Settlement  In the Matter of Michael McCormack

Date:	12/03/1991
Organization:	State Ethics Commission
Docket Number:	424

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Michael McCormack (Mr. McCormack) pursuant to section 5 of the Commission’s Enforcement Procedures. This Agreement constitutes a consented to final Commission order enforceable in the superior court pursuant to G.L. c. 268B, §4(j).

On January 16, 1991, 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 Mr. McCormack. The Commission concluded its inquiry and, on July 11, 1991, voted to find reasonable cause to believe that Mr. McCormack violated G.L. c. 268A, §§13 and 23.

The Commission and Mr. McCormack now agree to the following findings of fact and conclusions of law:

Findings of Fact

1.  At the times here relevant, Mr. McCormack was the Dukes County Special Sheriff and the Deputy Superintendent of the Dukes County Jail and House of Correction (Jail).  As such, Mr. McCormack was, at all times here relevant, an employee of Dukes County within the meaning of G.L. c. 268A, §1(d).  Mr. McCormack’s county employment was full-time and salaried.

2. In addition to being a full-time Jail employee, Mr. McCormack was one of several Dukes County deputy sheriffs nominated by the Sheriff of Dukes County and appointed by the state courts to serve as a part-time paid per diem court officer in the state superior and district courts in Dukes County.[1]  As a per diem court officer, Mr. McCormack was paid by the Commonwealth for his services at a daily rate which was set by statewide contract and was not dependent upon the number of hours worked in a given day.[2]

3. During the period here relevant, when the state courts were in session in Dukes County, Mr. McCormack was informed in advance by Sheriff Look or by the Clerk of Courts of the days on which the courts would need court officers.[3]  In turn, Mr. McCormack would prepare a monthly court officer schedule by contacting persons on the list of approved court officers, notifying them of the days on which court officers were needed, and determining which court officers were available to serve on which days.

4. In the years 1985 through 1988, Mr. McCormack, in performing the afore-described court officer scheduling function, scheduled himself to work on certain days as a paid per diem court officer in the superior and district courts.[4]

S. During the period from 1985 through 1988, Mr. McCormack scheduled himself to work and worked approximately 430 days as a per diem court officer.  On an undetermined number of these days, court was in session for two hours or less.  Mr. McCormack received, on average, approximately $9,000 a year from the Commonwealth for serving as a court officer from 1985 through 1988.

6.  For the most part, Mr. McCormack scheduled himself to work and was paid to work as a court officer on days when he was also scheduled and paid to work at the Jail.  Thus, Mr. McCormack was paid as a state employee for many of the same work days for which he was also paid as a county employee.

7.  Dukes County Sheriff’s Department policy at the times here relevant required salaried Jail employees, such as Mr. McCormack, to devote at least 35 hours per week to their Jail duties and required Jail employees who served as per diem court officers to either make up the hours they worked as court officers by working an equal number of make up hours at the Jail, or to use vacation time, compensation time or other leave time for the hours they served as court officers.

8.  Although Mr. McCormack made up many of the hours that he worked as a paid per diem court officer on days that he was also scheduled and paid to work at the Jail, by either working make up hours at the Jail or by using vacation time, compensation time or other leave time, there were occasions on which he did not do so. As a result, Mr. McCormack received compensation from both the Commonwealth and Dukes County for some of the same hours of work.  The number of occasions on which Mr. McCormack received such overlapping compensation cannot be determined because there are no records of the specific hours that Mr. McCormack actually worked at the Jail during the period in question.[5]

Conclusions of Law

9.  General laws c. 268A, §13, except as permitted by that section,[6] in pertinent part, prohibits a county employee from participating, as such, in a particular matter in which to his knowledge, he has a financial interest.

10.  The scheduling of per diem court officers was a particular matter within the meaning of G.L. c. 268A.[7]

11. Mr. McCormack had a financial interest in his being scheduled to work as a paid per diem court officer.[8]

12. By scheduling himself to work on certain days as a paid per diem court officer, Mr. McCormack personally and substantially participated as a county employee in particular matters in which, to his knowledge, be had a financial interest. In so doing, Mr. McCormack violated G.L. c. 268A, §13.

13. Section 23(b)(2), in pertinent part, prohibits a public employee from knowingly, or with reason to know, using his official position to secure an unwarranted privilege of substantial value for himself.

14. By receiving compensation from the Commonwealth for serving as a per diem court officer for some of the same hours for which he was also paid by Dukes County to work at the Jail, Mr. McCormack used his official position to obtain unwarranted privileges of substantial value for himself. In so doing, Mr. McCormack violated G.L. c. 268A, §23(b)(2).[9]

15.  The Commission has found no substantial evidence that, at the time of the above-described violations, Mr. McCormack was aware that his actions violated G.L. c. 268A. Ignorance of the law, however, is no defense to a violation of G.L. c. 268A.  See, e.g., In the Matter of Mary L. Padula, 1987 SEC 310, 311 and n.2. Nor has the Commission found any evidence that Mr. McCormack attempted to conceal any of the facts relevant to this matter.  This too, however, is only a mitigating circumstance, not a defense to liability under G.L. c. 268A. See, e.g., In the Matter of James Geary, 1987 SEC 305, 307.

16.  It is Mr. McCormack’s position that, in scheduling himself to work and in serving as a paid per diem court officer, he was acting at the direction of, and with the knowledge and implicit approval of, his appointing official, the Sheriff of Dukes County.  Even if this were true, however, such knowledge and implicit approval is at most a mitigating factor, not a defense to liability under G.L. c. 268A, §13.  While there is an exception to liability under G.L. c. 268A, §13(b), when a county official makes full disclosure of the relevant circumstances to both his appointing official and to the Commission and obtains the appointing official’s written authorization to participate in the particular matter in which the county employee bas a financial interest, those are not the circumstances here.  Absent strict compliance with the statute’s disclosure and exemption provisions, there can be no defense to liability under G.L. c. 268A, §13. See, e.g., In the Matter of Roger H. Muir, 1987 SEC 301, 302; In the Matter of Edward Rowe, 1987 SEC 307, 309.

Resolution

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

          (1) that Mr. McCormack pay to the Commission the sum of six thousand dollars ($6,000.00) as a civil penalty for violating G.L. c. 268A, §§13 and 23(b)(2) on an undetermined number of occasions;

          (2) that Mr. McCormack act in conformance with the requirements of G.L. c. 268A in his future conduct as a county employee; and

          (3) that Mr. McCormack waive all rights to contest the findings of fact, conclusions of law, and terms and conditions contained in this agreement in any related administrative or judicial proceeding to which the Commission is or may be a party.

[1] At all times here relevant, the Sheriff of Dukes County was Christopher S. Look, Jr. (Sheriff Look).

[2] The per diem fee during the period here relevant averaged approximately $85.

[3] As sheriff, Sheriff Look served as the unpaid chief court officer during the period here relevant.

[4] Mr. McCormack ceased serving as a paid per diem court officer in October 1988, when he learned that his services as such was prohibited by G.L. c. 30, §46(12), which bars such service by county employees receiving more than $20,000 in annual compensation from the county.

[5] It was one of Mr. McCormack’s responsibilities as Deputy Superintendent to keep and maintain records of the hours worked and the dates on which vacation, compensation, personal, sick and other leave time was taken by Jail employees.  Although Mr. McCormack kept and maintained such detailed records for other Jail employees, for himself he only recorded his monthly totals of hours worked and leave time taken.

[6] None of the exceptions apply in this case. See paragraph 16 below.

[7] "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, §1(k).

[8] “Financial interest” means any economic interest of a particular individual that is not shared with a substantial segment of the population of the county. See Graham v. McGrail, 370 Mass. 133, 345 N.E.2d 888 (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.

[9] The Commission is aware that, from time to time during the period here relevant, Mr. McCormack scheduled his wife, who was then a Jail employee, a deputy sheriff and an appointed per diem court officer, to work as a paid per diem court officer on days that she was also scheduled to work at the Jail.  This conduct raised questions under G.L. c. 268A.  The Commission, however, has decided not to make any findings or to impose any additional penalty with regard to this conduct by Mr. McCormack in light of the substantial penalty which Mr. McCormack is paying for his violations of G.L. c. 268A in connection with his own service as a paid per diem court officer.