Public Enforcement Letter 00-01

In the Matter of Alan Alves

February 10, 2000

Alan Alves
c/o Patrick Matthews, Esquire
56 North Main St., Suite 303
Fall River, MA 02720
February 10, 2000

Dear Mr. Alves:

As you know, the State Ethics Commission ("the Commission")
has conducted a preliminary inquiry into allegations that you
violated the state conflict of interest law, General Laws c. 268A,
by purchasing a boat you previously recovered in your capacity as
a police officer. Based on the staff s inquiry (discussed below),
the Commission voted on January 19, 2000, that there is reasonable
cause to believe that you violated the state conflict of interest
law, G.L. c. 268A, s.23(b)(3).

For the reasons discussed below, the Commission does not
believe that further proceedings are warranted. Instead, the
Commission has determined that the public interest would be better
served by bringing to your attention, and to the public's
attention, the facts revealed by the preliminary inquiry and by
explaining the application of the law to the facts, with the
expectation that this advice will ensure your understanding of and
future compliance with the conflict of interest law. By agreeing to
this public letter as a final resolution of this matter, you do not
admit to the facts and law discussed below. The Commission and you
have agreed that there will be no formal action against you in this
matter and that you have chosen not to exercise your right to a
hearing before the Commission.


I. Facts


1. You are a Freetown police lieutenant and police prosecutor.

2. In 1995, Dennis Oliveira ("Oliveira") decided to sell his
24 foot Bayliner boat to a buyer ("Buyer")[1] for $6,000. Buyer
paid Oliveira $3,000 and agreed to pay the balance within 30 days.
Oliveira allowed Buyer to take the boat; Oliveira kept the
title.[2]

3. Oliveira tried a number of times to collect the outstanding
$3,000 but Buyer never paid Oliveira. Subsequently, Buyer took the
boat from the marina and disappeared. Oliveira went to the district
court to file a complaint about the boat. The court clerk directed
Oliveira to talk with you. [You were the police prosecutor so the
clerk knew that you could handle the complaint.] Oliveira
explained that the boat was worth about $12,000 but that he had
sold it to a Buyer for $6,000. You told Oliveira to come to the
police station and file a report with the police that the boat was
stolen. Oliveira came to the police station on January 18, 1996,
and filed a report.

4. When Oliveira described the boat, you remembered having
seen it at the Fall River Marina. The boat was no longer there, but
you were able to use the marina's records to track it to New
Bedford. On April 22, 1996, you found the boat in New Bedford and
notified the Freetown police. You tried to contact Oliveira to tell
him that the boat had been recovered but Oliveira was out of town.

5. You went to file an application for an arrest warrant for
Buyer with the court for larceny by false pretenses. You
discovered, however, that there already were unrelated outstanding
warrants against Buyer so you decided to pick Buyer up on the other
warrants and question him before filing a warrant application on
the boat. Simultaneously, however, Buyer was picked up for
unrelated matters and was at the courthouse holding cell.

6. On May 8, 1996, you questioned Buyer at the courthouse
holding cell about the boat. Buyer said it was all a
misunderstanding. Buyer asked for a chance to speak with Oliveira
to work the matter out. Buyer and Oliveira came to an agreement
where Buyer returned the boat to Oliveira.

7. According to you, after Buyer gave the boat back, Oliveira
indicated that he wanted to sell the boat. Oliveira asked if you
knew of anyone interested in purchasing the boat. Oliveira said he
received $3000 from Buyer and would sell the boat as long as he
got the other $3,000. When you found out you could get the boat for
just $3,000, you became interested. After inspecting the boat, you
contacted Oliveira and said you would buy the boat for $3,000.

8. Oliveira denied that you used your police officer position
or coerced him in any way to sell you the boat for $3,000.

9. Your police report on the incident dated June 13, 1996,
states:

... On 4/22/96 I drove by that location and observed the boat
in question on blocks just down the street. The MS numbers had
been changed to a bogus set. At this time I contacted the next
wrecker in line (Big Wheels) who had Baylink Boat Transport
move the boat to their property in Freetown where it was
stored.

I contacted Mr. Oliveira (the owner) and advised him of same.
The following day Buyer was picked up in Fall River for OUI
and was arraigned on his various other charges. At the
courthouse I mirandised Mr. Buyer and questioned him regarding
the boat. He explained to me it was a misunderstanding and if
I would give him

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the opportunity to straighten out the matter with Mr. Oliveira before
he was officially charged. A couple days later W. Oliveira informed
me that he wished not to pursue charges against Buyer, if possible,
and that the boat has now been sold [italics added]. No charges
against Buyer regarding the boat are being sought at this time.[3]

10. You admit you purchased the boat prior to submitting your
report.

11. You did not disclose to your appointing authority that you
purchased the boat prior to submitting your report.


II. Discussion


As a police lieutenant, you are a municipal employee subject
to the conflict of interest law, G.L. c. 268A.[4] You are subject
to c. 268A generally and, in particular, to s.23(b)(3). Section
23(b)(3) prohibits a municipal employee from knowingly, or with
reason to know, acting in a manner which would cause a reasonable
person, with knowledge of the relevant facts, to conclude that
anyone can improperly influence or unduly enjoy her favor in the
performance of official duties, or that she is likely to act or
fail to act as a result of kinship, rank, position or undue
influence. This subsection's purpose is to deal with appearances of
impropriety and, in particular, appearances that public officials
have given people preferential treatment. This subsection goes on
to provide that the appearance of impropriety can be avoided if the
public employee discloses in writing to his appointing authority
all of the relevant circumstances which would otherwise create the
appearance of conflict. The appointing authority must maintain that
written disclosure as a public record.

There is reasonable cause to believe that you violated
s.23(b)(3) by intermixing your public and private dealings
concerning the boat. By acting officially in a matter involving the
Oliveira/Buyer boat transaction/theft while negotiating a deal to
purchase and/or just having bought the boat from Oliveira, you
created an appearance of conflict. A reasonable person would
conclude that by entering into a business transaction with a
complainant concerning the very property which is the subject of an
unresolved (open) criminal complaint you could be improperly or
unduly influenced in the performance of your official duties or
that you were likely to act or fail to act officially because of
that undue influence.[5] Here, your taking or failing to take
official action on Oliveira's criminal complaint also had the
potential to influence Buyer regarding any action Buyer might want
to take against Oliveira.[6] Alternatively, you could have taken
steps which could adversely affect Oliveira.[7]

You acted officially in this matter on one occasion shortly
after you bought the boat. Thus, in your June 13, 1996 police
report you stated that you have decided not to pursue the larceny
charges where the boat has been recovered and the owner is
satisfied. You also stated, "The boat has now been sold."

The filing of this report was your official notification to
your superiors of your decision not to further pursue this matter
criminally. That was an important step in the process. To take that
step shortly after you had purchased the very property that was the
subject of the larceny complaint in question cannot help but create
a significant appearance problem. One has to be concerned that you
may have had a bias created by your own self interest in the
purchase, e.g., that if you pursued the matter criminally, Buyer
might defend by trying to prove he owned the boat; or that such
action might prompt Buyer to be more aggressive in asserting civil
claims he would have against Oliveira which, in turn, could affect
the price for which Oliveira would be willing to sell the boat.
Moreover, the appearance problem is exacerbated by your
misleading-by-omission statement, the "boat has now been sold." By
so acting, there is reasonable cause to believe that you would
cause a reasonable person to conclude that you were improperly
influenced in the performance of your official duties in violation
of s.23(b)(3).

The Commission wants to make it clear that an investigating
and/or prosecuting police officer should not become involved in any
significant private transaction or relationship with key parties in
a case he is investigating and/or prosecuting without first making
an appropriate written disclosure to his appointing authority.


III. Disposition


The Commission is authorized to resolve violations of G.L. c.
268A with civil penalties of up to $2,000 for each violation. The
Commission chose to resolve this case with a public enforcement
letter rather than imposing a fine because it believes the public
interest would best be served by doing so.

Based upon its review of this matter, the Commission has
determined that your receipt of this public enforcement letter
should be sufficient to ensure your understanding of and future
compliance with the conflict of interest law.

This matter is now closed.

------------------

[1] It is unnecessary to identify "Buyer" for the purposes of
this educational letter.

[2] Buyer claimed he spent an additional $2,700 on the boat
trying to make it sea worthy although Oliveira disputes Buyer's
claim.

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[3] The police department has the discretion to pursue larceny
charges even if the private party decides not to press charges.

[4] A copy of G.L. c. 268A is attached for your information.

[5] For example, you could have decided to press larceny
charges against Buyer even though he and Oliveira had reached a
private resolution. Moreover, where Buyer was already in jail and
unable to make bail on other charges, he was particularly
vulnerable to your authority as a police officer.

[6] Buyer could have contended that he was the owner of the
boat (although he had not completed paying for it), and,
consequently, could not have ' stolen his own boat. Consequently,
he might have sought to prevent Oliveira from selling the boat to
you or he may have brought a claim against Oliveira to recover the
$3,000 he had paid for the boat and/or the purported $2,700 costs
in repairs. Such claims, in turn, likely would have affected your
transaction with Oliveira.

[7] For example, you could have concluded that Buyer was the
rightful owner (albeit in arrears with regard to payment of the
full purchase price) and that police intervention to assist
Oliveira was not warranted.

Page 959

End of Decision