Settlement  In the Matter of Michael O'Donnell

Date:	12/08/2011
Organization:	State Ethics Commission
Docket Number:	11-0024

Disposition Agreement

The State Ethics Commission and Michael O’Donnell, Jr. (“O’Donnell”) 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, § 4(j). 

On June 16, 2011, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into O’Donnell’s possible violations of the conflict of interest law, G.L. c. 268A.  The Commission concluded its inquiry and, on November 18, 2011, found reasonable cause to believe that O’Donnell repeatedly violated G.L. c. 268A, § 19.

The Commission and O’Donnell now agree to the following findings of fact and conclusions of law:

Findings of Fact

1. O’Donnell has been an elected Town of Carver (“Town”) Board of Selectmen (“BOS”) member since 2005.
    
2. O’Donnell has been a full-time sergeant with the Carver Police Department since September 2000.  As such, he is a member of the Carver Police Union (“Union”) and is subject to the collective bargaining agreement between the Union and the Town.
    
3. The Carver Town Administrator is responsible for negotiating all Town labor contracts, including the collective bargaining agreement with the Union.  The Town and the Union have been in negotiations for several years, during which period the police have been without a contract.  The negotiations have been referred to a state arbitrator, but the Town Administrator still participates in the negotiations.
    
4. In March 2006, the Commission learned that O’Donnell had participated as a selectman in BOS executive session negotiations regarding the renewal of the Town Administrator’s employment contract.  In a June 5, 2006 letter, the Commission advised O’Donnell that his participating as a selectman in matters concerning the Town Administrator’s employment contract would violate G.L. c. 268A, § 19 because the Town Administrator was involved in negotiations with the Union.  That is, O’Donnell, as a Union member, had a financial interest in who would conduct those negotiations on behalf of the Town.  See EC-COI-93-17 (a selectman, who is also a teacher in the same town, is prohibited by § 19 from evaluating the town manager's performance or re-negotiating his contract, while the manager is negotiating with the teachers union on behalf of the school department).
    
5. In early 2011, the BOS began considering another new employment contract for the Town Administrator.   
    
6. On February 22, 2011, the BOS met in executive session to discuss strategy regarding the Town Administrator’s contract.  O’Donnell participated in this portion of the meeting as a selectman.  The Town Administrator was then invited into the executive session to negotiate with the BOS.  O’Donnell was not present for that portion of the meeting.
    
7. The BOS followed the same format at its March 8, 2011 meeting.  This time, O’Donnell participated in both the strategy and the negotiation portions of the executive session regarding the Town Administrator’s contract.
    
8. In a telephone interview on March 22, 2011, with Commission Enforcement Division staff, O’Donnell confirmed that he participated in the two BOS executive session portions of the meetings regarding the Town Administrator’s contract.  When Commission Enforcement Division staff asked O’Donnell why he had not heeded the advice in the Commission’s 2006 letter, he stated he could not recall receiving the letter, and, in any case, he thought he was only prohibited from participating as a selectman in matters concerning the police department.  The Commission Enforcement Division staff advised O’Donnell that his understanding was incorrect and that he should abstain from involvement in the Town Administrator’s contract.  On March 22, 2011, the Commission Enforcement Division staff mailed a copy of the June 5, 2006 letter to O’Donnell.
    
9. On March 24, 2011, O’Donnell left Commission Enforcement Division staff a voicemail stating that he had received the copy of the 2006 letter.  In the message, O’Donnell said that he had read the letter, and he then stated, "This is not something you guys are going to have to worry about in the future."
    
10. On March 28, 2011, the then-BOS chairman emailed BOS members to remind them that the BOS was scheduled to resume contract negotiations in executive session with the Town Administrator on March 29, 2011.  On the afternoon of March 28, 2011, O’Donnell forwarded the chairman’s e-mail to a fellow BOS member.  In the message, sent from O’Donnell’s private e-mail account to the other BOS member’s private e-mail account, O’Donnell wrote that he must “caution” the BOS member that, if that BOS member attended the BOS meeting, “You will give them a quorum to conduct a vote.”  In addition, O’Donnell stated in his e-mail that the citizens of Carver “would not want me to support something as egregious as this during this recession.” 
     
11. At the March 29, 2011 BOS meeting, in executive session, on a 2-1 vote, the BOS agreed upon a new contract with the Town Administrator.  O’Donnell did not participate in discussion or vote on this matter.
     
12. O’Donnell states that he received the Commission's June 5, 2006 letter and sought no clarification from the Commission at that time.  O’Donnell thought that the prohibition on him participating in matters concerning the Town Administrator’s contract meant that he could not be present in the room and actively participate when the BOS discussed the Town Administrator's contract, or actively participate in such discussions with individual selectmen.  O’Donnell claims that he did not understand that the e-mail that he sent to a fellow BOS member about the Town Administrator's contract constituted participating in the matter.

Conclusions of Law

13. As a Carver BOS member, O’Donnell is a municipal employee as that term is defined in G.L. c. 268A, § 1.

14. Except as otherwise permitted by exemptions to the section,^[1] § 19 of G.L. c. 268A prohibits a municipal employee from participating^[2] as such an employee in a particular matter^[3] in which, to his knowledge, he has a financial interest.^[4]

15. The Town Administrator’s contract was a particular matter.

16. O’Donnell, as a BOS member, participated in the Town Administrator’s contract by significantly involving himself in the February 22, 2011 and March 8, 2011 BOS executive session discussions regarding the Town Administrator’s contract.

17. O’Donnell, as a BOS member, also participated in the Town Administrator’s contract on March 28, 2011, by sending an e-mail to another BOS member in which he advocated against the Town Administrator’s contract and advised the other BOS member not to attend the March 29, 2011 BOS meeting so that there would not be a quorum to consider the Town Administrator’s contract.

18. O’Donnell had a financial interest in the Town Administrator’s contract because the Town Administrator was the lead negotiator for the Town in negotiations with the Union regarding a contract that would affect O’Donnell as a Union member.

19. At the time of his participation, O’Donnell knew that he had this financial interest in the Town Administrator’s contract.

20. Accordingly, by so participating as a BOS member in the Town Administrator’s contract discussions, O’Donnell violated § 19.

21. That the Commission in 2006 warned O’Donnell not to participate in the Town Administrator’s contract under similar circumstances is an exacerbating factor.

In view of the foregoing violations of G.L. c. 268A by O’Donnell, 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 O’Donnell:

(1) that O’Donnell pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $2,000 as a civil penalty for violating G.L. c. 268A, § 19; and,

(2) that O’Donnell 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.

^[1] None of the exemptions applies.

^[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, § 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, § 1(k).

^[4] “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.  EC-COI-84-96.