Settlement

Settlement  In the Matter of Joseph Duggan

Date: 06/14/1995
Organization: State Ethics Commission
Docket Number: 527

Table of Contents

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into  between the State Ethics Commission ("Commission") and Joseph  Duggan ("Duggan") pursuant to s.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 May 10, 1994, the Commission initiated, pursuant to G.L.  c. 268B, s.4(a), a preliminary inquiry into possible violations  of the conflict of interest law, G.L. c. 268A, by Duggan. The  Commission has concluded its inquiry and, on September 13, 1994,  found reasonable cause to believe that Duggan violated G.L. c.  268A, s.19.   

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

1. Duggan has worked for the Hull Lighting Plant  ("department") for approximately the last 30 years as a general  foreman, with the exception that between January 1993 and May  1993 he served as the acting manager. As either general foreman  or acting manager Duggan was a municipal employee as that term is  defined in G.L. c. 268A, s.1.   

2. As general foreman, Duggan supervises electrical  line construction and maintenance. This a 40-hour a week job, and  there is often overtime involved, in particular when there are  storms.   

3. Duggan has two sons that work for the Department,  Steven and Matthew. Steven is a lineman. He began working for  the Department in the early 1980s, and left after several years.  He returned in either 1985 or 1986 and has remained there since.  He is currently a lineman, but sometimes has worked as a lead  lineman. Whether he is a lead lineman or not is determined by  management based on seniority and experience.   

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Matthew is also a lineman. He has been with the department  for eight or nine years, the last year on disability.   

Duggan also has a brother, Robert, who worked as a lead  lineman for the department until he retired eight or 10 years  ago. In times of emergencies, when experienced lead linemen are  needed, sometimes Robert will be called by management to work.   

4. In September 1991, Duggan pointed out to Lighting Plant  management that they had made a mistake in passing over Steven in  filling the lead lineman position, where, according to Duggan,  Steven had superior qualifications, including several years more  experience, than the person being appointed. Duggan recommended  to the Lighting Plant manager that Steven be promoted to the  position of lead lineman. The manager did not accept that  recommendation.

5. By letter dated January 19, 1993, town counsel advised  Duggan that he could not participate in any department personnel  matters involving his two sons' employment, and that the Lighting  Plant Board of Commissioners ("Board") should either make those  decisions or delegate them to another employee. Duggan gave this  letter to the Board. According to then Board Chairman Thomas J.  Sullivan, the Board instructed Duggan to continue to serve as  acting manager but to refer any discrete personnel issues  involving his sons to the Board.   

6. While acting plant manager between January 1993 and May  1993, Duggan did the following:   

(a) He approved overtime for his son Steven (164  hours, $3,177) and for his son Matthew (41 hours,  $661.74)[1]; and   

(b) after a severe storm in March 1993, he hired his  brother Robert to act as a lead lineman. Robert earned  $1,316.56 for 36 hours of work at that time. Duggan  hired Robert for these duties even though two other  linemen had been recently laid off for lack of work.[2]   

7. Except as otherwise permitted by that section[3],  G.L. c. 268A, s.19, in relevant part, prohibits a municipal  employee from participating as such in a particular matter in  which, to his knowledge, he or a member of his immediate family  has a financial interest.[4]   

8. The personnel decisions described above (recommending  his son Steven for a promotion, approving overtime, hiring his  brother) were particular matters.[5]   

9. Duggan participated[6] in those particular matters by  either making the decision himself or recommending action.   

10. At the time he so acted, he knew that either a son  and/or a brother, as the case may be, had a financial interest in  the particular matter.   

11. Therefore, by so acting, Duggan participated as a  municipal employee in particular matters in which to his  knowledge an immediate family[7] member had a financial interest,  thereby violating s.19.[8]   

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

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

(2) that Duggan 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] According to Chairman Sullivan, the Board approved the  payrolls and, therefore, was aware of and, in effect, approved  the overtime Duggan awarded to his sons.   

[2] There is a dispute as to whether these other two linemen  were qualified. Sullivan and Duggan assert they were not. The  present Board chairman and manager say they were. In addition,  although this was an emergency, Duggan had the time to pass on  the decision as to who would be hired to the Board chairman. He  did not do so.   

[3] None of those exceptions applies.   

[4] Section 19(b)(1) provides that it is not a violation of  s.19 if the municipal employee first advises the official  responsible for appointment to his position of the nature and  circumstances of the particular matter and makes full disclosure  of such financial interest, and receives in advance a written  determination made by that official that the interest is not so  substantial as to be deemed likely to    Page 730    affect the integrity of the services which the municipality may  expect from the employee. Pursuant to c. 268A, s.24, such  disclosures and authorizations are public records.   

[5] "Particular matter," 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).   

[6] "Participate," 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).   

[7] "Immediate family," the employee and his spouse, and  their parents, children, brothers and sisters. G.L. c. 268A,  s.1(e).    [8] The fact that the Board knew of and was, in effect,  approving Duggan's granting overtime to his sons is a mitigating  factor, although not a defense. The Commission has repeatedly  observed that the s.19(b)(1) disclosure and written authorization  procedure is not a technicality. "The steps of the disclosure  and exemption procedure ... are designed to prevent an  appointing authority from making an uninformed ill-advised or  badly motivated decision." In re Hanlon, 1986 SEC 253, at 255.  In any event, here, the Board did not even verbally approve of  Duggan hiring his brother in March 1993.   

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