268B, s. 4(a), a preliminary inquiry in-to possible
violations of the conflict of interest law, G.L. c. 268A, by Auty.
The Commission has concluded its inquiry and on April 8, 1998,
found reasonable cause to believe that Auty violated G.L. c. 268A.

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

 

Findings of Fact

1. At all relevant times, Auty was a police lieutenant in the
town of Mendon. As such, he was a municipal employee as that
term is defined in G.L. c. s. 268A, s. 1.

2. In early 1994, the town of Mendon advertised for part-time
dispatchers to serve the police and fire departments. The town
planned to hire twelve dispatchers. Each dispatcher would work
about 16 hours per week at $7.00 an hour.

3. Auty was appointed to serve on the review committee for the
dispatcher positions.

4. By early March 1994, the town received about
41 applications, including one from Auty's stepdaughter. The
review committee, including Auty, narrowed the list of applicants
to 32 qualified candidates, including Auty's stepdaughter. Auty
did not review his stepdaughter's application, but he reviewed the
applications of the others to narrow the field of candidates.

5. The review committee, including Auty, began interviewing the
candidates on March 19, 1994. Auty's stepdaughter was among those
interviewed. Auty participated in the interviews of candidates
other than his stepdaughter. He remained in the room during her
interview but did not ask any questions.

6. After the interviews, the review committee, including Auty,
narrowed the pool to twelve final candidates, including Auty's
stepdaughter, and began background checks.

7. On April 25, 1994, the Board of Selectmen appointed all twelve
candidates, including Auty's stepdaughter. The board did not
question Auty's participation at this time.

8. In early July 1994, the police department advertised for
part-time reserve police officers. The town expected to hire about
four to six officers to work about 16 hours per week at $11.00 per
hour.

9. The police department received about 38 applications,
including one from Auty's stepdaughter.

10. Auty was again on the review committee for these
positions.

11. The review committee, including Auty, screened out about
twenty applicants, interviewed sixteen, narrowed the list to ten
and eventually selected five finalists. Auty's stepdaughter was
one of the five final candidates.

12. As before, Auty did not participate in interviewing his
stepdaughter or reviewing her application, but he remained in the
room during his stepdaughter's interview and participated in all
other aspects of the process.

13. On March 20, 1995, the Board of Selectmen were given the
names of the five finalists.

14. In September 1995, the Board of Selectmen interviewed the
final candidates and appointed them as reserve police officers.
 

Conclusions of Law

15. Section 19 of G.L. c. 268A, except as permitted by
paragraph (b) of that section,[1] prohibits a municipal employee
from participating[2] as such in a particular matter[3] in which,
to his knowledge, he or his immediate family[4] has a financial
interest.[5]

16. The determination of whom to appoint as a part-

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time dispatcher in 1994 was a particular matter.

17. Auty's stepdaughter, a member of his immediate family and
a candidate for a position as a part-time dispatcher, had a
financial interest in that particular matter.

18. Auty participated in that particular matter by screening
the applications of and interviewing the candidates other than his
stepdaughter. When he did so, he knew that his daughter had a
financial interest in the particular matter.

19. The determination of whom to appoint as part-time reserve
officer in 1995 was also a particular matter.

20. Auty's stepdaughter, a candidate for a position as a
reserve officer, had a financial interest in that particular
matter.

21. Auty participated in that particular matter by screening
the applications of and interviewing the candidates other than his
stepdaughter. When he did so, he knew that his stepdaughter had a
financial interest in the particular matter.

22. Accordingly, by participating in particular matters in
which, to his knowledge, his stepdaughter had financial interests,
Auty violated s. 19.[6]

Resolution

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

(1) that Auty pay to the Commission the sum of five hundred
dollars ($500.00) as a civil penalty for violating G.L. c. 268A,
s. 19; and

(2) that Auty waive all rights to contest the findings of fact,
conclusions of law and terms and conditions contained in this
Agreement in this or any other related administrative or judicial
proceedings to which the Commission is or may be a party.

[1] None of the exceptions to s. 19 apply in this case.

[2] "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, s. 1(j).

[3] "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, s. 1(k).

[4] "Immediate family" means the employee and his spouse, and their
parents, children, brothers and sisters. G.L. c. 268A, s. 1(e).
As his wife's child, Auty's stepdaughter is a member of Auty's
immediate family.

[5] "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, immediate or reasonably
foreseeable. See EC-COI-84-98. The interest can be affected in
either a positive or negative way. See EC-COI-84-96.

[6] In his defense, Auty states that while he knew he was
participating in particular matters, he was under the mistaken
impression that he could avoid a violation of s. 19 by withdrawing
from direct participation regarding his stepdaughter. The
Commission has stated, however, that even indirect involvement
constitutes participation for the purposes of the conflict of
interest law. Specifically, in In re Howlett, 1997 SEC 859, the
Commission found that a town assessor violated s. 19 by
participating in the interviews of candidates for a position as
senior clerk, even though he had avoided any direct action on his
daughter's application and interview, and did not vote on the final
selection. See also Commission Advisory No. 11, Nepotism, at 2
("Personal and substantial participation involves any significant
involvement in the hiring process").

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