Settlement  In the Matter of Paul DeMoura

Date:	10/28/2010
Organization:	State Ethics Commission
Docket Number:	10-0023

Disposition Agreement

The State Ethics Commission ("Commission") and Paul DeMoura ("DeMoura") 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 September 18, 2009, 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 DeMoura. On June 18, 2010, the Commission concluded its inquiry and found reasonable cause to believe that DeMoura violated G.L. c. 268A.

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

Findings of Fact

1. DeMoura was the Town of Dighton ("Town") Highway Department ("DHD") Superintendent from 1988 to July 31, 2008, when he retired. As such, DeMoura was a municipal employee as that term is defined in G.L. c. 268A, § 1.

2. As the DHD Superintendent, DeMoura had the authority to hire temporary workers, such as seasonal snowplow operators. As to permanent DHD employees, DeMoura had the authority to recommend who should be hired, subject to the Board of Selectman's approval.

3. DeMoura has two sons, Derek and Christopher.

Derek ("Derek") DeMoura

4. In 2005 the Town sought to fill two full-time DHD laborer/driver vacancies. The Town placed an advertisement in a local paper. Only two prospective candidates applied for the positions, one of whom was Derek.

5. As the DHD Superintendent, DeMoura interviewed both applicants and then recommended both be appointed as DHD employees by the Board of Selectmen ("BOS").

6. The BOS hired Derek at an annual salary of $47,000. When the BOS hired Derek, its members knew that Derek was DeMoura's son. The BOS also approved hiring the other candidate.

7. Derek worked as a DHD laborer/driver from 2004 until 2009.

Christopher ("Chris") DeMoura

8. As the DHD Superintendent, DeMoura had the authority to unilaterally hire part-time seasonal employees.

9. In February 2005, the DHD needed an additional part-time snowplow driver ("Driver").

10. At that time, DeMoura first offered the

Driver job to Chris, but Chris was not initially interested. At the time of this offer, Chris and Lynn Moody ("Moody") were in a dating relationship and living together. DeMoura asked Moody if she wanted the Driver job. She said she did, and DeMoura hired Moody for the job.

11. Moody, however, never worked as a Driver for the DHD. Rather, whenever she was called to snowplow, Chris filled in for her.

12. Some time after DeMoura hired Moody, but no later than February 2006, DeMoura observed that Chris was driving the snowplow truck, not Moody. From the time he first saw Chris plowing instead of Moody, DeMoura was aware that Chris was doing the work for the Town, not Moody. Thereafter, instead of calling Moody, DeMoura regularly called Chris in to work when he needed another Driver.

13. DeMoura did not prepare or complete the paperwork required to put Chris on the payroll instead of Moody, and he did not see any need to do so. According to DeMoura, he did not care who did the plowing as long as "there was someone in the seat."

14. DHD payroll records prepared and signed by DeMoura and submitted to the Town accountant indicate that between February 2005 and March 2008, Moody was paid a total of $2,755.17 for snowplow driving on approximately 16 occasions. Internal DHD records maintained by DeMoura, and not sent to the Town accountant, however, indicate that DeMoura, under the impression that Moody was initially doing the driving, credited Moody for the work on the first seven of those 16 occasions. Beginning in February 2006, however, when DeMoura learned that Chris was doing the driving rather than Moody, DeMoura credited Chris for the snowplowing on the next nine occasions, totaling $1,066.27 in pay.

15. When Moody received her DHD paychecks for the snowplowing, she applied the proceeds from those checks to cover her and Chris' joint living expenses.

16. According to DeMoura, he had no knowledge that, at the time he hired Moody, Chris would be driving the plow truck for her.

17. In or about early 2008, DeMoura had Chris complete the paperwork necessary to put Chris on the DHD payroll as a Driver. DeMoura then put Chris officially on the DHD payroll as a Driver.

18. Chris remained on the DHD payroll as a Driver through March 2008, earning a total of only approximately $50 as a Driver. He was not rehired the following winter season.

Conclusions of Law

Derek

19. Except as otherwise permitted,[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 or an immediate family member[4]  has a financial interest.[5]

20. DeMoura's decision in 2005 to hire Derek as a full-time DHD driver was a particular matter.

21. DeMoura participated in that particular matter as the DHD Superintendent by interviewing the two candidates for the two openings, and by recommending that Derek and the other candidate be hired.

22. As DeMoura's son, Derek is a member of DeMoura's immediate family.

23. Derek had a financial interest in the particular matter because the decision involved awarding a job paying $47,000 per year.

24. At the time of his participation, DeMoura knew that Derek had a financial interest in the particular matter.

25. Accordingly, by participating in the particular matter concerning Derek, DeMoura violated § 19.

26. That the BOS knew that Derek was DeMoura's son when it approved DeMoura's recommendation is a mitigating factor, but not a defense. [6]

Chris

Section 19

27. DeMoura's first decision, which he made no later than in February 2006, to allow Chris to fill in for Moody as a Driver was a particular matter. Therefore, DeMoura made a new decision each time he allowed Chris to fill in for Moody.

28. DeMoura participated in these decisions by, as the DHD Superintendent, unilaterally making them.

29. As DeMoura's son, Chris is a member of DeMoura's immediate family.

30. Chris had a financial interest in these decisions because the payments earned from this work were used to cover Chris and Moody's joint living expenses.

31. At the time DeMoura participated in these decisions, he knew that it was reasonably foreseeable that Chris would financially benefit from being allowed to fill in for Moody as a Driver.

32. Accordingly, by participating in these decisions concerning Chris as described above, DeMoura repeatedly violated § 19.

33. In addition, the decision in 2008 to put Chris on the payroll was a particular matter in which Chris had a financial interest.

34. DeMoura participated in that decision by, as DHD Superintendent, unilaterally making the decision.

35. DeMoura knew that Chris had a financial interest in that decision.

36. Accordingly, by participating in that 2008 decision to put Chris on the payroll, DeMoura violated § 19.

Section 23(b)(2)

37. Section 23(b)(2) of G.L. c. 268A prohibits a state employee from, knowingly, or with reason to know, using or attempting to use 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. [7]

38. DeMoura used his official position by, as the DHD Superintendent, allowing Moody from February 2006 through March 2008, to remain on the payroll as a Driver while Chris was doing the driving, and by, for that same time period, submitting payroll records to the Town Treasurer indicating that Moody was doing the driving when, in fact, Chris was doing the driving.

39. Being hired and retained on the payroll as a Driver was a privilege.

40. This privilege was of substantial value because the Driver position was a paid position.

41. As to Moody, the privilege was unwarranted from two perspectives. First, it involved retaining Moody on the payroll and compensating her for work she did not perform. Second, it involved Chris doing work for the Town that was not properly authorized.

42. This unwarranted privilege was not properly available to similarly situated individuals.

43. By allowing an arrangement by which (1) his son Chris' girlfriend was retained on the payroll as a Driver, but DeMoura would call in his son Chris to do the driving, and (2) the town paycheck for the driving would be issued to the girlfriend, DeMoura knowingly or with reason to know used his official position to obtain an unwarranted privilege of substantial value for his son and/or his son's girlfriend that was not properly available to other similarly situated individuals. Therefore, in so acting, DeMoura violated § 23(b)(2).

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

(1) that DeMoura pay to the Commonwealth of Massachusetts, with delivery of the payment to the Commission, the sum of $1,000 [8] as a civil penalty for violating G.L. c. 268A, §§ 19 and 23(b)(2); and

(2) that DeMoura 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] "Immediate family" means the employee and his spouse, and their parents, children, brothers and sisters. G.L. c. 268A, § 1(e).

[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. EC-COI-84-96.

[6] For DeMoura to properly participate in Derek's hiring, DeMoura would have had to obtain a determination from his appointing authority, the BOS, that his participation was acceptable notwithstanding Derek's financial interest in the matter. See § 19(b)(1), which provides:

It shall not be a violation of this section 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 affect the integrity of the services which the municipality may expect from the employee.

[7] G.L. c. 268A was amended by c. 28 of the Acts of 2009. The language of § 23(b)(2) now appears in § 23(b)(2)(ii) of G.L. c. 268A, as amended.

[8] The relatively small fine reflects in part that on September 24, 2010, DeMoura entered into a consent judgment with the Office of the Attorney General in which he paid a total of $5,690.81 in restitution and civil penalties for violations of G.L. c. 12, § 5B (False Claims Acts), which violations involved in part the same claims for Driver payments as are described in the present Disposition Agreement.