Settlement  In the Matter of Paul X. Tivnan

Date:	01/11/1988
Organization:	State Ethics Commission
Docket Number:	348

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Paul X. Tivnan (Mr. Tivnan) 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 April 27, 1987, the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, involving Mr. Tivnan, a County Commissioner in Worcester County. The Commission concluded its inquiry and, on May 18, 1987, found reasonable cause to believe that Mr. Tivnan violated G.L. c. 268A, s.13. 

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

1. Mr. Tivnan is an elected Worcester County Commissioner and was a County Commissioner at all times relevant to this proceeding. As a County Commissioner, Mr. Tivnan is a county employee as that term is defined in G.L. c. 268A, s.1(d).

2. Mr. Tivnan's son, Michael Tivnan, and Mr. Tivnan's daughter, Maureen Anderson, are members of Mr. Tivnan's immediate family as defined in G.L. c. 268A, s.1(e). Michael Tivnan and Maureen Anderson are employees at the Worcester County House of Correction.

3. On January 6, 1987, Worcester County Sheriff-elect John Flynn requested, in writing, a transfer of approximately $18,000 from the Worcester County Reserve Account to the House of Correction budget to fund certain promotional changes involved in Flynn's proposed re-organization of the Jail and House of Correction. The approval of reserve fund transfers requires the presence of three voting County Commissioners. After approval by the County Commissioners, a request for reserve fund transfer is sent to the Worcester County Advisory Board for the approval of that Board.

4. The Sheriff-elect's request was sent to the County Commissioners through the Worcester County Manager and included a list of the promotional changes. The list named seventeen individuals and included Michael Tivnan (Michael) and Maureen Anderson (Maureen) among those being promoted and set forth the respective dollar amounts by which their annual salaries were being increased (Michael - $506.75, Maureen - $519.93).

5. On January 15, 1987, the County Commissioners voted to request the approval of the County Advisory Board of a transfer of $17,754.30 from the Reserve Fund to the Jail and House of Correction to he used to fund salary increases for the promoted employees. Mr. Tivnan was present, voted in favor of the request and signed the request. The request form which Mr. Tivnan signed referred to a copy of the Sheriff- elect's request which was attached to it.[1]

6. On January 18, 1987, the Executive Committee of the County Advisory Board voted to approve the transfer request.

7. On January 28, 1987, Sheriff Flynn submitted to the County Commissioners, pursuant to G.L. c. 35, s.s.4 & 56, Notice of intent to Fill a vacancy or to establish a New Position forms relating to the promotions and salary increases of Michael and Maureen which were funded by the January 15, 1987 vote. On February 4 and February 11, 1987, the County Commissioners respectively approved Michael's and Maureen's promotions, by signing the Notice of Intent forms relating to them. Mr. Tivnan did not sign Michael's or Maureen's Notice of Intent forms, which were signed by the two other County Commissioners.

8. On or before February 4, 1987, there were media reports concerning Mr. Tivnan's participation in the January 15, 1987 vote of the County Commissioners.

9. On February 9, 1987, at Mr. Tivnan 's request, the attorney for the County called the Legal Division of the Commission concerning Mr. Tivnan's participation in the January 15, 1987 vote. The County's attorney was advised that Mr. Tivnan should self- report to the Commission's Enforcement Division in order to resolve the matter.

10. On February 10, 1987, at the request of Mr. Tivnan, the County's attorney contacted the Commission's Enforcement Division and informed the division that Mr. Tivnan intended to seek Commission review of his role in the January 15, 1987 vote. The County's attorney confirmed this information by letter dated February 11, 1987.

11. On February l0, 1987, at a meeting of the County Commissioners, Mr. Tivnan informed the other two County Commissioners of his intent to request a Commission review of his participation in the January 15, 1987 vote and stated that he would leave the room if there was to be any further discussion of that matter. At the same meeting, while Mr. Tivnan was not present, the remaining two County Commissioners voted to reconsider the January 15, 1987 vote on February 17, 1987.

12. On February 17, 1987, Charles Hudson was appointed as acting County Commissioner because Mr. Tivnan had disqualified himself, pursuant to G.L. c. 34, s.12.[2]

13. At the County Commissioners' meeting of February 17, 1987, the January 15, 1987 vote was rescinded 

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and cancelled. Mr. Tivnan did not attend the meeting, and Mr. Hudson participated as acting County Commissioner.

14. Also at the February 17, 1987 meeting, the County Commissioners, with Mr. Hudson as acting County Commissioner, voted to approve the transfer request after a presentation by Sheriff Flynn.

15. Mr. Tivnan submitted a letter to the Commission dated February 26, 1987 disclosing the relevant facts in this matter and included copies of pertinent documents.

16. Except as permitted in that section, G.L. c. 268A, s.13 prohibits a county 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. None of the exceptions to s.13 applies to this matter.

17. The approval of the Reserve Fund transfer request to fund promotional changes on January 15, 1987; was a particular matter as that term is defined in G.L. c. 268A, s.1(k). By voting on the transfer request, Mr. Tivnan participated in a particular matter in which he knew members of his immediate family had a financial interest, thereby violating s.13.

18. The Commission has found no evidence suggesting that Mr. Tivnan intentionally violated the conflict of interest law.[3]

Based upon 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 Mr. Tivnan:

1. that he pay to the Commission the amount of five hundred dollars ($500.00) as a civil penalty for violating s.13;

2. that in the future he refrain from participating in any particular matter in which any member of his immediate family has a financial interest; and

3. that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions proposed under this Agreement in this or any related administrative or judicial civil proceedings in which the Commission is or may be a party.

[1] Mr. Tivnan knew when he signed the request that it would affect the organization and salary structure of the department in which his son and daughter were employed, matters in which Mr. Tivnan was aware his children had a financial interest. 

[2] Section l2 of G.L c. 34 states in pertinent part: In case of inability to attend, or interest in a question before the commissioners, or if any part of a highway relative to which they are to act lies within the town where a commissioner resides, the commissioners qualified to act and the clerk of court, for the county shall appoint one or more persons. not residing in the same town as any commissioner, nor in the same town with each other, if more than one, to act as commissioners in place of those absent or disqualified, until such absence or disqualification ceases. 

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