Related to:

Settlement In the Matter of Roger H. Muir

Date: 09/17/1987
Organization: State Ethics Commission
Docket Number: 340

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Roger H. Muir (Mr. Muir) 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 May 18,1987, the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, involving Mr. Muir, Regional Director, Northeast Region, Division of Employment Security (DES). The Commission concluded its inquiry and, on July 27,1987, found reasonable cause to believe that Mr. Muir violated G.L. c. 268A, s.6. Pursuant to G.L. c. 268B, s.4(c), the Commission also authorized the initiation of an adjudicatory proceeding to determine whether there had been a violation.

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

1. Mr. Muir is the DES Regional Director, Northeast Region. He has been in that position since August, 1983. The Northeast Regional Office is located in Lawrence, Massachusetts. Prior to that time, Mr. Muir served as Regional Director in the Metropolitan Region from October, 1982 until August, 1983. As such, he is a "state employee," as that term is defined in G.L. c. 268A, s.1(q), and has been at all times relevant to the events contained in this Agreement.

2. Mr. Muir's son, Roger P. Muir, became employed at the DES office in Lynn on March 9,1978 as a junior clerk. Mr. Muir played no role in the hiring or supervision of his son.

3. In approximately 1981, the Boston Region (in which Mr. Muir worked) and the Metropolitan Region (in which his son worked) merged. Mr. Muir was the deputy director of the combined region, but had no authority over his son.

4. In October, 1982, Mr. Muir became regional director and became the supervising authority for his son in the region. As supervising authority, Mr. Muir signed his son's performance evaluation for the period of June 7,1982 to June 1,1983. In August, 1983, Mr. Muir was transferred and became regional director of the Northeast Region; his son was no longer in his chain of command.

5. On February 15,1985 a vacancy announcement was posted by DES for an employee service representative (ESR) position in the Lawrence office. There were three applicants for the position, including Mr. Muir's son. The DES employment office forwarded the applications with recommendations from the applicants' supervisors to the manager of the Lawrence post of duty. The manager interviewed each applicant, and then recommended Mr. Muir's son for the vacancy, which was in effect a promotion recommendation. The promotion recommendation was forwarded up the line to the next supervisor, who was Mr. Muir.

6. Customarily, the Deputy Director of Field Operations reviews a promotion package after Mr. Muir signs off on it, and then forwards it to the Personnel Department for their actions. Mr. Muir advised the Deputy Director of Field Operations that his (Muir's) son had applied for an ESR position in the Lawrence office and that he, Muir, wanted to ensure that he did the right thing because the applicant was his son. They agreed that Mr. Muir would turn over the responsibility for filling the ESR position to the Deputy Regional Director. Mr. Muir's deputy did handle the review and selection stage of the process he customarily did this for all ESR applicants in any event and recommended 

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Mr. Muir's son for the position. Mr. Muir, however, subsequently approved the hiring by signing the promotion package. He then forwarded it to the Deputy Director of Field Operations. After the package was approved by the Deputy Director of Field Operations, it was forwarded to the Personnel Director of Human Services, who checked it for procedural correctness, and handled the paperwork for the promotion.

7. Mr. Muir signed his son's performance evaluations for the periods of March 16,1985 through March 16,1986 and March 15,1986 through March 15,1987. The performance evaluations signed by Mr. Muir included a notation as to whether the employee should or should not be eligible for a step increase. He did not inform the Deputy Director of Field Operations that he would be doing these evaluations.

8. Section 6 of G.L. c. 268A, except as otherwise permitted in that section, provides in relevant part that a state employee is prohibited from participating as such an employee in a particular matter in which he knows his immediate family has a financial interest The exception in s.6 was not followed in this case as is discussed more fully below.

9. By Mr. Muir's signing his son's promotion recommendation in March of 1985 and also by signing his son's performance evaluations for the periods of March 16, 1985 through March 15, 1986 and March 16, 1986 through March 15,1987, he participated in particular matters in which he knew his son had a financial interest, and thereby violated G.L. c. 268A, s.6.

10. The Commission has no evidence to suggest that Mr. Muir was aware that his actions violated G.L. c. 268A when he signed the personnel evaluations and promotion package which resulted in his son receiving pay raises.[1] Indeed, as indicated above, Mr. Muir appears to have taken certain steps to inform his supervisor that his son was seeking a promotion.

Thus, an argument could be made that a state employee who discloses a s.6 conflict to his supervisor ought to be able to rely on the supervisor's permission to participate in the promotion process. Strict compliance with s.6 requires, however, that the disclosure be in writing and that authorization to participate be given by the appointing authority.[2] Such strict compliance is necessary to insure that all due consideration is given to issues with potential controversy and potential for abuse. In the Matter of John Hanlon, 1986 SEC 299.

Here, however, Mr. Muir made his disclosure to his immediate supervisor and not his appointing authority. In addition, the disclosure was not put into writing or filed with the Commission. Finally, as to the 1986 and 1987 performance evaluations, no disclosure was made.

A further argument could be made that Mr. Muir was not personally and substantially involved in the promotion and performance evaluations,and therefore he did not participate in those decisions. In this view the signatures were insignificant. He merely forwarded along the chain of command decisions which were made by subordinates, and in which he took no part. This argument is unpersuasive. Absent Mr. Muir's signature, neither the promotional package nor the performance evaluations would be finally processed, and Mr. Muir's son would not become eligible for either the promotion or the yearly step increases. Second, based on the facts, it appears that Mr. Muir's role regarding those decisions was the same both before and after his disclosure: as regional director he had and exercised approval authority as evidenced by his signature.

Nonetheless, the Commission has given consideration to Mr. Muir's having made a disclosure to his supervisor regarding the 1985 promotion and his efforts to distance himself from the decision-making process when his son was involved. While the Commission can impose up to a $2,000 fine for each violation of s.6, it has determined that a small fine here properly reflects these mitigating factors. That it has insisted on a public resolution and a fine reflects the importance the Commission places on proper compliance with s.6's disclosure and exemption provisions. These provisions are more than mere technicalities. They protect the public interest from potentially serious harm. The steps of the disclosure and exemption procedure particularly that the determination be in writing and a copy filed with the Commission are designed to prevent an appointing authority from making an uninformed, ill-advised or badly motivated decision. Imposing a fine also should act as a deterrent in making clear that ultimately the primary responsibility for compliance with these provisions rests on the public employee seeking the exemption.

11. In view of the foregoing violations of G.L. c. 268A, s.6. 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. Muir:

1. that he pay to the Commission the amount of two hundred fifty dollars ($250) as a civil penalty for his violation of G.L. c. 268A, s.6;

2. that so long as he is a state employee, if his duties would otherwise require him to participate in any particular matter in which an immediate family member has a financial interest, he must follow the procedure set out in G.L. c. 268A, s.6; 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 a party.

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[1] 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). 

[2] G.L. c. 268A, s.6 provides in pertinent part:

Any state employee whose duties would otherwise require him to participate in such a particular matter shall advise the official responsible for appointment to his position and the state ethics commission of the nature and circumstances of the particular matter and make full disclosure of such financial interest, and the appointing official shall thereupon either:

1. Assign the particular matter to another employee; or

2. Assume responsibility for the particular matter; or

3. Make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Commonwealth may expect from the employee. in which case it shall not be a violation for the employee to participate in the particular matter. Copies of such written determination shall be forwarded to the employee and filed with the State Ethics Commission by the person who made the determination. Such Copies shall be retained by the Commission for a period of six years.


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