Public Enforcement Letter 00-3

In the Matter of Senator Edward J. Clancy

November 14, 2000

Senator Edward J. Clancy
c/o Haskell A. Kassler, Esq.
Casner & Edwards, LLP
One Federal Street
Boston, MA 02110

Dear Senator Clancy:

As you know, the State Ethics Commission has conducted a
preliminary inquiry concerning whether you violated the state
conflict of interest law, G.L. c. 268A, by, in July 1998, as state
senator, improperly meeting with the chairman and vice chairman of
the state Board of Registration of Chiropractors ("the Board") and
seeking to influence the outcome of an adjudicatory proceeding then
pending before the Board concerning one of your constituents, a
chiropractor. Based upon the preliminary inquiry, the Commission
voted on May 22, 2000, to find that there is reasonable cause to
believe that you violated G.L. c. 268A, s.23(b)(2).

The Commission has determined that the public interest would
be best served by sending you this public enforcement letter
bringing to your attention, and to the attention of your colleagues
and the public at large, the facts revealed by the preliminary
inquiry and explaining the application of the law to those facts.
The Commission expects that this letter will ensure your
understanding of and future compliance with the conflict of
interest law. The Commission and you have agreed that there will be
no formal action against you in this matter, and you have chosen
not to exercise your right to a hearing before the Commission. By
agreeing to this public letter as a final resolution of this
matter, you do not admit to the facts and law discussed below.


I. Facts


1. You are a state senator representing the First Essex
District. You have been a state senator since 1995 and were
previously a state representative for the Tenth Essex District for
two terms. You are also an attorney and have been a sole
practitioner in Lynn for over twenty years.

2. The Board is responsible for licensing chiropractors,
regulating their professional conduct, and taking disciplinary
action against those chiropractors who fail to meet the regulatory
standards. Board disciplinary action sometimes includes an
adjudicatory proceeding to determine whether to suspend or revoke
a chiropractor's license to practice. The Board meets periodically
in Boston.

3. In September 1997, the Board, by an Order to Show Cause,
initiated an adjudicatory proceeding against a Swampscott
chiropractor for alleged violations of Board regulations. In
October 1997, the chiropractor filed an Answer to the Order to Show
Cause denying its allegations. In May 1998, the Board issued an
Amended Order to Show Cause against the chiropractor. On June 3,
1998, the prosecution moved for summary decision against the
chiropractor. On June 12, 1998, the chiropractor filed his
opposition to the motion for summary decision and moved for oral
argument on the motion and opposition. The Board scheduled the
hearing on the motion and opposition for July 29, 1998.

4. In 1998, the Board's chairman was Edward J. Barowsky and
the Board's vice-chairman was Joseph Boyle. Chairman Barowsky and
Vice Chairman Boyle were to participate in any Board decision in
the adjudicatory proceeding concerning the chiropractor.

5. Your senatorial district includes Swampscott. In late May
or early June 1998, a Swampscott businessman, whom you have known
as a fellow Lynn YMCA member for many years, told you about the
chiropractor's situation. The businessman, who told you he was good
friends with the chiropractor's parents, asked you if there was
anything you could do. You agreed to look into the situation.
Subsequently, on June 2, 199-85 the businessman sent you a copy of
the Board's Order to Show Cause concerning the chiropractor,
together with a copy of the chiropractor's resume and a handwritten
note stating in relevant part,

I realize this is short notice; however the Chiropractic board
is having a prelimenary [sic] meeting on [sic] 2:30 6/3/98
Wednesday regarding this matter. [The chiropractor] is
scheduled for adjudicatory hearing before the board on Friday
June 5, at 9:00 a.m. ... [1] [The chiropractor's] attorney is
trying to resolve this matter prior to a hearing. Any effort
on your part (i.e. telephone call or letter to the board &
members involved) will deeply be appreciated by [the
chiropractor] & myself.

6. You testified that, within two days of your first learning
of the chiropractor's situation, he telephoned you at your Lynn law
office.[2] The chiropractor told you in detail about his problem
before the Board. In short, the chiropractor told you that he had
worked for another chiropractor who was under criminal
investigation for Medicare fraud or some other fraudulent activity
involving overbilling accounts, and that the chiropractor's
signature stamp had been used in this activity. As a result, the
chiropractor had been brought in front of the Board and was facing
possible suspension or revocation of his license. You spoke with
the chiropractor by telephone on more than one occasion and you, as
you put it, "came to the conclusion that [the chiropractor] was a
sincere upright kid... [who] had just started out and got himself
into a bad situation."[3]

7. After your initial telephone conversation with the
chiropractor, you asked one of your Senate office staffers to find
out what the Board "was all about." You also had one of your Senate
staff members look in the state agency directory and obtain the
names and addresses of the Board's members. In addition, on June
23, 1998, the chiropractor faxed you a list of the Board's eight
members' names and addresses.

8. You decided that you wanted to discuss the chiropractor's
case with Board Chairman Barowsky and Vice Chairman Boyle in order
to attempt to save the chiropractor's professional career by
convincing Boyle and Barowsky that the chiropractor deserved the
Board's leniency in the pending adjudicatory proceeding. At the 984
time, you did not know either Boyle or Barowsky. Because both
Barowsky and Boyle had addresses in the Springfield area, you
decided to ask state Senator Linda Melconian, whose senatorial
district includes that area, if she knew them and, if she did, to
ask her to introduce you to Barowsky and Boyle so that you would
not have to make "cold calls" to them.

9. On or about June 25, 1998, you spoke with Melconian at the
State House and, after confirming that she knew Boyle and Barowsky,
you told her you needed to talk with Boyle and Barowsky and wanted
to meet with them. You did not tell Melconian why you wanted to
speak with Boyle and Barowsky, except to say that a constituent
matter was involved.

10. Melconian offered to set up a meeting between you and
Barowsky and Boyle. She also offered her Senate office conference
room for the meeting. According to Melconian, it is her normal
practice to set up such meetings for her Senate colleagues.

11. In late June 1998, Barowsky and Boyle each received a
telephone call from either Melconian or an aide to Melconian
requesting that they meet with Melconian and you (referred to as
"Senator Clancy'). The subject matter of the meeting was neither
inquired about nor identified. Barowsky and Boyle testified that
they assumed the meeting would relate generally to chiropractors
and insurance issues. According to their testimony, had Boyle and
Barowsky known that the purpose of the meeting was to discuss an
adjudicatory proceeding pending before the Board, they would have
declined to meet with you. Boyle and Barowsky were each told that
the other had also been invited to the meeting. Both Boyle and
Barowsky agreed to the meeting, which was arranged for noon on July
9, 1998, to fall immediately after a scheduled Board meeting for
which they would be in Boston.

12. On July 9,1998, you met Boyle and Barowsky in the
reception area of Melconian's Senate office suite, and introduced
yourself as "Senator Clancy." Neither Boyle nor Barowsky were
familiar with you. You, Boyle and Barowsky engaged in "small talk"
for a few minutes while waiting for Melconian. There was no
discussion concerning the chiropractor at this time.

13. Melconian soon entered the reception area and asked you,
Boyle and Barowsky to come into the conference room of her office
suite. Melconian thanked Boyle and Barowsky for coming, introduced
you as a "good friend" of hers, and indicated that you wanted to
talk to them. Melconian then left the conference room and did not
return.

14. After Melconian's departure, Boyle asked, "What can we do
for you, Senator?" You then made what you called your "pitch," the
substance of which was the following:

You told Boyle and Barowsky that the chiropractor and his family
were constituents of yours and that you were anxious to have the
opportunity "to put a human face on" the chiropractor's problem
with the Board. You indicated how exemplary the chiropractor's
background was and stated that the chiropractor's parents had mad
a huge financial sacrifice to get him through school, an( that the
chiropractor still had a large amount of student loans to repay.
You stated that the chiropractor was naive and that his employer
was a "bad guy" who had clearly taken advantage of him. Finally,
you said that you hope( that the chiropractor's professional life
would not be ruined, and you asked Barowsky and Boyle to "show
mercy and not justice" and to "please not crucify" the
chiropractor.

15. According to Boyle and Barowsky, they cut you off before
you had finished speaking on behalf of the chiropractor and
expressed to you that they could not discuss the chiropractor's
matter with you because it was pending before the Board. The
meeting then terminated.

16. You testified that neither Boyle nor Barowsky cut off your
"pitch" and that you were able to say all that you had planned to
say.[4]

17. On July 29, 1998, the chiropractor's matter came before
the Board for oral argument on summary judgment. At the hearing,
Barowsky and Boyle read aloud written disclosures they had made to
the governor (their appointing authority) on July 28, 1998,
concerning their meeting with you. Thereupon, the chiropractor's
attorney sought their refusal. After consulting with legal counsel,
Boyle and Barowsky did not recuse themselves. The chiropractor's
matter was ultimately resolved by a consent agreement in 1999. The
Commission is not aware of any evidence that your "pitch" to Boyle
and Barowsky had any effect upon the outcome of the chiropractor's
case.
18. You cooperated fully with the Commission's investigation
of this matter.


II. Discussion


Legislators are often called upon by their constituents to
assist them in their dealings with state agencies. Service to
constituents to resolve difficulties in dealing with state agencies
is, in general, a legitimate and time-honored activity of
legislators. But not every service to a constituent is lawful. In
this matter, the Commission has found that there is reasonable
cause to believe that your above-described "constituent service"
for the chiropractor, your "pitch" to the Board on his behalf,
violated the conflict of interest law.

As a state senator, you are a state employee. As such, you are
subject to the conflict of interest law, G.L. c. 268A. Your
above-described actions on behalf of the chiropractor appear to
have violated s.23 of G.L. c. 268A, the "code of conduct" section
of the conflict of interest law.

Section 23(b)(2) prohibits a state employee, including a
legislator, from knowingly or with reason to know using or
attempting to use his official position to secure for himself or
others unwarranted privileges or exemptions of substantial value
which are not properly available to similarly situated
individuals.[5]

As set forth in detail above, you used your official position
to secure a private meeting with two of the future decision-makers
in the chiropractor's case in order to attempt to influence their
actions in the pending adjudicatory proceeding in a manner
favorable to the chiropractor. Thus, as a state senator, you
obtained a meeting with Boyle and Barowsky through your Senate
colleague Melconian. In addition, the meeting with Boyle and
Barowsky was set up with you as "Senator Clancy." Finally, you met
with Boyle and Barowsky and made your "pitch" to them for the
chiropractor as a state senator.

In meeting privately with Boyle and Barowsky and attempting to
influence the outcome of the adjudicatory proceeding, you went
beyond assistance that you could properly have provided to your
constituent; for example, testifying at the adjudicatory proceeding
as a character witness or providing the chiropractor with a written
character reference for submission to the Board as part of the
defense case. Instead, your private "pitch" to Boyle and Barowsky
on the chiropractor's behalf was an improper ex parte communication
concerning a pending adjudicatory proceeding. That is, while you
spoke for the chiropractor, the prosecuting counsel was neither
present nor invited to attend to advocate for the prosecution.

As an attorney, you are aware that it is fundamental to due
process that an adjudicatory proceeding be decided based upon
evidence that is offered and made part of the record of the
proceeding in the presence of the parties to the proceeding (or
their representatives), and that ex parte communications concerning
a pending adjudicatory proceeding are prohibited. Thus, the
Standard Adjudicatory Rules of Practice and Procedure, which the
Board (like many state agencies) follows, prohibit Board members
from receiving any ex parte communication concerning a Board
adjudicatory proceeding. 801 CMR s. 1.03(6)(a), formerly 801 CMR s.
1.03(10) (revised 12/25/98). Accordingly, Boyle and Barowsky would
not have met with you had they known your purpose was to make a
"pitch" in order to influence the outcome of the adjudicatory
proceeding. Nor would they have listened to your ex parte "pitch"
on the chiropractor's behalf had they known it was coming. Neither
could they nor any other Board member have properly met privately
with or listened privately to any other person wishing to make an

Page 985

ex parte "pitch" in order to influence the outcome of any
adjudicatory proceeding pending before the Board. Thus, your
"pitch" for the chiropractor, at an ex parte meeting with Boyle and
Barowsky which you obtained through the use of your position as a
state senator, was an unwarranted privilege which was not properly
available to similarly-situated persons.

Given that the chiropractor's professional license was at
stake in the adjudicatory proceeding before the Board, your effort
to influence the outcome of the proceeding was of substantial value
for the chiropractor. See In re Burke, 1985 SEC 248, 251 (access to
executives to make an insurance sales pitch was of substantial
value because it makes sales more likely). It is likely that, were
such meetings not prohibited, almost every adjudicatory proceeding
subject would seek an ex parte meeting with the decision-makers to
argue the subject's position on the merits of the case in the hopes
of influencing the outcome in the subject's favor. Thus, by making
your "pitch" for the chiropractor at an ex parte meeting with Boyle
and Barowsky, you secured for the chiropractor an unwarranted
privilege of substantial value.[6]

Accordingly, there is substantial evidence to warrant the
conclusion that you, knowingly or with reason to know, used your
position as a state senator to secure for the chiropractor an
unwarranted privilege of substantial value which was not properly
available to similarly-situated persons. Thus, there is reasonable
cause to believe that you violated s.23(b)(2).[7]

III. Disposition


Your attempt to influence the Board in the pending
adjudicatory proceeding concerning the chiropractor through an ex
parte
communication posed a substantial threat to the Board's
ability to fairly and impartially resolve that case, in short to do
justice in the case. Had your "pitch" succeeded, the adjudicatory
process would have been subverted. Rather than being decided on the
merits of the evidence presented by both prosecution and defense in
a public proceeding, the case would have been decided based upon
the persuasiveness of an ex parte plea of a high ranking public
official. This was only averted by the conscientiousness of
Barowsky and Boyle.

Therefore, the facts warrant a public resolution. The
Commission decided to resolve this case with a public enforcement
letter, however, rather than imposing a fine, because there may be
some good faith confusion as to where the line is drawn between
properly zealous advocacy on behalf of a constituent and improper
communications when it comes to administrative agency adjudicatory
proceedings. The Commission has not previously addressed how s.23
applies to a legislator's efforts to assist a constituent with a
state agency adjudicatory proceeding. Section 23's application to
such constituent services should now be clear.

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

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

[1] The June 1998 proceedings were later rescheduled.

[2] In your dealings with both the businessman and the
chiropractor you were acting in your capacity as a state senator,
and not as a private attorney. You were not compensated by either
the businessman or the chiropractor for your efforts to help the
chiropractor with the Board. You testified that you considered your
efforts on behalf of the chiropractor to be consistent with your
role as a legislator.

[3] You testified that, as of June 1998 you were familiar with
the chiropractor's family's name, but had never met the
chiropractor or his parents. You did not meet the chiropractor in
person until some time in late 1998.

[4] You testified that your version of the meeting is
supported by your daily planner, which has an entry for the meeting
marked with a check mark. According to you, the check mark means
that the meeting was routine and that had you been cut off or badly
received there would be no check mark but instead a verbal notation
such as "ouch".

[5] Although under some circumstances s.4 of G.L. c. 268A
permits legislators to appear in matters before state boards or
agencies, it does not permit them in appearing before such
agencies, to violate s.2-3(b)(2).

[6] This is true, even in the absence of any evidence that
your "pitch" in any way actually helped the chiropractor, because
the unwarranted privilege of making an ex parte argument on behalf
of the chiropractor was itself of substantial value regardless of
its ineffectiveness.

[7] It should be noted that even if circumstances had fully
prevented you from making your "pitch" on behalf of the
chiropractor at the meeting with Boyle and Barowsky, it would still
be concluded that there was reasonable cause to believe that you
violated s.23(b)(2). This is because s.23(b)(2) applies to attempts
to use one's official position to secure an unwarranted privilege
as well as to actual use. Thus, your use of your official position
to obtain the meeting with the Board meeting was sufficient, given
your intent to thereby attempt to influence the outcome of the
chiropractor's case, to place you in apparent violation of s.23
(b)(2).

Page 986

End of Decision