In the Matter of Carole Foley

April 23, 2001

Disposition Agreement


This Disposition Agreement is entered into between the State
Ethics Commission and Carole Foley pursuant to Section 5 of the
Commission's Enforcement Procedures. This Agreement constitutes a
consented-to final order enforceable in the Superior Court,
pursuant to G.L. c. 268B, s.40).

 

On April 22, 1999, the Commission initiated, pursuant to G.L.
c. 268B, s.4(a), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A by Foley. The Commission
has concluded the inquiry and, on June 21, 2000, found reasonable
cause to believe that Foley violated G.L. c. 268A.

 

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

 

Findings of Fact

1. Foley, a licensed social worker, has been a paid, appointed
Town of Dedham Council on Aging ("OA") outreach worker since 1995.

 

2. As a COA outreach worker, Foley provides assistance and
advice to elderly citizens, especially those who do not have family
or friends available to provide such assistance and advice.
Sometimes, upon request, Foley assists an elderly client to find a
more suitable living arrangement and sell his or her home.
Typically, Foley helps the client to find a real estate agent and
an attorney. In addition, when people in town approach Foley about
buying a home which is being sold by one of her elderly clients,
Foley usually refers the potential buyer to the seller or the real
estate agent.



3. In summer 1998, Marie Manning was a 60 year-old woman who
lived alone in a three-bedroom house in Dedham. Unemployed and
suffering from acute depression and cancer, Manning no longer was
able to take care of herself or her home.

 

4. On July 4, 1998, one of Manning's neighbors became
concerned after not having seen Manning in some time and noticing
that Manning' mail was piling up. The neighbor contacted the
police, who spoke with Manning later that day. Although Manning
declined any help, the police were concerned about her condition.

 

5. On Tuesday, July 7, 1998, a police officer returned to
Manning' home with Foley, who was acting in her capacity as COA
outreach worker. Upon observing Manning and the poor sanitary
conditions in which she was living, Foley persuaded Manning to
allow herself to be taken to Norwood Hospital for treatment.

 

6. On July 10, 1998, Foley accompanied a board of health
inspector on an inspection of Manning' house. By letter dated July
13, 1998, the inspector informed Manning that the house inspection
bad revealed a number of state sanitary code violations, including
serious structural deficiencies, exposed wiring, broken windows and
clutter throughout the house.

 

7. During the week of July 13, 1998, Foley contacted Manning's
brother Edward in New Jersey. Manning had not been in contact with
Edward for many years. Foley asked Edward for a letter authorizing
Foley to handle Manning's affairs in case Foley became medically
unable to do so. By letter dated July 17, 1998, Edward gave Foley
that authority. (Foley never had to use the letter, however.)

 

8. In mid-July, Foley visited Manning at the hospital,
bringing her clothes and mail. According to Foley, Manning told
Foley that she had only a short time to live and wanted to sell her
house. Because Manning could no longer live alone in her house,
Foley agreed to find a nursing home that would accept Manning and
to help Manning sell her house.

 

9. The hospital's records indicate that, at the time, although
clinically depressed, Manning was mentally oriented and understood
her medical situation.

 

10. Shortly thereafter, Foley contacted the Eastwood Care
Center, a long-term nursing home facility. Eastwood's director of
admissions interviewed Manning and determined that a long-term
placement at Eastwood was clinically appropriate. Medicaid would

 

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cover the nursing home costs for Manning.

 

11. On July 30, 1998, Norwood Hospital transferred Manning to
Eastwood.

 

12. On or about July 31, 1998, Foley visited Manning at
Eastwood and discussed selling her house. Manning stated that she
would be willing to sell the house for $7,000 plus any back taxes
and utilities that were due.

 

13. According to the Assessor's Office, for fiscal year 1999
Manning's three bedroom home situated on approximately one-quarter
acre was assessed at $121,000; the lot alone was valued at $79,000.

 

14. At the time, Foley's son, Russell, and daughter-in-law,
Debbie, lived in Dedham and were looking to buy a home.

 

15. Shortly after speaking with Manning about selling her
house, Foley had a telephone conversation with either Russell or
Debbie in which Foley related that she had a client at Eastwood who
was interested in selling her home. Foley explained that the house
was in poor condition and might be of interest to them.

 

16. Shortly thereafter, either Russell, Debbie or both of them
drove by the house and confirmed that it was in poor condition but
had potential.

 

17. On August 4,1998, Foley introduced Debbie to Manning at
Eastwood. Foley did not disclose to Manning that Debbie was her
daughter-in-law.

 

18. At about this time, Foley asked Manning's brother Edward
to speak with Manning and try to influence her to sell the house to
Russell and Debbie.

 

19. Sometime during the week of August 9,1998, Foley told
Dedham COA Director Joanne Mucciaccio that Manning had been placed
in a nursing home and that Russell and Debbie were interested in
buying her home. Mucciaccio told Foley that it was a "no-no" for
Foley's son and daughter-in-law to be so involved. Mucciaccio told
Foley to have an attorney and three realtors involved in the
transaction to make sure that nothing went wrong, and that Foley
herself should have no further involvement. Foley did not disclose
any sales price nor did she reveal that she had introduced Debbie
to Manning.

 

20. The COA has no written policy regarding how a social
worker is supposed to deal with a client who needs assistance in
selling property. Standard protocol, however, dictates that the
social worker seek the assistance of a realtor and an attorney to
advise the client. Indeed, Foley's own practice in dealing with
such situations had been to involve outside professionals.

 

21. In the case of Manning's house, however, Foley never
involved an attorney or real estate agent in the process, nor did
she take any steps to find other interested buyers for the
property.

 

22. On or about August 11, 1998, Foley's son and
daughter-in-law entered into a purchase and sale agreement with
Manning to buy the house for $7,000 (plus the assumption of unpaid
taxes and utility bills up to an additional $3,000).

 

23. In late August 1998, one of Manning's neighbors complained
to town officials about the sale of Manning's house to Foley's son
and daughter-in-law. At the town administrator's suggestion,
Eastwood arranged to have a legal services attorney appointed to
protect Manning's interests in the disposition of her property.

 

24. By letter dated September 4, 1998, Manning's attorney
wrote to Russell and Debbie's attorney stating, "The sale to the
Foleys is presently on hold pending further review of the sale
price for the property." Manning's attorney then contacted a
contractor, who offered $90,000 for the property. Russell and
Debbie declined to bid against that offer.

 

25. The contractor purchased the property on December 31,
1999, for $90,000.

 

26. Manning died on January 16, 1999.

 

Conclusions of Law

27. As a COA outreach worker, Foley is a municipal employee as
defined in G.L. c. 268A, s. 1. As such, Foley is subject to the
provisions of the conflict of interest law, G.L. c. 268A.

 

28. Section 23(b)(2) of G.L. c. 268A prohibits a municipal
employee from, knowingly or with reason to know, using or
attempting to use her official position to secure for herself or
others unwarranted privileges[1] or exemptions of substantial value
which are not properly available to similarly situated individuals.

 

29. Foley's introducing her daughter-in-law to Manning under
the above-described circumstances and her failure to bring in an
attorney and/or realtor involved a use of her official position
because in each situation she was acting as a COA outreach worker
to bring about the result. Thus, Foley was able to make the
introduction because she was Manning's outreach worker. And, in
deciding not to involve other professionals, Foley was obviously
exercising her authority as an outreach worker.

 

30. Foley's introducing her daughter-in-law to Manning and
failing to involve other professionals gave her son and
daughter-in-law special advantages. First,

 

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the introduction carried with it Foley's implied endorsement of Russell and Debbie as Manning's COA outreach worker. Presumably, Manning would have a
certain degree of trust in her outreach worker's judgment as to who
would be an appropriate buyer. Second, by failing to involve other
professionals (such as contacting realtors), Foley gave her son and
daughter-in-law the special advantage of not having to compete
against any other buyers. Similarly, by failing to retain a real
estate agent or an attorney for Manning, Foley gave her son and
daughter-in-law the special advantage of being able to respond to
an extraordinarily low price ($7,000 plus outstanding bills) that
was not, in effect being scrutinized by independent professionals.
These special advantages were privileges within the meaning of
s.23(b)(2).


 

31. The privileges were of substantial value because the
endorsement, the lack of competition from other buyers and the
absence of outside professional scrutiny made it more likely
Foley's son and daughter-in-law would be able to buy the property
at Manning's bargain asking price.[2]

 

32. Foley's implied endorsement of her son and daughter-in-law
was unwarranted because Foley should not having been using her
official position to promote her own family's interests. Foley's
failure to retain outside professionals, an attorney and a real
estate broker, was unwarranted because standard practice would
dictate that such professionals be involved, especially for a
client in such an inherently exploitable situation.

 

33. These unwarranted privileges were not properly available
to individuals situated similarly to Foley's son and
daughter-in-law. In other words, there was no statute, ordinance,
practice or protocol that would make it appropriate for a social
worker's family members to, in effect, have an exclusive purchasing
opportunity with the social worker's client.[3]

 

34. Accordingly, by making this introduction and failing to
involve outside professionals who would protect Manning's
interests, Foley knowingly or with reason to know used her official
position to secure unwarranted privileges of substantial value for
her son and daughter-in-law. In so doing, Foley violated G.L. c.
268A, s.23(b)(2).[4]

 

Resolution

In view of the foregoing violations of GL. c. 268A by Foley,
the Commission has determined that the public interest would be
served by the disposition of the matter without further enforcement
proceedings, on the basis of the following terms and conditions
agreed upon by Foley:

 

(1) that Foley pay to the Commission the sum of $2,000 as a
civil penalty for violating GL. c. 268A, s.23(b)(2); and

 

(2) that Foley waive all rights to contest the findings of
fact, conclusions of law and terms and conditions contained in
this Agreement in this or any other related administrative or
Judicial proceeding to which the Commission is or may be a
party.



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[1] As defined in The American Heritage Dictionary (second
college ed.), a privilege is "A special advantage, immunity,
permission, right or benefit granted to an individual, class or
caste."

[2] The Commission construes substantial value to mean or
include any item or service with a value of $50 or more. Liam v.
State Ethics Commission, 431 Mass. 1002, 1003 (2000).

[3] Public employees are prohibited by the conflict of
interest law from taking private advantage of inherently
exploitable relationships that they have with those persons they
supervise or regulate in their official positions. See In re
Corson, 1998 SEC 912; see also In re Shay, 1992 SEC 591.

[4] This same conduct raises issues under GL.c. 268A, s.19.
Section 19 prohibits a municipal employee from participating as
such in a particular matter in which she knows that an immediate
family member, among others, has a financial interest. In settling
this case, however, the Commission has chosen to focus exclusively
on the extent to which the conduct involved unwarranted privileges.