In the Matter of Cheryl Jacques
DECISION AND ORDER
I. INTRODUCTION AND ALLEGATIONS
Cheryl Jacques is an administrative law judge for the Department of Industrial Accidents. Petitioner, the Enforcement Division of the State Ethics Commission, contends that the evidence in this case proves that Jacques contacted a dental office in connection with a dispute over the bill for dental work performed for her brother-in-law, Preston Green, stated she was a judge and demanded that the dental office write off a debt of more than $1,000 that Green owed for treatment already rendered. Petitioner alleges that Jacques violated G.L. c. 268A, § 23(b)(2)(ii) because she attempted to use her official position to secure for her brother-in-law unwarranted privileges or exemptions of substantial value – worth $50 or more -- which were not properly available to similarly situated individuals.
This case centers on three phone calls on November 12, 2010 between Jacques and personnel at Tremont Dental: the front desk receptionist, Andrew Halchak, the office manager, Jin Choi, and the owner, Dr. Og Lim. In her defense, Jacques argues that she did not attempt to use her official position in connection with the dispute over the bill, contending that she only mentioned that she was a judge when, late in the last phone call, she was asked about it directly by Dr. Lim. She also argues that she did not attempt to secure an unwarranted privilege for Green, contending that Halchak had told her brother and Green that Tremont Dental was a preferred provider organization (“PPO”) for Green’s insurance company, and that she only asked Tremont Dental to charge Green at PPO rates, per the insurance company’s policy.
II. THE EVIDENCE
With regard to almost every fact pertinent to a resolution of this case, testimony by Cheryl Jacques, her brother, Thomas, and Preston Green directly contradicted testimony by Halchak, Choi, and Dr. Lim.
Representations about insurance coverage
Thomas W. Jacques (“Thomas”) is Cheryl Jacques’s brother. Thomas’s spouse is Preston Green. In the summer of 2010, Thomas made an appointment for Green at Tremont Dental. Green is a state employee. Green testified that his insurance was Delta Dental PPO.
Jin Choi was the office manager at Tremont Dental. At the hearing, she explained that Tremont Dental was in network with the Delta Dental Premier plan. If a patient was out of network, Tremont Dental could take the patient, but it was the patient’s decision to see Tremont Dental. Choi explained that out-of-network patients have to pay more out of their pocket than they would if they went to an in-network provider or the insurance company will not pay for some procedures at all.
“PPO” means preferred provider organization. Choi explained that she trained the front desk receptionists to tell potential customers with Delta Dental PPO plan coverage that Tremont Dental was not in network with their insurance. Tremont Dental would ask the patient to give information about his insurance, and then Tremont Dental would call or go online to the insurance company to find out about costs.
Dr. Lim testified that insurance is a relationship between employees or policyholders and insurance companies. She said that her office does not have a responsibility to tell a patient that he can get cheaper service at another office. She acknowledged that she had said at her deposition that it was up to the patient to find out whether he or she could pay less by going somewhere else. At her deposition, she also had said, “If I can get a discount price at this discount store, that department store, that's up to me to. The department store is not going to tell me if you go to the other department store, you get better price.” Dr. Lim stated that there is no way for Tremont Dental to know what price patients would get at another office.
Choi handled complaints from customers. Dr. Lim testified that if there were complaints about insurance coverage or insurance claims, Choi handled them, and if there were any further problems, then they would come to Dr. Lim.
Thomas Jacques testified about making the appointment at Tremont Dental for Green. Previously, Thomas had gone to a dentist in Wellesley, and first he was told that the office was a PPO provider for him, and later he was told it was not, so he left the appointment. When he made an appointment for Green, he knew that he had to go to a dentist that was an in-network PPO for Green’s insurance in order to get the PPO rates.
Thomas testified that he spoke to Andrew Halchak, the front desk receptionist at Tremont Dental, and asked whether Tremont Dental was a preferred provider for Delta Dental. According to Thomas, Halchak said yes, and Thomas made the appointment. Thomas did not verify with Delta Dental that Tremont Dental was a preferred provider.
Halchak did not testify at the hearing. The evidence, however, includes three reports of interviews with Halchak on March 15, 2011, June 15, 2011, and February 9, 2012. Exhibits also include his sworn interview taken May 15, 2011, his deposition taken September 7, 2012, and an affidavit he signed on November 1, 2012.
Halchak testified that he did not think he had ever spoken to Tom Jacques, and that he is not sure who called to arrange Green’s appointment.
At Green’s first appointment, Green asked Halchak to confirm that Tremont Dental accepted his insurance, Delta Dental PPO. Green gave the following testimony:
Q: And what did you ask him?
A: I told him who I was. I had an appointment but I want to confirm again you do accept my insurance.
Q: Did you ask him to accept your insurance or are you a PPO?
A: Well, both. Do you accept my insurance? It’s Delta Dental PPO.
Halchak testified that Tremont Dental was in-network with the Premier Plan from Delta Dental and if someone has Delta Dental, and it is not Premier, then he would tell them it is up to them to find out if they will be able to get covered at Tremont Dental.
Green’s first appointment was on August 21, 2010. Halchak began working for Tremont Dental the first or second week of August, 2010.
At his sworn interview on May 25, 2011, Halchak testified that he thought he had a conversation with Green once when he first started there. He acknowledged that Green had the PPO Plan, which was out of network. When Halchak first started at Tremont Dental, he would not have told Green if he was in-network or out-of-network because he would not have known at the time. “I hadn’t actually learned that much about it, so if someone asked if we accepted Delta Dental, all I could have said was either yes or no.”
At his deposition on September 7, 2012, Halchak testified that he knew very little about insurance in August, 2010. He testified that in August, before he was fully trained, he would have told patients that they accept any insurance that is willing to pay except MassHealth. He also testified that he had no memory of speaking to Green.
Through all of his testimony, Halchak was not asked whether he told Green that Tremont Dental was a PPO, and he did not state at any time whether he told Green that Tremont Dental was a PPO.
Discussions between Choi and Green
Jin Choi, the office manager, testified that she met with Green twice to talk about the cost of his treatment. She remembered that he had a root canal and post and core and crowns. When Green called for an appointment, they got his insurance information and Tremont Dental was out of network for his insurance. Choi testified that she personally discussed with Green that Tremont Dental was out of network. She told him, “[t]hat means insurance not going to pay and that means you’re going to pay more. So if you are going to see other office who is in network with your insurance, then you will get covered more.”
Choi testified that she asked Halchak to call Green before his first visit, and that she also called Green. She testified that she talked to Green the first time he came in. She said she wrote a note in Green’s chart because she wanted other people to explain again that he’s not in network. Before he signed his consent form and chart, she explained this to him and showed him his plan copy from the insurance company.
For any type of procedure costing more than $300, Tremont Dental asks the insurance company for a pre-estimate, and the insurance company sends the pre-estimate to Tremont Dental and to the patient. Green received a pre-estimate dated September 28, 2010. It listed $1,400 for a porcelain crown and $822.25 as the amount the patient has to pay. The estimated insurance payment was $312.31. The procedure was done on October 8, 2010.
Choi explained that in Green’s case, they sent a pre-estimate even for treatments that cost less than $300 because they wanted to keep the record as proof that they informed the patient that he would not be covered by his insurance. Choi testified that when she showed Green the pre-estimate, he said it was too much for him. They gave him a payment plan. He made payments in accordance with the plan. He was supposed to pay 50% on the first visit and $200 or $300 every month.
Green, however, testified that he never spoke to the office manager at Delta Dental. He said the name, Jin Choi, did not mean anything to him. In addition, Green testified that Tremont Dental did not put him on a payment plan. Green received bills for appointments on August 21, September 18, October 8 and November 5, 2010. He made three payments, believing they were the PPO rates.
Jacques contends that Choi did not speak to Green at his first appointment because August 21 was a Saturday and Choi was not at Tremont Dental on Saturdays. Also, Choi described Green as white, blonde, and five foot six. Green, however, has dark brown hair and is five foot ten.
In her brief, Jacques notes that Choi failed to mention the conversations she had with Green at her deposition, and mentioned them for the first time at the hearing. Jacques contends that Choi made up the conversations to justify Tremont Dental’s failure to honor the PPO rates after Halchak told Thomas Jacques and Green that Tremont Dental was a PPO.
Cheryl Jacques’ initial involvement in the dispute about the dental bill
Cheryl Jacques previously served as an Assistant Attorney General and a State Senator. There is no dispute that, in her current position as an administrative law judge for the Department of Industrial Accidents, she is a state employee.
Both Thomas and Cheryl Jacques testified that Jacques handled financial matters for both Thomas and Preston Green. Thomas testified that he and Green had dinner with Jacques and complained about the amount of Green’s dental bills. Like Green, Jacques had the state plan and thought the bills should not be so high. Thomas brought the bills to Jacques. Green left her his card, which said he had Delta Dental PPO insurance.
Jacques called Delta Dental and learned that Tremont Dental was not a preferred provider organization. She testified that the representative at Delta Dental said that if Tremont Dental was saying they are a PPO and they are not, and they are billing Green the higher rates, she should talk to the dentist and the dentist should correct it and honor the PPO rates. Jacques Googled the Delta Dental PPO rates and gave them to Thomas and Green.
Thomas testified that he called Tremont Dental and spoke first with Halchak. He said he was Preston Green. Halchak, however, testified that he never spoke with Green and does not recall speaking with anyone calling on Green’s behalf or about Green’s insurance other than Cheryl Jacques.
Thomas testified that he spoke the next day with Dr. Lim. Thomas testified that he explained to Dr. Lim that they were told Tremont Dental was a preferred provider, and he should have gotten PPO rates. Dr. Lim said it was not the office’s responsibility, but rather the patient’s responsibility.
Thomas testified that he was angry and tried to “play hard ball” with Dr. Lim. He told Dr. Lim that his sister was involved with consumer protection fraud when she was a state senator, and was an assistant attorney general and a judge, and his other sister was a former assistant D.A. At the hearing, Thomas acknowledged that he stated at his deposition and in an affidavit dated January 26, 2012 that, before Cheryl Jacques spoke with Dr. Lim, Dr. Lim knew Jacques was a judge because he had told her.
Dr. Lim, however, testified that no one had called to discuss Preston Green’s bill before Cheryl Jacques did, and that she did not get a call from Thomas. Dr. Lim testified that, prior to her conversation with Cheryl Jacques, no one had ever told her that Green’s sister-in-law was a judge.
Thomas testified that he subsequently told Jacques that he had gotten nowhere, but did not tell her he had mentioned her positions to Dr. Lim. He did not mention this to Jacques until after an ethics investigation regarding her began.
Cheryl Jacques’ calls with Tremont Dental
The evidence shows that Jacques called Tremont Dental on November 12, 2010 and spoke first with Halchak, then with Jin Choi, and finally with Dr. Lim about Preston Green’s outstanding bill for dental services.
Call with Halchak
Jacques testified that she called Tremont Dental from work on her cell phone. She introduced herself to Halchak as Cheryl Jacques, and told him she was calling on behalf of her brother, Preston Green. She told him she was a lawyer, but was calling as a sister about Green’s bill. According to Jacques, Halchak admitted that he “really messed that up,” and Jacques acknowledged that it was a misunderstanding. She told Halchak the solution was to charge Green “what he should have been charged had you guys in fact been the PPO you said you were.” Halchak said he had no authority to do that.
Jacques testified that she never mentioned her job to Halchak.
Halchak gave a series of statements about the call from Jacques. They were not consistent about whether Jacques told him she was a judge.
The interview report dated March 15, 2011, states that he “indicated that she mentioned her profession when she identified herself.” She told him “she was a judge, that she was representing Green and that she was Green’s sister.”
In the sworn interview on May 25, 2011, Halchak stated, “she said she was his sister and she was a judge in Massachusetts…” He stated, “she said she would call back again, that she was a judge and she was going to call back again if we didn’t call back…” He thought “she was trying to get me to do things immediately, rather than ask someone else.” He said, “it’s not like she said, you know, ‘This will happen if this doesn’t get done.’ She was just identifying herself I think to let me know that she meant business.”
In the interview dated February 9, 2012, however, Halchak stated that he may have first learned that Jacques was a judge when he spoke with her over the phone, or it may be that someone at Tremont Dental told him after the fact. He said he thinks Jacques told him she was a judge when she called. The interview states, “He also stated that someone in the Tremont Dental Office (he’s not sure who) told him in passing that she was a judge in Massachusetts.” He stated that he did not learn that Jacques was a judge before she called him. “He said no one knew she existed before her call; no one had heard of her prior to him speaking with her.”
At his deposition on September 12, 2012, he was asked whether Jacques told him she was a judge during their conversation, and he testified, “I don’t recall when I found that out.”
In the affidavit that he signed on November 1, 2012, Halchak stated that he was still working for Tremont Dental on May 25, 2011 when he gave his sworn interview. He wrote, “When I gave the May 25, 2011 statement, the events of fall 2010 were fresh in my mind and I had a clear recollection of the situation regarding Preston Green’s bill, and the phone conversation I had with Cheryl Jacques about Mr. Green’s bill.”
Halchak testified that Jacques said Tremont Dental had billed Green incorrectly, and that it could not charge him this amount, and that she “told us we needed to write it off.” She wanted him to “just write it off without any questions asked obviously,” and “just wanted the charge to be completely forgiven.” She wanted Tremont Dental to “get rid of” Green’s debt “completely,” “just write off any – whatever his balance was on his account – to get rid of it.” She wanted to erase his outstanding debt as of the time that she was calling. “She just wanted it erased from his – from his account so he wouldn’t have to pay anything else.”
He said “she didn’t say a ‘because’.” She told Halchak she had called Delta Dental, and they had told her Tremont Dental had made a mistake in billing and couldn’t charge Green that much. He and Choi called Delta Dental right afterwards, and they did not have a record of Jacques calling them.
Halchak said Jacques did not say anything about Tremont Dental’s provider status, and that he did not recall any discussion about “the PPO concept.”
Halchak is not on record anywhere as having told Cheryl Jacques that he mistakenly told Green that Tremont Dental was a PPO.
Call with Choi
Halchak transferred Jacques’s call to Jin Choi. Jacques testified that she said again she was a lawyer, but was calling as Green’s sister. Jacques testified that she told Choi that there was a misunderstanding and that Halchak misinformed her brother about Tremont Dental’s provider status. According to Jacques, Choi said she did the books and did not know about insurance, and Jacques would have to talk to Dr. Lim.
Jacques testified that she never mentioned her job to Choi.
Choi testified that Jacques said she was Green’s sister, asked her to look at Green’s bills, and said she thought they were hurting patients. Choi said Jacques started the conversation calmly, then started yelling. Choi was “about to explain, but [Jacques] didn’t give me a chance to explain or talk.” Choi testified that she received complaints similar to the one from Jacques. Usually, they let her talk and they could come to an agreement or they understand what is going on, but Jacques did not let her talk.
Choi testified that Jacques “mentioned attorney general or a judge.” Choi heard each of these positions once. Jacques said “she does this kind of claims every day so she knows how this thing works.” When Choi heard attorney general or judge, she was “[k]ind of feeling threatened even though we are not doing anything wrong about the procedure but I felt the power from her because she could do something to us. So she's going to, you know, let our business down.” Jacques told Choi she had called the manager at Delta Dental, and that “Delta Dental is really mad about this matter” and if what Tremont Dental did was true, Delta Dental said they would drop Tremont Dental as a provider.
Choi testified that Jacques wanted her to totally write off the patient’s payment. She testified that she put Jacques on hold, spoke with Dr. Lim, and then offered Jacques a 50% discount. Jacques said that if Green went to his in-network provider, he would not pay anything. Choi explained that even if he went to his in-network provider, it would not have been 100% covered by insurance.
Jacques asked to speak with Dr. Lim, who was not available. Dr. Lim subsequently called Jacques back.
Call with Dr. Lim
Dr. Lim testified that she usually does not work on Friday, but she was in the office to do flower arranging. She explained, “Jin came and she was very, very upset saying a judge called and she's very angry about billing and she wants to talk to you.” She confirmed that she testified at her deposition, “They were worried that they may get in trouble by the judge and they would get in trouble because there was a judge who called. I heard this judge probably about ten times myself.” At the hearing, she clarified that she heard this ten times from Choi and maybe Halchak, too, not from Jacques.
Dr. Lim called Jacques back, and Jacques introduced herself as a judge. Lim said, “I'm Dr. Lim and she said, I'm Judge Cheryl Jacques and she said she is the sister of one of the patients in the office.” Lim testified, “She was very threatening, intimidating and even just hearing, you know, a judge, I was already pretty much intimidated and she says she's very upset so I said, what can I do? What do you want me to do?” Lim testified that Jacques said she was a judge only once when she was introducing herself, “but I think that’s enough. Would you forget that? I don't forget that.”
Dr. Lim testified that Jacques said her brother had been treated in her office and if he had gone to another dentist’s office, the bill would have been much lower, and her office did not tell him that it would be a lot more expensive, and they tricked him. Dr. Lim testified that Jacques demanded that she “write off the entire balance.”
Dr. Lim thought that was wrong, but maybe her office had not told Green how much the treatment would be. She said she needed to speak with the treating doctor. She said there may have been an honest mistake, but no tricking. Jacques had told her that Green was handicapped and in a financially difficult situation, and Dr. Lim felt bad. She offered a 50% discount, somewhere in the range of $500, and regretted it afterward. Dr. Lim said that she was “scared” and “just didn’t want to have a problem with the judge so I offer a very big discount.” Dr. Lim testified that Jacques did not accept the discount, and then she threatened to revoke her provider status with Delta Dental and file criminal charges for fraud with the Attorney General.
Jacques testified that she introduced herself to Dr. Lim as a lawyer and as Green’s sister. She testified that in twelve years in the Senate, she was uncomfortable with being called Senator Jacques. She stated that she typically introduces herself as Cheryl, and that her staff and interns call her Cheryl. She also explained in her defense, “If I wanted to influence somebody, I wouldn’t use the title administrative judge. Ninety percent of the world doesn’t even know what that is… I would have used Senator Jacques because that would have opened a lot more avenues than Judge Jacques…. It sounds like a cartoon character, and I don’t even use that.”
Jacques testified that she told Dr. Lim that Halchak had made “an innocent enough mistake,” but that her brother could not afford to pay for it. According to Jacques, Dr. Lim immediately said it was not their responsibility, and even if Halchak made a mistake, it was the patient’s responsibility. Jacques argued that telling a patient he needs to check with his insurance company is different from affirmatively answering a patient’s inquiry confirming they were a PPO when they were not. Dr. Lim’s response was that he got his pre-bill and chose to pay it, but Jacques said Green thought it was PPO rates. Jacques told Lim that affirmatively misrepresenting that they were a PPO was fraud. She said she would advise her brother to explore all avenues: the Consumer Protection Division of the Attorney General’s Office, the Better Business Bureau, a case under c. 93A, investigation by the Division of Licensure and small claims. Jacques testified that she was upset, but her tone was “lawyerlike.” At some point, Dr. Lim offered a discount of $100 or $200, and Jacques refused to accept it because the office should be honoring the PPO rates.
Both Dr. Lim and Jacques testified that toward the end of the conversation, Jacques made reference to her position. Dr. Lim said that Jacques was being very aggressive and said, “Now I'm going to report you. Give me your full name and your address.” Dr. Lim refused and said it was public information. Jacques asked whether Dr. Lim was “afraid of something.” Lim said Jacques was “really bullying me.” Dr. Lim wanted to get out of the conversation and said she had patients waiting, and then Jacques said, “well, I'm busy, too. I'm in-between trials or cases.” Dr. Lim testified that the conversation ended when Jacques said she was going to report Dr. Lim to the Attorney General’s Office and Dr. Lim said, go ahead.
Jacques contends that she had to say she was a judge because of what Lim said to her. Jacques testified that “at some point [Lim] said something like, I don’t have time for this insurance. I’m a doctor. I have patients waiting and I said, exasperatedly, I said, you know, Doctor, with all due respect I don’t want to be doing this either. I’ve got a courtroom full of people waiting for me.” Lim then asked, “are you a judge?” Jacques said, “I am.” After saying it, she thought “[t]hat shouldn’t have come out.”
Jacques testified that she subsequently told an Ethics Commission investigator that she “inadvertently” identified herself as a judge. “I said, I had a courtroom full of people, and then she asked me if I was a judge and then I was trapped. I had to say yes. I wasn’t going to lie…”
Jacques acknowledged that she did not have to respond to Dr. Lim by saying she was a judge, but testified it was never her intent to introduce her position into the conversation. After saying it, she thought “[t]hat shouldn’t have come out.” She called the reference to her position as “my slip” and testified, “That was probably inappropriate. I probably should have discontinued the call immediately.”
Jacques testified that the conversation about the bill resumed briefly before she and Dr. Lim hung up. She said that she should have gotten off the phone after identifying herself as a judge, and did so “[w]ithin about a minute or two.” Jacques testified, however, that before the call ended, she repeated arguments from earlier in the conversation. At the hearing, she said that Dr. Lim said it’s the patient’s responsibility again and Jacques again distinguished between advising a patient to check his insurance and affirmatively misrepresenting. She also acknowledged previous deposition testimony in which she asked for a reduction of $800 and rejected an offer of $100 as inadequate.
Aftermath of Cheryl Jacques’ calls
Having spoken with Jacques, Dr. Lim spoke with Halchak and Green’s treating doctor. Dr. Lim testified that she asked Halchak about what he had said to Green. Halchak told her that when Green came in and asked do you accept Delta Dental, he said yes. Halchak told her this is what he “probably said.”
Green’s treating doctor confirmed to Dr. Lim that Green had received a pre-estimate from the insurance company and had agreed to it. Dr. Lim looked at the estimate authorization from the insurance company. Afterwards, Dr. Lim concluded that they had done nothing wrong and she regretted offering the 50% discount.
Dr. Lim also called Green and asked him for authorization to speak with Jacques about his dental records.
Cheryl called Thomas and told him that she got nowhere with Dr. Lim. She and Thomas both testified that she advised him about his legal options.
On November 13, 2010, Thomas and Green wrote a letter from Green and faxed it to Tremont Dental. The letter authorized Tremont Dental to speak with “Attorney Cheryl Jacques,” and asked for a reply to be sent to Cheryl Jacques’s e-mail address. It stated that on two occasions, Halchak had told Green that Tremont Dental was a PPO, and included a list of PPO rates which, Thomas testified, he got from Delta Dental. The cost at PPO rates would have been $1,310.00. Green already had paid $1,149.00. The difference was $161.00. The letter made an offer to pay $161.00 to close the bill. Finally, the letter threatened to sue for a refund pursuant to G.L. c. 176D and G.L. c. 93A, to bring a formal complaint with Delta Dental, the Attorney General’s Consumer Protection Division and the Division of Professional Licensure.
At the hearing and in notes she had made before her deposition, Dr. Lim stated that this letter demanded a “write-off,” but she acknowledged that the letter actually asked for charges to be made at PPO rates. She confirmed, however, that on the phone, Jacques had demanded a write-off of the entire balance, which was different than what Green was asking for in the letter.
Dr. Lim testified that she was pretty angry when she got this letter, and she “started looking into this judge” and “went online and got all sorts of information about if a judge could be practicing law.” She wrote back to Green on November 17.
With respect to your attorney (Cheryl Jacques), we received a telephone call from her in which she treated the staff in a highly abusive and intimidating manner. Ms. Jacques asserted that she is a seated judge for the Commonwealth and would be providing you with legal representation. She also stated that she would personally see to it that our provider status would be revoked and we would face charges if we do not write off your debt. Our lawyer has advised us that calling on behalf of friends or family members to resolve personal matters using her authority as a judge is violating the code of judicial conduct.
In the letter, Dr. Lim also wrote that the full amount of $1,147.19 was due. She also wrote:
Your statement that we intentionally claimed to have a PPO status in order to entice you into treatment is also false. The statement we made to you was that we take Delta Dental insurance. We are a participating Delta Dental provider. After contacting Delta Dental regarding your case they reiterated that the terms of your contract specify that selection of a provider is at your discretion and is solely your responsibility.
Subsequently, Thomas hired a lawyer, Kelly Neumann. Dr. Lim sent her a letter demanding payment. Attorney Neumann resolved the matter. She did not get Green the PPO rates, but did get a discount. At the time, Green owed about $1,100. Dr. Lim recalls a discount of $100. Thomas recalls that the discount was about $200. Green recalls that they paid about $600, or about half of the bill.
III. BURDEN OF PROOF
To prove the alleged § 23(b)(2) violation, Petitioner must demonstrate by a preponderance of the evidence that (a) Jacques was a state employee and that (b) knowingly, or with reason to know, (c) she attempted to use her official position as a judge (d) to secure for her brother-in-law an unwarranted privilege or exemption (e) which was of substantial value, i.e., worth $50 or more, and (f) which was not properly available to similarly situated individuals. G.L. c. 268A, § 23(b)(2)(ii), 930 CMR 1.10(10)(o).
The weight to be attached to any evidence in the record, including evidence concerning the credibility of witnesses, rests within the sound discretion of the Commission. 930 CMR 1.01(10)(n)3.
IV. ANALYSIS OF THE EVIDENCE
As just noted, Petitioner was required to prove by a preponderance of the evidence that Jacques attempted to use her position, and that she did so knowingly, or with reason to know. Petitioner’s theory was that Jacques used her position as a judge by injecting it into her conversations with Tremont Dental personnel, intending it to give weight to an implied threat of adverse consequences if they failed to accede to her demand.
Given the spate of contradictions in the evidence, the resolution of this case necessarily will depend on determinations about credibility. If the Commission finds that two witnesses providing contradictory testimony as to a required element of the violation are both credible, Petitioner does not meet the preponderance of evidence standard. “The Petitioner cannot prevail ‘if the question is left to guess, surmise, conjecture or speculation, so that the facts established are equally consistent [with no violation as with a violation]’. Tartas' Case, 328 Mass. 585 (1952).” In Re Kinsella, 1996 SEC 833, at 835.
The witnesses gave contradictory testimony about whether Jacques introduced herself as a judge during her phone calls with Tremont Dental personnel. Andrew Halchak gave varying testimony about whether he heard from Cheryl Jacques or from office staff that she was a judge. The Commission is not persuaded that his testimony that he heard it from Jacques necessarily was more accurate because he gave the testimony closer in time to the phone call with Jacques. Jin Choi said she heard “attorney general or judge” only once. The Commission finds no basis for concluding that this testimony by Halchak and Choi was more credible than Jacques’ testimony that she did not mention her job to either Halchak or Choi.
Dr. Lim adamantly insisted that Jacques called herself “Judge Cheryl Jacques” at the beginning of the phone call. Dr. Lim also testified that Jacques threatened to take steps if Tremont Dental failed to resolve a dispute about Green’s bill and demanded a complete write-off of the bill. Just as adamantly, Jacques testified that she did not identify herself as a judge, that she mentioned steps Green could take if Tremont Dental failed to resolve a dispute about his bill, and that she demanded that Green be charged at PPO rates. Some support for Jacques’s version is that the letter that Green sent to Tremont Dental on November 13, 2010, which undoubtedly demonstrates Jacques’s input, makes the same request that Green be charged at PPO rates and lists the same consequences for failing to resolve the dispute that Jacques says she mentioned during her phone call with Dr. Lim.
At the end of their telephone call, both Dr. Lim and Jacques testified that Jacques referred to her position, but there were contradictions even in these accounts. Dr. Lim testified that Jacques made the statement as a reply to her statement that she had patients waiting. Jacques testified that when Dr. Lim mentioned she had patients waiting, Jacques said she had a courtroom full of people waiting, and Dr. Lim asked her if she was a judge, and Jacques was “trapped” into saying she was a judge.
The Commission is thus confronted with two competing versions of what occurred. The version in which Jacques identified herself as a judge at the start of the conversation regarding the disputed bill would prove the element of § 23(b)(2) with regard to attempted use of her position, and would support a finding of a violation if Petitioner also proved that she threatened adverse action against Tremont Dental in a manner prohibited by § 23(b)(2) in order to gain an advantage for Green in his private dispute with Tremont Dental. Under the other version of what occurred, however, Jacques’s mention of her position was inadvertent and only in response to Dr. Lim’s question.
Again, the Commission has no basis for determining whether Dr. Lim’s testimony that Jacques mentioned her title purposefully or Jacques’s testimony that she mentioned it inadvertently is more credible. While best avoided, we would not consider an inadvertent mention of one’s position, in response to someone else’s question asking whether one holds that position, to amount to a knowing attempted use of position in violation of §23(b)(2).
After an assessment of credibility, the facts established by the evidence in this case are equally consistent with no violation as with a violation. Accordingly, Petitioner has not proved by a preponderance of the evidence that Jacques knowingly, or with reason to know, attempted to use her position to gain an unwarranted privilege for Green. In Re Kinsella, 1996 SEC at 835.
The allegation that Cheryl Jacques violated § 23(b)(2)(ii) by using her position to secure an unwarranted privilege for her brother-in-law, Preston Green, with regard to a bill for dental services from Tremont Dental is DISMISSED.
___//signed// _________________ ___//signed// _________________
Charles B. Swartwood III Martin Murphy
___//signed// _________________ ___//signed// _________________
Paula Finley Mangum William Trach
Regina L. Quinlan
Dated: August 20, 2013