Settlement  In the Matter of Robert J. Garvey

Date:	08/22/1990
Organization:	State Ethics Commission
Docket Number:	392

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Robert J. Garvey (Sheriff Garvey) 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. 268A, §4(j).

On January 24, 1990, the Commission initiated, pursuant to G.L. c. 2688, §4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Sheriff Garvey.  The Commission has concluded that inquiry and, on May 9, 1990, found

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reasonable cause to believe that Sheriff Garvey violated G.L. c. 268A, §23.

The Commission and Sheriff Garvey now agree to the following facts and conclusions of law:

Findings of Fact & Conclusions of Law

1.  Sheriff Garvey has been the Hampshire County Sheriff since September 1984. As such, he is a county employee as defined in G.L. c. 268A, §1(d).

2.  As sheriff, he has been responsible for, among other matters, the operation of the Hampshire County House of Correction (the Jail).  The Jail employs a number of full-time people, including, but not limited to, corrections officers and maintenance employees.  Sheriff Garvey has been the appointing authority for all of these positions.  These positions are not civil service protected.  Until September 1988, all Jail employees served at the pleasure of Sheriff Garvey until they had accrued five years of service.  After five years of service, they could only be terminated for cause. (As of September 1988, certain Jail employees became unionized and, pursuant to their union contract, after six months have certain grievance rights regarding termination.)

3.  Beginning in 1987, Sheriff Garvey, aided by various subcontractors, built a tennis court at his private residence.  By late summer 1988, construction of the tennis court was nearly complete; Sheriff Garvey needed only a fence around one end of the court.  (Because of the rising topography, no fence was necessary at the other end.)  According to Sheriff Garvey, in a conversation with the Jail’ s director of engineering, Sheriff Garvey said that he was going to have to engage a contracting company to finish the fence.  According to Garvey and the director of engineering, the director of engineering mentioned that he and several of the maintenance staff would be willing to do the work for Sheriff Garvey.  Sheriff Garvey and the director of engineering agreed that the hourly rate Sheriff Garvey would pay the men for this work was $15 an hour.[1]  According to both men, their original intention was to do the work on Saturdays.  However, after scheduling and weather­ related problems prevented that, the director of engineering proposed that the work be done during regular work hours using “personal time.”  According to both men, Sheriff Garvey approved that proposal on the conditions that the work be done in a manner that would not leave the institution without adequate maintenance staffing during those times when the men were using “personal time” to work on the fence, and that an accounting of hours spent on the project be kept.

4.  The director of engineering went to Sheriff Garvey’ s residence in Amherst and visited the site.  He prepared a sketch for the construction, which Sheriff Garvey approved.  The director of engineering then ordered the fencing and subsequently supervised the construction.  The fencing was picked up by a Jail employee in his personal vehicle at a building supply outlet and delivered to Sheriff Garvey’ s home by that employee on his private time.

5.  Sheriff Garvey paid for all materials used to construct the fence.

6.  Approximately one week after the fence was completed, each employee submitted “personal time” forms to the Jail and each submitted his hours to Sheriff Garvey for payment.  Their forms indicate that on October 14, October 27, November 7, November 8, and November 10, 1988, five Jail employees worked a total of 29.5 hours in constructing Sheriff Garvey’ s tennis court fence.[2]

7.  Sheriff Garvey’s cancelled checks indicate that he promptly paid these men the agreed upon $15 an hour, for a total payment of $442.

8.  According to the five maintenance employees, they did not feel any pressure to assist the Sheriff as described above.  In addition, they did not expect nor receive any special treatment for having provided the assistance.

9.  Section 23(b)(3) of G.L. c. 268A prohibits a state employee from knowingly, or with reason to know, acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties.

10. As the Commission recently observed,[3]

The Commission has consistently stated that public officials and employees must avoid entering into private commercial relationships with people they regulate in their public capacities.  In the Commission’s view, the reason for this prohibition is two-fold.  First, such conduct raises questions about the public official’s objectivity and impartiality.  For example, if lay-offs or cut-backs are necessary, an issue can arise regarding who will be terminated, the subordinate or vendor who has a significant private relationship with the public employee, or another person who does not enjoy such a relationship.  At least the

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appearance of favoritism becomes unavoidable.  Second, such conduct has the potential for serious abuse.  Vendors or subordinates may feel compelled to provide private services where they would not otherwise do so.  And even if in fact no abuse occurs, the possibility that the public official may have taken unfair advantage of the situation can never be completely eliminated.  Consequently, the appearance of impropriety remains [citations omitted].

11.  By hiring and paying Jail maintenance employees to work at his private residence during October and November of 1988 as detailed in paragraphs three through eight above, Sheriff Garvey entered into a significant private commercial relationship with Jail employees who work for him.  Such conduct would cause a reasonable person knowing these facts to conclude that those employees can unduly enjoy Garvey’s favor in the performance of his official duties.  Therefore, Sheriff Garvey violated G.L. c. 268A, §23(b)(3).

12.  Jail personnel records indicate that a certain correction officer (CO) worked at the Jail from 1984 to October, 1987.  According to that CO, he was personally interviewed by Sheriff Garvey when he was hired.  Sheriff Garvey could not recall being involved in the interviewing process, although he acknowledged approving all hirings.

13.  Sheriff Garvey owns a summer home in Kennebunkport, Maine.  He also owns real property in New Hampshire.

14.  According to Sheriff Garvey and the CO: At some time in late May or early June 1986, Sheriff Garvey and the CO discussed their familiarity with the Maine seacoast area.  At some point in the discussion, either the CO suggested that if ever Sheriff Garvey was making a trip to that area the CO would be happy to ride with him, or Sheriff Garvey may have said he would enjoy having the CO ride up with him and the CO replied he would like to go.  A few weeks later in June of 1986, Sheriff Garvey mentioned to the CO that he was driving to New Hampshire to pick up a refrigerator to take to Maine and asked if the CO would be interested in riding with him.  The CO said yes and offered to drive his own pick-up truck rather than having Garvey borrow one.  They drove to Nashua, New Hampshire where they obtained a small used refrigerator from a home.  They then took the refrigerator to Kennebunkport.  They had to remove an old refrigerator from Sheriff Garvey’s Kennebunkport summer home, and replaced it with the newer one.  They put the older refrigerator in the CO’s truck, and returned to Northampton.  The trip took approximately six to seven hours and involved travel over approximately 275 miles.

Sheriff Garvey gave the refrigerator, which was in working order, to the CO.  When the CO returned home with the refrigerator, he found that it did not fit into the area in which he intended to use it.  He offered it to other family members, and later disposed of it at a local landfill.

15.  Approximately two to three weeks later, the CO joined Sheriff Garvey and a second man on a trip to New Hampshire.  Once again, the CO used his own pick-up truck.  During the day, the three men moved a used refrigerator from a home in Nashua to Garvey’s summer cottage in Hampton, New Hampshire.  Sheriff Garvey bought sandwiches and beverages which the three men consumed at the beach before returning to Northampton.  The trip took approximately nine hours and involved travel of approximately 300 miles.

16.  On both of the above trips, Sheriff Garvey paid for all gas, tolls and food.  The CO was on his days off from work on both occasions.  He received no compensation from Sheriff Garvey for these trips.

17.  According to the CO, he did not feel any pressure to assist Sheriff Garvey as described above.  His assistance was totally voluntary.  He went to Maine because he wanted to see the area and Sheriff Garvey’s home, and also for the enjoyment and sociability of the trip.  He considered both trips to be pleasure trips.  In addition, according to the CO, he did these favors because he felt friendly towards Sheriff Garvey.  He did not expect or receive any raise or promotion for having provided such favors.  (In fact, the CO did not receive any raises or promotions while working at the Jail.)

18.  By using one of his own Jail employees to assist him in moving refrigerators, where that assistance involved approximately fifteen hours of that employee’ s time and approximately 575 miles on that employee’ s vehicle, Sheriff Garvey entered into a significant private relationship for his personal benefit with one of his own Jail employees.  This conduct would cause a reasonable person knowing these facts to conclude that this employee can unduly enjoy Sheriff Garvey’s favor in the performance of his official duties. Therefore, Sheriff Garvey violated G.L. c. 268A, §23(b)(3)[4]

19. The Commission acknowledges that Sheriff Garvey was not aware that his actions in hiring five

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Jail maintenance employees to do work at his private residence could constitute a violation of §23(b)(3), and that be took steps to avoid any violation by insisting that those employees do that work on their “personal time,” and by paying them by check at a reasonable rate.  As stated above, however, given the significant and simultaneous public and private relationships, in the Commission’ s view the only way for Sheriff Garvey to have avoided violating §23(b)(3) regarding these actions was to disclose this conduct in accordance with §23, which provides in pertinent part:

It shall be unreasonable to so conclude [i.e., that any person can improperly influence or unduly enjoy the state employees’  favor] if such officer or employee bas disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.[5]

20.  Similarly, the Commission acknowledges that Sheriff Garvey was not aware that his private dealings with the CO could constitute a violation of §23(b)(3).  He believed that any assistance he was receiving was based on friendship and that the employee’s interest in making the trips was for pleasure and sociability.  Again, however, avoidance of that violation arising from the simultaneous public and private relationships would, in the Commission’ s view, have required public disclosure as explained above.

Resolution

21. In view of the foregoing violations of G.L. c. 268A, 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 Sheriff Garvey:

1.  that he refrain from using Jail employees for any personal purposes,[6]  and

2.  that Sheriff Garvey waive all rights to contest the findings of facts, conclusions of law, and terms and conditions contained in this Agreement in this or in any related administrative or judicial proceeding in which the Commission is or may be a party.

[1] This appears to be a reasonable rate for these services.

[2] The Commission notes that the written Jail policy requires all personal time requests to submitted in advance.  Also, the monthly personnel reports for October and November 1988 to the County Commissioners enumerating, among other matters, personal time taken, did not reflect these hours; however, the information on the personal time forms does appear to have been recorded on the employee calendars kept at the jail.  (Jail officials explained that pursuant to the instructions of the County Commissioners, personal time taken in less than one half day amounts is not reported until the end of the year.)  In addition, these employees did not account for their whereabouts on the official Jail log for the occasions on which they left work during normal hours to work on Sheriff Garvey’ s fence.  (Jail officials explained that the policy requiring all employees to use the log is applied less strictly to maintenance employees, and in fact a review of the log indicates that maintenance vehicles were not rigorously logged when exiting from or returning to the Jail.)  Finally, these employees did not “punch out” on the time clock for these hours. (Jail officials explained that the time clock had been put into operation in October 1988 and employees frequently were forgetting to use it as of that time.)

[3] In the Matter of George Keverian, 1990 SEC 460.

[4] This appearance of impropriety is underscore by the fact that the CO served at the pleasure of Sheriff Garvey, and, therefore, could be terminated for any reason.  It is also exacerbated by the fact that Sheriff Garvey did not pay the CO for his time or for the mileage on the vehicle.  (We note, however, that even had be paid a fair rate for these services, that would            not have eliminated the appearance of impropriety.  See, e.g., In the Matter of George Keverian, 1990 SEC 460 (in a Disposition Agreement the Commission found it was an appearance of impropriety for the Speaker to hire his own maintenance staff to do work at his house, notwithstanding the fact that he appeared to have paid them at a reasonable rate for their time.)  See also the discussion above regarding Sheriff Garvey’s hiring his own maintenance staff to construct a fence around his tennis court.

[5] The Commission notes that this disclosure must be in writing and must be kept as a public record.  For example, Sheriff Garvey could have made a written disclosure to the County Commissioners to be maintained in its public files.  Alternatively, Sheriff Garvey could have made his written disclosure to the Ethics Commission which maintains various disclosures as public records.

[6] Where Sheriff Garvey paid the employees who worked on his fence what appears to be a reasonable rate, where the employees’  assistance on that fence and in moving refrigerators involved a relatively small amount of time and expense, where there is no indication of any explicit pressure having been exerted, and where Sheriff Garvey showed good faith and was unaware that his actions would constitute a violation of G.L. c. 268A, the Commission has decided not to impose a fine for these violations.