Debate centers around conflicting laws
A scant quorum of the State Ethics Commission heard closing arguments on Friday, Feb. 19, in the conflict-of-interest case initiated in 2007 involving Harvard Schools Superintendent Thomas Jefferson and former School Committee member Paul Wormser. Only two commissioners were present in person, with a third participating on speaker phone.
At the heart of the case, according to Commissioner Jeanne Kempthorne, who was the only commissioner to question the lawyers during their concluding arguments, is the conflict between two laws. One is Chapter 28, Section 23 (b), parts 2 and 3, of the General Laws of Massachusetts, which pertain to the conduct of public officials. The other is Chapter 71, Section 34 of the General Laws, along with the Code of Massachusetts Regulations, 603 CMR 23, both of which pertain to the confidentiality of student records.
—Michael J. Long
The charges that warranted the ethics hearings allege that Jefferson and Wormser violated two ethics provisions. One provision bars a person from using his or her official position to obtain “unwarranted privileges … which are not properly available to similarly situated individuals.” The second provision forbids an official to “act 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.” This same law states that an official can avoid that suspicion by publicly disclosing the matter in question, in this case to the School Committee.
Jefferson and Wormser have contended that they were prohibited from making such a public disclosure by state laws that restrict who can have access to student records—generally only parents. In addition, the Department of Elementary and Secondary Education’s (DESE) regulations say that school administrators “shall be responsible for the privacy and security of all student records.”
Attorney Mark Walter, staff counsel for the Enforcement Division of the Ethics Commission, summarized the case against Jefferson and Wormser. The key period, Walter said, was between January 2005 and September 2006. During those months, Walter charged, the two men’s “actions and in many respects their inactions demonstrate that they violated the conflict of interest law.”
From the beginning of the case, there has been virtually no disagreement over the sequence of events, only over the interpretation to be put on them. As Walter recounted the case, between January and June 2005, Wormser expressed increasing dissatisfaction with his daughter’s individual education plan (IEP) to then-superintendent Mirhan Keoseian. In June 2005, the Wormsers informed the school by e-mail that they were withdrawing their daughter. According to then-director of Special Education Charles Horn, they did not mention any intent to seek reimbursement.
Dr. Thomas Jefferson was hired as superintendent in July 2005. In the fall of 2005, Wormser (who was then chairman of the School Committee) raised the issue of partial reimbursement with Jefferson in discussions after their regular meetings on school business. By June 2006, as summarized by Walter, Jefferson had approved payments of $15,000 per year for up to three years for tuition and supplementary services for Wormer’s daughter.
Commissioner Kempthorne noted that “the toughest question was whether the privilege [the reimbursement] was unwarranted.” She asked Walter, “Do we base that on the outcome, on the process, on what was in front of him [Jefferson]?”
Walter responded, “The process was insufficient.” He argued that the commissioners should not consider the reasonableness of the outcome at all. “That is what I am struggling with,” Kempthorne replied.
Kempthorne then asked if there was any legal precedent for looking only at the process and disregarding the outcome, even if it was correct or “a good deal for the school.” Walter cited a case in which a contract was ruled void because of unethical procedures, even though the winning bidder was considered the best choice.
Kempthorne asked Walter how he would resolve the conflict between the ethics provisions and the confidentiality requirements. Walter asserted that Jefferson could have filed a disclosure that he had been approached by a School Committee member for reimbursement, even if doing so might have revealed the student’s identity to some people in the town. Walter argued that there is “an equally compelling interest that the people’s business be done in the open.”
Kempthorne then turned to Michael J. Long, Jefferson’s attorney, and asked him whether there could have been accommodation that addressed both the ethics law requirements and the question of student confidentiality.
Long argued that student privacy rights are paramount, and “personally identifiable information may not be disclosed.” Challenged by Kempthorne to cite case law, however, Long admitted, “I cannot point to a case.” But he referred to the hearing testimony of Lucy Wall of the DESE’s Legal Office, who testified that there were no circumstances under which the identity of a student with an IEP could be disclosed publicly.
Kempthorne seemed to reject this argument, saying “That may have been overly conservative legal advice. It seems to me that everybody in school knows who the special education kids are.”
“That’s a far cry from disclosing it to the world at large,” Long responded.
Kempthorne asserted that Jefferson could have called the Ethics Commission for guidance in the matter. Long answered that his client had sought advice from the director of the area special education collaborative (CASE), the Massachusetts Association of School Superintendents, and the lawyer for the Harvard School District; and Wormser had contacted Glenn Koocher of the Massachusetts Association of School Committees. Long concluded that Jefferson “made a practical decision on a very difficult problem … Hindsight is 20/20. In hindsight, he could have called the commission, and should such a situation arise again, he will. And so will every other superintendent in the state.”
Long seemed to suggest that school administrators could be deterred from making any difficult decisions. He recalled a question that Walter had asked in the initial hearing. After a witness had testified that nothing required Jefferson to recuse himself in this case, Walter had asked whether anything prevented Jefferson from doing so. “If we have gotten to the point where that is the question school administrators must ask themselves,” Long said, “we’ve gone a long way down the wrong road.”
Afterward, Jefferson said the case “clearly shows that there are complicated technical legal issues involved. I am awaiting the report. It is clear, though, that there was no quid pro quo, and that is the key issue.”
Ordinarily, the closing arguments would have been presented to a full panel of five commissioners. However, Judge Charles B. Swartwood III, chairman of the commission, recused himself after calling the session to order, leaving Kempthorne to preside. (She was also the commissioner who presided over the original two-day hearing last November.) The only other commissioner present in person was newly appointed Paula Mangan. To reach a quorum, the commission telephoned Judge Patrick J. King, and he listened to the arguments via speaker phone. Commissioner David L. Veator was unavailable.
Kempthorne announced that, for scheduling reasons, the Ethics Commission will not begin deliberating about the case until April. There is no time limit on their deliberations. Once the commission finally reaches a decision, it has 30 days to make that decision public.
