Settlement  In the Matter of Paul Nowicki

Date:	08/31/1988
Organization:	State Ethics Commission
Docket Number:	360

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Paul Nowicki (Mr. Nowicki) pursuant to section 11 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, s.4(j)

On December 9,1987, the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, involving Mr. Nowicki, the Collector/Treasurer of the Town of Adams. The Commission concluded its inquiry, and on April 13, 1988, found reasonable cause to believe that Mr. Nowicki violated G.L. c. 268A, s.19.

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

1. At all times relevant to this matter, Mr, Nowicki was the elected Collector/Treasurer of the Town of Adams, and, accordingly, a municipal employee as defined in G.L. c. 268A, s.1(g).

2. John Nowicki is Mr. Nowicki's brother and thus a member of Mr. Nowicki's immediate family as that term is defined by G.L. c. 268A, s.1(e).

3. In August of 1986, Mr. Nowicki hired his brother, John, as Deputy Tax Collector for the Town of Adams. The position entitled John Nowicki to collect statutory fees for his services in collecting delinquent taxes.

4. General Laws c. 268A, s.19 provides in relevant part that, except as permitted by s.19, a municipal employee is prohibited from participating as such an employee in a particular matter in which, to his knowledge, a member of his immediate family has a financial interest.[1]

5. By hiring his brother for the position of Deputy Tax Collector in the Town of Adams, Mr. Nowicki participated as the Collector/Treasurer of the Town of Adams in a particular matter in which his brother had a financial interest, thereby violating s.19.

6. On or about August 25,1987, Mr. Nowicki attended an annual meeting of Massachusetts Collectors/Treasurers at which he attended a seminar on the conflict of interest law, including a discussion of nepotism.

7. Following this meeting, Mr. Nowicki asked for and received his brother's resignation from the position of Deputy Collector.

8. Subsequently, Mr. Nowicki reported the foregoing s.19 violation to the State Ethics Commission. The Commission was not aware of this violation from any other source.

9. Mr. Nowicki has stated, and the Commission has no evidence to the contrary, that he was unaware of the prohibitions of G.L. c. 268A, s.19 at the time he hired his brother.[2]  Page 366

10. Mr. Nowicki asserts in his defense that a number of town and state officials knew that he was hiring his brother and did not raise any objections. In support, he points out that the deputy tax collector position is a bonded position, and the bond application (which identified the person to be bonded as John Nowicki) had to be, and was, approved by the Town Administrator, signed by the Town Clerk and approved by the Commissioner of the Department of Revenue (DOR).

Assuming those officials were aware that Mr. Nowicki was appointing his brother,[3] their awareness is not a defense to Mr. Nowicki's s.19 violation. See, e.g., In the Matter of Edward Rowe, Jr., 1987 Ethics Commission 307.[4]

Based on the foregoing facts, 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 agreed to by Paul Nowicki:

1. that he pay to the Commission the amount of five hundred dollars ($500.00) as a civil penalty for his violation of s.19; and

2. that he 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] None of the s.19 exceptions applies to this case. 

[2] Ignorance of the law is no defense to a violation of G.L c. 268A. In the Matter of Joseph C. Doyle, 1980 Ethics Commission 11,13 See also, Scola v. Scola, 318 Mass. 1,7(1945). 

[3] While the local official, probably understood from the bond or in other ways that Mr. Nowicki was appointing his brother, it is doubtful that DOR officials made that connection at the time Mr. Nowicki appointed his brother. Indeed, when DOR officials did make the connection in 1987, they notified Mr. Nowicki of the conflict issue. 

[4] In certain narrowly defined circumstances, a public official's awareness and approval of a municipal employee hiring a family member can prevent a s.19(a) violation. Thus, s.19(b) (1) provides:

It shall not be a violation of this section (1) 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...

This exception is not available to elected officials who, by definition, do not have an "appointing official" within the meaning of the law. 

[5] As a general rule, the Commission considers a fine of $1,000.00 or more to be appropriate for a nepotism/hiring violation See, e.g., In the Matter of Thomas J. Nolan, 1987 Ethics Commission, 283. Given the mitigating factor of the Commission being made aware of the violation only through Mr. Nowicki, the Commission considers a reduction of the fine appropriate here.