| Date: | 01/22/2009 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 09-0004 |
- This page, In the Matter of John L. Silva, Jr., is offered by
- State Ethics Commission
Settlement
Settlement In the Matter of John L. Silva, Jr.
Table of Contents
Disposition Agreement
The State Ethics Commission and John L. Silva, Jr. ("Silva") 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, section 4(j).
On January 16, 2008, the Commission initiated, pursuant to G.L. c. 268B, section 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Silva. The Commission concluded its inquiry and on June 19, 2008, found reasonable cause to believe that Silva had violated G.L. c. 268A.
The Commission and Silva now agree to the following findings of fact and conclusions of law:
Findings of Fact
Issuing Written Directive To His Son
1. During the relevant time, Silva was the East Bridgewater Police Chief.
2. In August 1996, Silva's son became a full-time East Bridgewater police officer.
3. In August 2003, Silva's son was placed in protective custody for an alcohol-related incident.
4. In September 2003, Silva issued a written directive to his son to do the following until further notice: take a breathalyzer test at the beginning of his duty shifts; place his service weapon in the station lock box at the end of every shift; and attend weekly counseling and an outpatient alcohol program providing proof of attendance.
Authorizing Son To Return To Work
5. On November 19, 2003, Silva's son was arrested for operating a motor vehicle under the influence of alcohol and leaving the scene of an accident.
6. As a result of the above-described arrest, the East Bridgewater Board of Selectmen brought numerous charges against Silva's son for violating the Police Department's rules and regulations.
7. On November 24, 2003, Silva requested an opinion from the State Ethics Commission's Legal Division regarding the restrictions applicable to him under the conflict of interest laws in connection with his son's arrest.
8. The Legal Division advised Silva that he could not participate in disciplinary matters involving his son absent a section 19(b)(1) [1] determination by his appointing authority.
9. Silva did not secure a section 19(b)(1) determination from his appointing authority to allow him to participate in his son's discipline.
10. Silva sent a letter to the Board of Selectmen dated November 24, 2003, advising that he could not be involved in any disciplinary hearing involving his son because of his son's financial interest in the matter.
11. Silva's son entered into a Settlement Agreement with the Board of Selectmen in January 2004 in connection with the violations of Police Department's rules and regulations arising from his arrest described above ("Settlement Agreement").
12. As part of the Settlement Agreement, Silva's son accepted an immediate 120-day suspension without pay to coincide with his license suspension by the Registry of Motor Vehicles.
13. Silva authorized his son to return to work on May 7, 2004, prior to the expiration of the 120-day suspension and/or reinstatement of his license, and placed him on restricted desk duty.
Designating Himself Liaison
14. Under the Settlement Agreement, Silva's son agreed to take breathalyzer tests at the beginning of each of his shifts and to submit the results to Sergeant John Cowan or the designated liaison between the Police Department and the Board of Selectmen.
15. In or about January 2004, Silva appointed himself the designated liaison and collected his son's breathalyzer tests.
Allowing Son To Work Despite Missed Breathalyzer Tests
16. On three occasions between January 2004 and December 2004, Silva's son failed to take the breathalyzer tests as required under the Settlement Agreement.
17. Silva allowed his son to work his police shifts despite his failure to take the breathalyzer tests on these three occasions.
Failing to Report Missed Breathalyzer Tests
18. Silva did not report the missed breathalyzer tests to the Board of Selectmen.
Conclusions of Law
19. As Police Chief, Silva was a municipal employee as that term is defined under G.L. c. 268A, section 1(g).
Issuing Written Directive To His Son
Section 19
20. Section 19 of G. L. c. 268A prohibits a municipal employee from participating as such in a particular matter in which to his knowledge, he or an immediate family member has a financial interest.
21. Silva's son was an immediate family member is that term is defined under
G. L. c. 268A, section 1(e).
22. Silva's decision to issue a written directive to his son in September 2003 was a particular matter.
23. Silva participated in the decision by making it.
24. Silva's son had a foreseeable financial interest in the decision because failure to comply with the directive either would have resulted in his suspension or other adverse consequences.
25. Silva was aware of that financial interest when he so participated.
26. Therefore, Silva violated section 19 by deciding to issue the September 2003 directive to his son, a particular matter in which Silva knew that his son had a financial interest.
Authorizing Son To Return To Work
Section 19
27. Silva's assignment of his son to restricted desk duty prior to the expiration of the 120-day suspension and/or the reinstatement of his license was a particular matter under section 19.
28. Silva participated in that particular matter by making the decision.
29. Silva's son had a foreseeable financial interest in reinstatement prior to the expiration of the 120-day suspension because the suspension was without pay and reinstatement allowed him to collect his salary.
30. Silva was aware of that financial interest when he so participated.
31. Therefore, Silva violated section 19 by deciding to assign his son to restricted desk duty prior to the expiration of the 120-day suspension, a particular matter in which Silva knew that his son had a financial interest.
Designating Himself Liaison
Section 19
32. Silva's decision to designate himself liaison to the BOS for the purposes of collecting the breathalyzer test, was a particular matter.
33. Silva participated by so deciding.
34. Silva's son had a foreseeable financial interest in Silva designating himself to collect the breathalyzer tests because Silva could overlook his son's failure to submit the tests, which failure otherwise could result in adverse employment consequences of a financial nature.
35. Silva was aware of that financial interest when he so participated.
36. Therefore, Silva violated section 19 by deciding to designate himself liaison to collect breathalyzer tests, a particular matter in which Silva knew that his son had a financial interest.
Allowing Son To Work Despite Missed Breathalyzer Tests
Section 19
37. Silva's three decisions to allow his son to work despite missed breathalyzer tests are particular matters.
38. Silva participated in those particular matters by so deciding.
39. Silva's son had a foreseeable financial interest in those decisions because his son's failure to submit the breathalyzer tests would likely have resulted in adverse employment consequences of a financial nature.
40. Silva was aware of that financial interest when he so participated.
41. Therefore, Silva violated section 19 by deciding to allow his son to work despite missed breathalyzer tests, particular matters in which Silva knew that his son had a financial interest.
Failing to Report Missed Breathalyzer Tests
Section 19
42. Silva's decisions not to report his son's missed breathalyzer tests were particular matters.
43. Silva participated in those particular matters by so deciding.
44. Silva's son had a foreseeable financial interest in those decisions because in failing to report his son's missed breathalyzer tests to the Board of Selectmen, Silva's son avoided what would have likely resulted in adverse employment consequences of a financial nature.
45. Silva was aware of that financial interest when he so participated.
46. Therefore, Silva violated section 19 by deciding not to report his son's missed breathalyzer tests, particular matters in which Silva knew that his son had a financial interest.
Section 23(b)(2)
47. Section 23(b)(2) prohibits a public employee from knowingly, or with reason to know, using 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.
48. Silva's failure to report his son's missed breathalyzer tests was a privilege or exemption.
49. The privilege or exemption was unwarranted because the Settlement Agreement required Silva's son to take the breathalyzer tests at the beginning of each shift.
50. The failure to report the missed breathalyzer tests was an unwarranted privilege of substantial value, worth $50.00 or more, because the Settlement Agreement made taking the test a precondition to working a shift.
51. The unwarranted privilege was not available to similarly situated individuals.
52. By allowing his son to take shifts without taking the breathalyzer test, Silva used his official position as police chief.
53. Therefore, Silva violated section 23(b)(2).
Resolution
In view of the foregoing violations of G.L. c. 268A by John L. Silva, Jr., 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 John L. Silva, Jr.:
(1) that John L. Silva, Jr., pay to the Commission the sum of $5,000 as a civil penalty for violating G.L. c. 268A, sections 19 and 23, as noted above; and,
(2) that John L. Silva, Jr. 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.