Decision and Order
Candies Pruitt-Doncaster, Esquire
Counsel for Petitioner
Thomas R. Kiley, Esquire
Counsel for Respondent Guy W. Glodis
Commissioners: Swartwood, Ch., Mangum, Trach
Presiding Officer: Ch. Charles B. Swartwood, III
DECISION AND ORDER
Petitioner filed an Order to Show Cause on June 28, 2012, against Respondent Guy W. Glodis (“Glodis”), former Sheriff of Worcester County, and filed an Amended Order to Show Cause (“AOTSC”) on August 1, 2012. The AOTSC alleges that Glodis violated G.L. c. 268A, § 23(b)(2)(ii) by using his official position as Sheriff to directly or indirectly cause an ineligible inmate, Joseph T. Duggan, III (“Duggan”), to be placed on work release. The AOTSC also alleges that Glodis violated G.L. c. 268A, § 23(b)(3) by acting officially regarding a request he received from his friend and campaign contributor, David Massad (“Massad”), to place Duggan on work release so that Duggan could continue to manage Massad’s construction projects.
An evidentiary hearing was held on November 19, 2012 and November 20, 2012. At the hearing, the parties made opening statements and introduced evidence through witnesses and exhibits. Both parties filed briefs. The parties presented closing arguments to the Commission on February 15, 2013.
The Commission began its deliberations in executive session on this matter on February 15, 2013, and continued deliberations on March 15, 2013 and March 27, 2013. In rendering this Final Decision and Order, each undersigned member of the Commission has considered the testimony, the evidence in the public record, and the arguments of the parties.
I. FINDINGS OF FACT
1. In October 2009, Glodis was Sheriff of Worcester County.
2. As Sheriff, Glodis was the highest authority at the Worcester County Jail (“WCJ”).
3. The following steps occur when an inmate is committed to the WCJ: (1) the inmate is booked and given a number; (2) the inmate meets with intake personnel and is asked a series of questions, e.g., family data; (3) the inmate obtains a photo identification; (4) the inmate meets with classification to determine his initial housing unit; (5) the inmate is escorted to his housing unit; (6) depending on the time the inmate entered the WCJ, he may or may not have a meal and go to bed; (7) the next day the inmate would have orientation; (8) the inmate would then see a social worker; (9) the social worker would have 72 hours to prepare all the paperwork needed for a classification board; and (10) within fifteen (15) days, the inmate would appear before the board to determine his/her classification (i.e. minimum, medium, maximum security).
4. Massad is a well-known businessman in Worcester County.
5. Duggan has worked for Massad for approximately ten years and he has known Massad for thirty years.
6. In October 2009, Duggan was the Project Manager for the construction of Massad’s GM dealership showroom. Duggan also managed the construction of Massad’s twenty-eight unit residential building in Ashland. As the Project Manager, Duggan was responsible for reviewing plans, setting prices and supervising approximately forty subcontractors.
7. On October 22, 2009, Duggan was found guilty of larceny and was sentenced to twenty-four months in the WCJ. Massad agreed to pay $18,000 in restitution on Duggan’s behalf and as a result, Duggan’s sentence was reduced to four months. Duggan’s sentence was stayed for seven days and he did not have to report to the WCJ until October 29, 2009.
8. Massad and Duggan knew that if Duggan went to jail, construction would have to stop on the projects Duggan was managing.
9. Massad and Duggan knew that the WCJ had a work release program that allowed eligible inmates to leave the jail for work.
10. During the seven days that Duggan’s sentence was stayed, he “called every friend [he] had that had connections with the jail” to see if anyone could help him to get into the work release program.
11. Duggan contacted his attorney Matt Pingeton; he also contacted John Harvey of Francis Harvey & Sons Construction, who, according to Duggan, had numerous connections with Worcester County Sheriff’s Department (“WCSD”) employees. Duggan also contacted his friends who worked for the WCSD, including Deputy Superintendent Scott Bove, Lieutenant of Classification Peter Bove, and Captain of Classification Paul Quinn, all of whom Duggan knew from frequenting Ralph’s Tavern. Ralph’s Tavern is owned by Scott Bove and is frequented by a number of WCSD employees.
12. During Duggan’s first night in jail, a guard approached him and said, “John Harvey says hi and we’ll take care of you.” Duggan told the guard that he wanted to get out on work release and the guard responded “[w]e’re working on it.”
13. Massad and Glodis have known each other for many years. Long before Glodis became Sheriff, he worked in the Marketing Department at Commerce Bank, which Massad owns.
14. Massad has regularly contributed to Glodis' political campaigns. In each of the years 2006, 2007, 2009 and 2010 Massad contributed $500 to Glodis’ campaigns. Massad testified that he “contribute[s] toward everybody and everything in Worcester.”
15. In October 2009, Massad called Glodis to find out if Duggan could be placed on work release. Glodis told Massad, “‘I don’t do that,’ but . . . ‘I’ll have somebody call you back.’”
16. Glodis could not recall any telephone conversations with Massad regarding Duggan.
17. Glodis was regularly asked questions about inmates and their status and his standard responses were: (1) “Hey, I’ll get back to you,” (2) “Let me look into it,” (3) I’ll have somebody call you,” and (4) “I’m not sure. Let’s follow up and have a conversation.”
18. As Sheriff, Glodis was not involved in the daily operations of the WCJ and, except for the initial meeting, Glodis did not attend weekly deputy meetings concerning the day-to-day operation of the jail.
19. Special Sheriff Jeffrey Turco (“Turco”) was responsible for overseeing the day-to-day operations at the WCJ.
20. The following telephone calls were made on October 28, 2009, between Glodis’ cell phone, Massad, Duggan and Special Sheriff Jeffrey Turco.
- 9:08 am: Massad called Duggan (1 minute)
- 9:11 am: Massad called Glodis (2 minutes)
- 9:27 am: Massad called Duggan (3 minutes)
- 10:07 am: Glodis called Massad (9 minutes)
- 10:34 am: Glodis called Turco (1 minute)
- 10:41 am: Massad called Duggan (10 minutes)
- 10:52 am: Glodis called Turco (1 minute)
- 3:16 pm: Massad called Glodis (2 minutes)
- 3:19 pm: Glodis called Turco (3 minutes)
- 3:21 pm: Massad called Duggan (1 minute)
- 3:22 pm: Massad called Duggan (2 minutes)
21. Glodis and Turco generally spoke multiple times per day. The following calls were made between Glodis’ cell phone and Turco’s number at the jail, which is also directed to the main office at the jail: nine calls on October 22, 2009; sixteen calls on October 23, 2009; twelve calls on both October 28 and 29, 2009; and fourteen calls on October 30, 2009. During this same time period, telephone calls between Massad and Glodis occurred only on October 28, 2009.
22. When an inmate arrives at the WCJ, a Social Worker is assigned to his case. The Social Worker does a psychosocial assessment of the inmate and sets up a three member classification board (“Board”) for the inmate. The Board must meet and make a recommendation concerning where the inmate should be housed (i.e. maximum, medium or minimum security) within fifteen (15) days of the date the inmate was committed. The goal is to conduct a Board as quickly and as carefully as possible. A Supervisor must then review the Board’s recommendation and decide whether to approve it.
23. All inmates who are stable and who arrive at the jail with non-violent charges are initially placed in a medium security facility before they are classified.
24. WCJ Classification Policy 942 (“Policy”) sets forth the criteria that are used to determine classification and to decide whether an inmate is eligible for either the Work Release Program, or the Day Supervision Program also known as Correctional Opportunity Advancement Program (“COAP”).
25. The work release program is a formal arrangement whereby an inmate is permitted to maintain approved and regular employment in the community, while returning to the custody of the WCJ during non-working hours.
26. Pursuant to the Policy the following criteria must be met for an inmate to be eligible for work release:
- Must be a sentenced inmate within one (1) year of parole eligibility or release date.
- No criminal offense which carries a mandatory term of incarceration prohibiting work release.
- Participation in education and/or substance abuse programs may be recommended to maintain eligibility status and approval.
- Court ordered payments may be made a condition of participation in the work release program if the inmate is actually working.
- No warrants or cases pending before any courts.
27. The Policy was revised and reviewed on an annual basis. One of the goals in reviewing the Policy was to make sure that actual practice matched the written Policy.
28. In October 2009, overcrowding was a major problem at the WCJ.
29. Pursuant to a 1989 consent decree (the “Consent Decree”) issued by U.S. District Court Judge Rya Zobel, which was amended in 2007, WCJ could only hold a total of 1,251 inmates. Additionally, each building had a cap for the number of inmates it could hold.
30. In 2009, a minimum security building was closed due to budget issues, which further exacerbated the overcrowding problem.
31. Director of Classification Michael Landgren (“Landgren”), testified that it is “a pressure that’s on everybody” to take into account bed availability in each building.
32. Assistant Deputy Superintendent Thomas Chappel (“Chappel”) testified that, “[e]very day I go to work hoping that we have enough beds for inmates that are coming in . . . that night . . . . It’s probably the number one priority in classification, make sure we have enough beds.”
33. Special Sheriff Turco testified that, “every single decision we made on a daily basis as a management team was how do we comply with the cap that we had agreed to with Judge Zobel.”
34. Additional inmates could be placed in the work release building by adjusting inmate schedules so that some inmates worked at night. Turco testified that, “Judge Zobel’s concern was that you didn’t want eight people in a small room that was built for four. But we could get six in there or push it higher to eight if we knew eight weren’t going to be there at a given time, because four were out working while four were inside.”
35. Every morning at 8:00 a.m., the top managers met to discuss the counts, look at where they were having trouble with beds, and to try to determine whether they could place any more inmates on COAP.
36. There was a struggle to maintain availability of medium security beds. Placing inmates on COAP could free up medium security beds for more serious offenders.
37. In order to comply with the Consent Decree and prevent overcrowding, Reintegration Specialist/COAP Coordinator Donald Siergie (“Siergie”) received a daily email detailing the current number of inmates, their charges and bail. Siergie would then screen the email for potential candidates for the COAP program.
38. During Glodis’ time as Sheriff, the number of inmates in the COAP program increased significantly.
39. On October 29, 2009, Duggan surrendered to the WCJ.
40. At the time he surrendered, Duggan also had charges pending against him in the Westborough District Court for home improvement contractor violations.
41. Duggan had been released on personal recognizance in the Westborough case.
42. Shortly after Duggan arrived at the WCJ, he was interviewed by Human Service Counselor Jeffrey Heenan (“Heenan”).
43. On October 29, 2009, Heenan was asked by either Assistant Deputy Superintendent Chappel or Reintegration Specialist / COAP Coordinator Siergie to set up a Board for Duggan.
44. Heenan was regularly asked to conduct Boards for inmates and he did not find it unusual that he was asked to set up a Board for Duggan.
45. Neither Glodis nor Turco asked Heenan to set up a Board for Duggan.
46. Duggan’s Board hearing took place on October 30, 2009.
47. Classification Officer Marc Keddy (“Keddy”) served as the Chair of the Board. Heenan was also a member of the Board.
48. The Board recommended that Duggan be placed in minimum security and approved him for work release.
49. Heenan and Keddy recommended Duggan for work release because: (1) his charges were non-violent, (2) Duggan was not a flight risk, and (3) Duggan had positive institutional adjustment.
50. Although the Policy states that an inmate is not eligible for work release when he has a pending case, Heenan and Keddy recommended Duggan for work release anyway because the inmate count was high and overcrowding was a factor in their recommendation.
51. In October 2009, Heenan recommended inmates for minimum security facilities even though they had minor pending cases in order to free up medium security beds.
52. The Policy does not contain any exception to allow inmates with pending cases to be placed on work release.
53. Keddy considered each case on its merits and considered all of the relevant facts, whether or not they were set forth in the Policy.
54. On October 30, 2009, Assistant Deputy Superintendent Chappel reviewed and approved the Board’s recommendation that Duggan be placed on work release.
55. On the Sheriffs Information and Reporting System (SIRS) document approving the board’s recommendation, Chappel wrote “[a]pprove MINIMUM Security—Work Release due to nature of charges & history. Postpone COAP.”
56. Chappel believed that the Board’s recommendation for Duggan was appropriate based on the length of his sentence and the non-violent nature of his charges.
57. Chappel knew that the judge in the Westborough District Court had released Duggan on personal recognizance. Chappel did not consider Duggan’s Westborough case to be an “open case” because Duggan had appeared before a judge and had been released on personal recognizance in that case. Chappel could not explain why he had considered Duggan’s Westborough case to be “open” for purposes of the COAP program (as indicated by his notation “postpone COAP”) but not for the Work Release program.
58. Chappel did not simply approve every recommendation he received from the Board. He testified that, “[d]ecisions I make affect public safety. If I am not comfortable putting a guy in minimum security whether it be work release, whether it be COAP, I am not putting my name on it.”
59. Chappel testified that he never received advice from anyone in the WCJ administration about any classification decision he has made, nor has anyone in the administration ever suggested that he make a particular decision.
60. Duggan was permitted to begin working for Massad pursuant to the work release program on October 30, 2009, at 3:46 pm.
61. Massad testified that a day or so later (after his call to Glodis), someone from the WCJ called him to explain the terms of the work release program and arranged for Duggan to start working for Massad on work release.
62. Work Release Coordinator David Cardinal met with Massad to explain the rules and regulations of the work release program and had Massad sign the required paperwork for Duggan’s work release. Cardinal could not recall calling Massad, but testified that it is possible he called Massad to set up the meeting.
63. Keddy testified that the time from when Duggan was committed to when he was approved for work release was “unusually quick.” However, there may have been other instances when work release approval occurred within a similar timeframe.
64. Chappel, Keddy and Heenan all testified that they never talked to Glodis or to Special Sheriff Turco about any inmate classification, including Duggan’s.
65. Director of Re-Entry Siergie testified that he never talked to Glodis or Turco about the Duggan matter.
66. Turco testified that he had no involvement in Duggan’s classification. The management team at the WCJ was encouraged to make decisions, and the Classification Department generally made their own decisions without Turco’s involvement.
67. Turco also testified that he never had any discussions with anyone about doing anything for Massad in 2009, and he never had any discussions with Glodis about Duggan in 2009.
68. Glodis testified that he never had any conversations with any member of the Sheriff’s Office about Duggan before Duggan was approved for work release.
69. Glodis testified that he first heard about Duggan in February 2010, when a reporter called to ask questions about Duggan.
A. G.L. c. 268A, § 23(b)(2)(ii)
Section 23(b)(2) (ii) prohibits public employees from knowingly, or with reason to know, using or attempting to use their official positions to secure for themselves or others unwarranted privileges or exemptions of substantial value which are not properly available to similarly situated individuals. In order to establish a violation of § 23(b)(2)(ii), Petitioner must prove by a preponderance of the evidence that: (1) Glodis was a state employee; (2) who knowingly or with reason to know used or attempted to use his official position; (3) to secure an unwarranted privilege or exemption for himself or others; (4) which was of substantial value; and (5) which was not properly available to similarly situated individuals.
We must first determine whether Glodis knowingly, or with reason to know, used or attempted to use his official position as Sheriff to: (1) explicitly direct one or more of his subordinates to place Duggan on work release or (2) implicitly direct one or more of his subordinates to place Duggan on work release by relaying Massad’s request, while Glodis knew or had reason to know that under all of the circumstances, his subordinates would give that request preferential treatment.
Petitioner argues that an inference may be drawn that Glodis explicitly directed his subordinates to place Duggan on work release from the evidence that: (1) Massad called Glodis, and a day or two thereafter someone from the WCJ called Massad and told Massad that Duggan could be placed on work release, and (2) Duggan was expeditiously placed on work release the day after he was committed to the WCJ, despite being ineligible for the work release program pursuant to the WCJ written policy. Alternatively, Petitioner asserts that it may be inferred from the evidence that Glodis implicitly directed one or more of his subordinates to place Duggan on work release by relaying Massad’s request to a subordinate while knowing, or having reason to know, that the subordinate would give the request preferential treatment. Respondent asserts that the evidence, including his own testimony, shows that he had no involvement in Duggan’s work release placement and he did not discuss Duggan’s classification with any WCSD employees.
There is evidence in the record that Glodis received a telephone call from Massad concerning Duggan. However, there is no evidence that Glodis ever relayed this message to anyone at the WCJ. Additionally, there is no evidence that Glodis participated in placing Duggan on work release. Heenan, Keddy and Chappel, the WCJ employees who were involved in recommending and approving Duggan’s work release, all testified that they did not discuss Duggan’s work release placement with either Glodis or Special Sheriff Turco. Based on the evidence in the record, we find that Petitioner has not met its burden of proving by a preponderance of the evidence that Glodis used or attempted to use his official position as Sheriff to direct one or more of his subordinates to place Duggan on work release. Because we have found that Petitioner has not proved this required element, Petitioner has not proved its case.
We also find that Petitioner has not met its burden of proving by a preponderance of the evidence that Glodis used his official position to obtain an unwarranted benefit or privilege for Massad or Duggan. The Commission has previously concluded that an “unwarranted privilege” is one that is “[l]acking adequate or official support” or “having no justification; groundless.” See EC-COI-98-2. There is evidence that overcrowding at the WCJ was a major problem and affected classification decisions, including the decision to place inmates on work release. There is also evidence that the WCSD employees who were involved in Duggan’s classification and work release placement based their decision on the fact that Duggan’s charges were non-violent in nature, the length of his sentence, the fact that he had been released on personal recognizance in the Westborough case, and the overcrowded conditions at WCJ. Given these facts we conclude that Duggan and Massad were not given an unwarranted privilege when Duggan was placed on work release.
Additionally, we find that Petitioner has not met its burden of proving by a preponderance of the evidence that work release was not available to inmates similarly situated to Duggan and to businessmen similarly situated to Massad. There is not sufficient evidence in the record to conclude that Massad was treated differently than similarly situated businessmen. The evidence shows that Glodis did not treat Massad any differently than he treated other members of the public who asked him for information about inmates. Glodis testified that when Massad called him to ask whether Duggan could be placed on work release, Glodis gave Massad one of his standard responses that he gave to anyone who asked him for inmate information (i.e. “Hey, I’ll get back to you,” “Let me look into it,” “I’ll have somebody call you,” and “I’m not sure. Let’s follow up and have a conversation.”). Additionally, there is not sufficient evidence to find that Duggan was treated differently than similarly situated inmates. Although Duggan’s work release placement happened “unusually quick[ly],” there is evidence that other inmates may have been placed on work release within a similar timeframe. Further, although the written Policy states that an inmate with a pending case is not eligible for work release, the evidence indicates that the actual practice with respect to classification sometimes differed from the written Policy because of the need to comply with the Court’s Consent Decree on over-crowding.
Accordingly, we find, that Petitioner has not proved by a preponderance of the evidence that Glodis knowingly or with reason to know used or attempted to use his official position to secure an unwarranted privilege for Duggan or Massad which was not properly available to similarly situated individuals. Therefore, we find that Petitioner has not proved by a preponderance of the evidence that Glodis violated § 23(b)(2)(ii) as alleged.
B. Section 23(b)(3)
Section 23(b)(3) prohibits a public employee from knowingly, or with reason to know, acting in a manner that would cause a reasonable person having knowledge of the relevant circumstances to conclude that any person could improperly influence or unduly enjoy his favor in the performance of his official duties, or that he was likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. Section 23(b)(3) further provides that “[i]t shall be unreasonable to so conclude if such . . . employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.” In order to establish a violation, Petitioner must prove by a preponderance of the evidence that: (1) Glodis was a state employee; (2) who knowingly, or with reason to know, acted in a manner; (3) which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude; (4) that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.
Petitioner argues that Glodis violated § 23(b)(3) as Sheriff by passing on Massad’s request that Duggan be placed on work release, and Glodis did not avoid this violation by publicly disclosing that Massad was his friend and a contributor to his political campaigns. Petitioner offered no evidence that Glodis acted as Sheriff to place Duggan on work release. There is also no evidence that Glodis passed on Massad’s request to place Duggan on work release. Three WCSD employees who were involved in Duggan’s work release placement testified that they did not discuss Duggan’s work release placement with Glodis. There was also testimony that Glodis was not involved in recommending and/or approving inmates for the work release program. Accordingly, we find that Petitioner has not proved that Glodis violated § 23(b)(3), as alleged.
For the above stated reasons, we conclude that Petitioner has not proved by a preponderance of the evidence that Glodis violated G. L. c. 268A, §§ 23(b)(2) and 23(b)(3), as alleged. Accordingly, we conclude these proceedings by finding for Respondent.
DATE AUTHORIZED: March 27, 2013
DATE ISSUED: April 1, 2013
 Commissioner Murphy abstained from participating in this matter. Commissioner Quinlan was not present to vote on this matter.
 930 CMR 1.01(10)(b).
 930 CMR 1.01(10)(m).
 930 CMR 1.01(10)(f).
 G.L. c. 268B, § 4(i); 930 CMR 1.01(10)(o)(1).
 Telephone calls made to Turco’s number at the WCJ were also directed to the main WCJ telephone line.
 Inmates who are eligible for COAP are released from the jail, but must wear an ankle bracelet.
 930 CMR 1.01(o)(2).
 It is not disputed that Glodis was at all relevant times a state employee.
 The OTSC alleges that Glodis obtained an unwarranted privilege, not an unwarranted exemption. Accordingly, we address only the unwarranted privilege issue.