Andover Sends Youth Foundation Report To State Ethics Commission

ANDOVER, MA — The town of Andover has turned over a report into payments made by the nonprofit Andover Youth Foundation to Andover Youth Services staff to the State Ethics Commission, Select Board Chair Chris Huntress confirmed Monday.

The report, commissioned by the town from the law firm Nixon Peabody LLC, found that former Andover Youth Services Director Bill Fahey oversaw over $100,000 in payments from the nonprofit foundation to himself and Youth Services staff. The report alleges that the payments, funded by the Hurston Family Foundation, violated state laws prohibiting public employees from receiving gifts for their official work.

The foundations and Fahey's attorney disputed that the payments were for work done as town employees, but town officials followed the report's recommendation to provide it to the state, the Select Board chair said.

"Pursuant to the recommendations included in the report, the town of Andover has turned the results of the investigation over to the state ethics commission for further review," Huntress said at the Select Board's Monday night meeting. "The town is also prepared to implement all recommendations made in the report, including updates to town policy and staff training, as appropriate."

Huntress otherwise limited his comments to praise for the Andover Youth Foundation's support for Andover's youth, including in building the Cormier Youth Center, and his hope that the town and the foundation can continue to work together. The other Select Board members and town officials present for the meeting did not comment on the report.

Andover Youth Foundation President Diane Costigliola spoke during the public comment period of the meeting, reiterating the foundation's statement included with the report.

"None of the payments at issue were in exchange for any public employee taking an official report or refraining from taking an official act," Costigliola said. The payments "were not compensation for work performed as part of their duties as employees."

Costigliola also disputed the report's statement that Fahey "solicited" the funds from the Hurston Family Foundation, saying that instead, the foundation had initiated the donation.

The full report, including the response from the Andover Youth Foundation, is embedded at the end of the article. The report draws on documents shared by the Youth Foundation and town records including Fahey's texts, but Fahey and other Youth Services employees declined to be interviewed.

"This investigation determined that AYS’s former director used his public position for personal gain by soliciting and receiving gifts of payments by and through the Andover Youth Foundation, Inc. (“AYF”), a nonprofit public charity," attorney Robert Fisher wrote.

Fahey, through his attorney Daniel Murphy, disputed that the payments were for official work, as opposed to work "above, beyond and outside their duties at Andover Youth Services."

"Neither Bill Fahey nor AYF did anything that was illegal or unethical," Murphy said. "The Town should be embarrassed by its obvious motive and efforts to further destroy the work and reputation of Bill Fahey."

Andover commissioned the investigation after the Eagle-Tribune reported in August on text messages sent by Fahey directing the payments. The investigation is the latest step in a saga that began almost a year ago when Fahey was fired for unspecified "conduct," sparking a public outcry, including the resignations of the division's full-time staff.

The alleged conduct was later revealed to include "problematic" behavior including closed-door meetings with program participants and downloading pornographic material containing a former employee and showing it to the employee's family

Fahey is suing the town and Town Manager Andrew Flanagan for breach of contract and defamation. In his statement on behalf of Fahey, attorney Murphy said they believe the report was "commissioned by the Town of Andover to target Bill Fahey in response to the lawsuit."

According to the report, beginning in 2016 Fahey directed payments totaling $103,000 to himself and five then-staff members, using funds donated by the Hurston Family Foundation, which has contributed over $270,000 to the Andover Youth Foundation since 2015.

Records included in the report include an exchange between Fahey and the Hurston Family Foundation requesting a donation for "merit-based compensation," with conditions that Fahey has discretion over the funds and that they would be returned if he ceased to be Youth Services director.

The "merit-based compensation" grew from $500 each to Fahey and his senior staff in 2016 to $1,5000 per quarter each in 2019.

"In total, Fahey directed $107,300 in merit pay from the Hurston Family Foundation funds to Town employees, $103,000 to his immediate staff and the balance to another Town employee," according to the report.

The report also includes records that appear to show Fahey planning to conceal the payments from other town officials, including in an email to the Andover Youth Foundation's president where he said he was “not interested in giving them information" about donations other than the foundation's $30,000 annual contribution for the maintenance of the Cormier Youth Center.

"Concealment of receipt of donations and payments to staff from Town officials constitute violations of obligations of candor and Town anti-fraud policies that prohibit "deception deliberately practiced to secure unlawful gain,'" Nixon Peabody attorney Robert Fisher wrote.

Fisher issued five recommendations to the town, including that the report be provided to the State Ethics Commission for evaluation and that the town adopt new policies on Memoranda of Understanding between the town and nonprofit boards.

In response to the report, the Youth Foundation, Fahey and Hurston Family Foundation President Alan Kenney all said that everything was done transparently by Andover Youth Services and that the "merit" payments were intended to recognize work done by the staff outside of town employment.

"The foundation made the so-called "merit" payments from restricted funds donated by a single donor, the Hurston Family Foundation, Inc., which has generously donated funds each year since 2016, and which directed that the funds be used, inter alia, to recognize the recipients volunteer community services and humanitarian efforts, including by Youth Services staff who spent countless hours outside of the hours of their Town employment, and doing work outside of their job descriptions, and all for the betterment of the Town and of Youth services," the Youth Foundation said in a statement. "The foundation never made a single payment with the intent of or for the purpose of influencing or inducing a public employee to take or to refrain from taking an official act, or to thank them for having taken or having refrained from taking an official act."

"We disagree with the findings and conclusions in the Report," Murphy said on Fahey's behalf. "The Report focuses on funds donated to the Andover Youth Foundation by the Hurston Family Foundation for the purpose of rewarding people who worked above, beyond, and outside of their duties at Andover Youth Services."

"Both of those statements are accurate," Kenney said. "They did not do anything improper."

Kenney no longer intends to make any contributions to the Andover Youth Foundation, he said.

"We have no intention of getting involved in a personal vendetta between the town and Bill Fahey," he said. "We have no confidence in anyone else working for the town currently, other than the people who resigned en masse from Youth Services."

Patch has requested comment from Town Manager Andrew Flanagan and will update this story when we hear back.

AYS - Report of Investigation - 1-12-22 by Chris Huffaker on Scribd

>