Foskett hired his brothers and his son to plow snow for the town, hired his son to build retaining wall for new Highway Department Bar
The State Ethics Commission approved a Disposition Agreement in which Gerry Foskett, the Town of Charlton Highway Department Superintendent, admitted to violating G.L. c. 268A, the conflict of interest law, on multiple occasions, by hiring three of his brothers and his son to plow snow for the Town, and by hiring his son to build a retaining wall at the new Highway Department Barn. Pursuant to the Agreement, Foskett paid a $7,500 civil penalty.
Section 19 of the conflict of interest law prohibits a municipal employee from participating in a particular matter in which, to his knowledge, he or an immediate family member has a financial interest. Immediate family members include the employee’s siblings and children. Under section 19(b)(1), a municipal employee is permitted to participate in such a matter only if he files a written disclosure with his appointing authority of such financial interest and receives a written determination from his appointing authority that the financial 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. If the employee does not obtain such a determination from his appointing authority, he may not participate in the matter.
Section 23(b)(3) of the conflict of interest law prohibits a municipal employee from acting in a manner which would cause a reasonable person with 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, or that he is likely to act or fail to act as a result of kinship. The section further provides that it shall be unreasonable to so conclude if the public employee has first disclosed in writing to his appointing authority the facts which would otherwise lead to such a conclusion.
According to the Agreement, in 2002, Foskett sought advice from the Commission’s Legal Division about hiring his brother, uncle and nephew for snowplowing. Because the uncle and nephew are not Foskett’s “immediate family” members, the Legal Division advised Foskett to file a § 23(b)(3) disclosure with his appointing authority to dispel the appearance of a conflict of interest before hiring them. The Legal Division also advised Foskett to file a § 19(b)(1) disclosure and obtain “written permission” from his appointing authority prior to hiring his brother, a member of his immediate family.
In 2010 through 2013, Foskett hired two of his brothers and his son to plow snow for the Town. Foskett approved payments by the Town to his brothers and his son totaling approximately $44,000 for the snowplowing work. Foskett did not file section 19(b)(1) disclosures with the Board of Selectmen (BOS), his appointing authority, and did not obtain permission from the BOS to hire his brothers and son, as he was advised to do by the Legal Division. Instead, Foskett filed § 23(b)(3) disclosures with the Town Clerk’s office. Foskett therefore violated § 19 on each occasion that he hired his brothers and his son to snowplow for the town since he did not obtain permission from the BOS to do so.
From 2011 through 2013, Foskett hired WSF Plowing, a snow removal company operated by his sister-in-law, to plow snow for the Town. Foskett’s brother performed the snow removal work for the company, while Foskett’s sister-in-law maintained WSF Plowing’s financial records. Foskett knew his brother, an immediate family member, had a financial interest in the snowplowing work that WSF performed for the Town, even though his sister-in-law operated the company. Foskett approved payments to WSF Plowing totaling approximately $14,000. Foskett did not file any disclosure regarding WSF Plowing. According to the Agreement, by hiring and approving payments to WSF Plowing, while knowing that his brother had a financial interest in those decisions, Foskett violated § 19.
In March 2012, the Highway Department required a contractor to construct a retaining wall for its new barn. Foskett’s administrative assistant solicited a quote from Foskett’s son, who submitted a quote of $750 to construct the retaining wall. Foskett accepted his son’s quote and approved payment of $750 to his son for constructing the retaining wall. Foskett filed a § 23(b)(3) disclosure with the Town Clerk’s office, instead of the required § 19(b)(1) disclosure with the BOS. Foskett did not obtain written permission from the BOS to hire his son to construct the retaining wall. By accepting his son’s quote and approving payment to his son for constructing the retaining wall, Foskett violated § 19 in this instance as well.