October 6, 2011 

 

DISPOSITION AGREEMENT

 

This Disposition Agreement is entered into between the State Ethics Commission (“Commission”) and Charles Birchall (“Birchall”) pursuant to Section 5 of the Commission’s Enforcement Procedures.  This Agreement constitutes a consented-to final order enforceable in Superior Court, pursuant to G.L. c. 268B, § 4(j).

On July 16, 2010, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Birchall.  On May 20, 2011, the Commission concluded its inquiry and found reasonable cause to believe that Birchall violated G.L. c. 268A.

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

 

Use of LPS Resources

 

Findings of Fact

 

  1. Birchall has been employed by the Lawrence Public Schools (“LPS”) as a Graphics Department clerk from 2002 to the present.
  2. As a Graphics Department clerk, Birchall’s duties include graphic design, high volume printing, and ordering Graphics Department goods and supplies.
  3. Algird Sunskis and Stephen Jarvis were the sole owners of Wellington House Publishing, Inc. (“Wellington Publishing”) from its incorporation in 2007 until its dissolution in 2009.
  4. In 2007, Wellington Publishing published The First Year Teacher:  Why You May Fail, a book written by Sunskis and Jarvis.  Sunskis and Jarvis asked Birchall to print copies of the book.
  5. In or about the spring of 2007, Birchall printed at least 100 copies of the book using LPS Graphics Department equipment and supplies.
  6.  Birchall performed at least 16 hours of the printing during LPS work hours without taking time off from his Graphic Department job.
  7. LPS paid Birchall approximately $300 for the 16 hours he spent performing printing for Sunskis and Jarvis, thus that work was worth at least $300.
  8. The value of the use of the LPS equipment and supplies was well over $50.
  9. In or about the spring of 2007, Sunskis and Jarvis paid Birchall at least $249, which Birchall kept, for this private printing work.

 

Conclusions of Law

 

    10. Section 23(b)(2) of G.L. c. 268A, prohibits a public employee from, knowingly or with reason to know, using or attempting to use his official position to 
          secure for himself or others an unwarranted privilege or exemption of substantial value not properly available to similarly situated individuals.[1]

    11. As an LPS Graphics Department clerk, Birchall was a municipal employee, as defined by G.L. c. 268A, § 1(g).

    12. The use of the Graphics Department time, equipment and supplies was a privilege.

    13. The privilege was unwarranted because Birchall used the LPS resources for a private purpose.

    14. The privilege was of substantial value because Birchall’s LPS time was worth $300, and use of the LPS equipment and supplies for the private printing 
          was worth at least $50 or more.[2]

    15. The unwarranted privilege was not otherwise available to similarly situated individuals.

    16. By, in his capacity as Graphics Department clerk, using LPS resources to print the books for Sunskis and Jarvis, Birchall used his official position to 
          secure this unwarranted privilege.

    17. Thus, by using his official position as Graphics Department clerk to perform private work for Wellington Publishing using LPS resources as described 
          above, Birchall knowingly or with reason to know used his official position to secure for himself an unwarranted privilege of substantial value not properly 
          available to similarly situated individuals in violation of § 23(b)(2).  

    18. In addition, Birchall’s receipt of the $249 payment from Wellington Publishing for this printing of the book was also a privilege.

    19. It was unwarranted because he obtained the payment by using LPS resources to print the book.

    20. By, in his capacity as Graphics Department clerk, using LPS resources to print the book for Sunskis and Jarvis, Birchall used his official position to 
          secure this unwarranted privilege.

    21. The $249 payment was of substantial value because it was worth more than $50.

    22. The $249 payment was not available to similarly situated individuals.

    23. Therefore, Birchall violated 23(b)(2) by accepting the $249 payment from Wellington Publishing for printing the books using LPS resources.


Folding Machine Kickback

 

Findings of Fact

 

    24. On or about September 8, 2008, Birchall, in his capacity as the Graphics Department clerk, generated a $4,893.12 LPS purchase order, which did 
          not include shipping costs, to Wellington Publishing for a folding machine.

    25. On or about October 20, 2008, Wellington Publishing issued an invoice in the amount of $4,944.62, which included an additional $51.50 for shipping, to 
          the LPS for a folding machine.

    26. On or about November 17, 2008, the City of Lawrence issued a check to Wellington Publishing for $4,944.62 for the folding machine.

    27. On or about November 27, 2008, Wellington Publishing paid Birchall $2,200, which he kept, for issuing the purchase order.

    28. The LPS did not receive a folding machine from either Wellington Publishing or Birchall.

 

Conclusions of Law

 

    29. Section 2(b) of G.L. c. 268A, in relevant part, prohibits a municipal employee from corruptly receiving anything of value for himself in return for 
          being influenced in the performance of any official act or act within his official responsibility.

    30. Part of Birchall’s duties as a Graphics Department clerk is to issue purchase orders for goods and supplies.

    31. The issuance of a purchase order was the performance of an official act or act within Birchall’s official responsibility.

    32. As noted above, Birchall received a $2,200 payment from Wellington Publishing for issuing the LPS purchase order.

    33. The $2,200 payment was an item of value.

    34. At the time that Birchall received the payment of $2,200 from Wellington Publishing, he did so in return for generating a fraudulent $4,893.12 
          purchase order for an LPS folding machine.

    35. The exchange was corrupt because it was a sham transaction.  Birchall generated a $4,893.12 purchase order to Wellington Publishing for a machine 
          he knew Wellington Publishing was not going to order or deliver.  Further, Birchall knew that when he received the invoice in the amount of $4,944.62, 
          which included $51.50 for shipping, from Wellington Publishing for the machine, Wellington Publishing had not delivered, and would not be delivering, 
          the machine.  Instead, Birchall had agreed with Wellington Publishing that he and Sunskis and Jarvis would split the proceeds of the $4,944.62 LPS 
          payment for a machine that was never delivered.

    36. Thus, by corruptly receiving money in return for the performance of the official act and/or act within his responsibility as Graphics Department clerk, 
          Birchall violated § 2(b).

 

Resolution

 

In view of the foregoing violations of G.L. c. 268A by Birchall, 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 and conditions agreed to by Birchall:

    1. that Birchall pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $6,000 as a civil penalty for violating G.L. c. 268A, §§ 2(b) and 23(b)(2);
    2. that Birchall pay to the City of Lawrence $2,449 as a civil forfeiture of the unjust enrichment that he received through these violations of G.L. c. 268A, §§ 2(b) and 23(b)(2); and 
    3. that Birchall waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

 

STATE ETHICS COMMISSION

by

 

   //signed//                         10/6/11
Karen L. Nober                  Date
Executive Director

 

 

      //signed//                                           
Charles Birchall, III              Date

 

 

I, Charles Birchall, have personally read the above Disposition Agreement.  I understand that it is a public document and that by signing it, I will have agreed to all of the terms and conditions therein, including payment of $6,000 to the Commonwealth of Massachusetts, with such payment to be delivered to the State Ethics Commission, and payment of $2,449 to the City of Lawrence.

 

      //signed//                                        
Charles Birchall, III                   Date



[1] G.L. c. 268A was amended by c. 28 of the Acts of 2009.  The language of § 23(b)(2) now appears in § 23(b)(2)(ii) of G.L. c. 268A, as amended.
[2] The Commission has established a $50.00 threshold to determine “substantial value,” relying on Commonwealth v. Famigletti, 4 Mass. App. 584 (1976).