Docket No. 524

In the Matter of Kevin B. Kinsella

Appearances:

Karen Gray, Esq., Counsel for Petitioner

Thomas E. Finnerty, Sr., Esq., Counsel for Respondent

Commissioners: Brown, Ch., McDonough, Burnes, Larkin and Rapacki
Presiding Officer: Commissioner Paul F. McDonough, Jr., Esq.

Date: October 15, 1996

Decision and Order


I. Procedural History


On May 10, 1995, the Petitioner initiated these proceedings by
issuing an Order To Show Cause ("OTSC") pursuant to the
Commission's Rules of Practice and Procedure. 930 CMR s. 1.01
(5)(a). The OTSC alleges that Kevin B. Kinsella, while serving as
a selectman in the Town of Scituate, violated G.L. c. 268A,
s.23(b)(2) by attempting to use his official position as selectman
to secure for his son the unwarranted privilege and exemption from
arrest, bail and prosecution for a charge of operating a motor
vehicle under the influence of intoxicating liquor (OUI). The
Petitioner has charged that Kevin Kinsella attempted to use his
position as a selectman to secure for his son the privilege or
exemption from arrest, bail, and prosecution by contacting the
chief of police to obtain his son's release from custody and to
give Kevin Kinsella "professional courtesy" in relation to his
son's arrest.


The Respondent filed an Answer in which he generally denied
the charge, except he admitted that Stephen Kinsella is his son and
he further answered that the Scituate Police Department violated
his son's constitutional rights by failing to contact a bail
commissioner in a timely manner and failing to allow his son to
obtain a blood test in a timely manner. He also asserted that he
was merely seeking the release of his son on the night of his
arrest; that his son was acquitted of the charges; and that the
usual disposition by a court for a first time offender is probation
for one year and attendance at an alcohol education program, after
which the charges are dismissed. The Respondent did not assert any
affirmative defenses.

An adjudicatory hearing was held on December 7, 8 and 18,
1995.[1] At the conclusion of the evidence, the parties were
invited to submit legal briefs to the full Commission. 930 CMR s.
1.01(9)(k). The Petitioner submitted a brief on March 27, 1996.
The Respondent submitted a brief on June 10, 1996. The parties
presented their closing arguments before the Commission[2] on
August 8, 1996. 930 CMR 1.01(9)(e)(5). Deliberations began in
executive session on August 8, 1996. G.L. c. 268B, s.4(i); 930 CMR
1.01(9)(m)(1). Deliberations were concluded on October 15, 1996.


II. Findings of Fact


1. Between 1991 and the present, Kevin Kinsella has served as
an elected selectman in the Town of Scituate. Among their duties,
the Board of Selectmen review the police department budget, make
general policies regarding the police department, and hire the town
administrator. The town administrator hires the police chief.

2. Stephen Kinsella is Kevin Kinsella's son.

3. At approximately 3:00 a.m. on May 11, 1992, Stephen
Kinsella was arrested by the Scituate police for OUI and failure to
stay in lanes.

4. Shortly after the arrest, Mr. Kinsella learned his son was
arrested when he received a call from his son at the police
station. As a result of this telephone call, Kevin Kinsella went
to the Scituate police station. He spoke with Officer Bud Thorn
who was the officer at the desk that night and he asked Officer
Thorn if he could see his son.

5. Officer Thorn introduced him to the arresting officer,
Officer Whittier. Mr. Kinsella did not approach Officer Whittier
and request that he drop the charges.

6. Officer Thorn offered to and did bring Stephen to see his
father. Mr. Kinsella asked Officer Thorn if he could take his son
home, but Officer Thorn informed him that the police could not
release his son

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as the bail commissioner refused to come to the police station
after 11:30 at night, and a person who had been arrested could not
be released until bail was set.

7. Officer Thorn suggested that Chief Nielen might let
Kinsella take his son home and asked Mr. Kinsella if he wanted
Thorn to call the chief. Officer Thorn called the chief and
informed him of Stephen Kinsella's arrest, and that Mr. Kinsella
was at the station and wanted to talk to the chief.

8. Chief Nielen called the station and spoke with Mr.
Kinsella. Kinsella asked the chief if he could take his son home
and he asked if he could bail his son. The chief informed Mr.
Kinsella that the bail commissioner would not come out after 11:30
at night, so Kinsella's son would have to stay in the jail until
the morning.

9. On May 11, 1992, Mr. Kinsella did not ask Chief Nielen to
drop the charges pending against his son.

10. Later May 11, 1992, Stephen Kinsella was taken by the
Scituate Police to the District Court where he was arraigned on the
charges of OUI and failure to stay in lanes and released on
personal recognizance.

11. In the afternoon of May 13, 1992, Kevin Kinsella called
Chief Nielen from the Scituate selectman's office and requested a
meeting with the chief.[3] According to Mr. Kinsella's testimony,
he was concerned with publicity and did not want to meet the chief
at the police station or in the selectman's office.[4] Prior to
May 13, the arrest had not been publicized and Kinsella hoped that
there would continue to be no publicity surrounding his son's
arrest.

12. Kinsella and the chief agreed to meet at the Cole
Parkway, a large parking area at the harbor, in the center of
Scituate. The meeting was held in Kinsella's car and lasted
between forty-five minutes and one hour. Kinsella requested that
the meeting be "confidential and off the record" because of his
concern about publicity.

13. Among the things discussed at the May 13 meeting were
Kinsella's displeasure that his son had not been released on bail
on the night of the arrest, that Kinsella believed that this
refusal to call the bail commissioner violated his son's
constitutional rights, and that the Scituate police were violating
the bail laws. Mr. Kinsella was concerned that the Town might be
subject to civil liability in the future if the police department
continued its bail practices.

14. Kinsella asked Chief Nielen for "professional courtesy".
According to Mr. Kinsella's testimony, in using the term
"professional courtesy", his intent was to seek the police chief's
assistance in keeping his son's arrest from being publicized in the
media.[5]

15. By the end of the conversation, Chief Nielen believed, by
Kinsella's use of the term "professional courtesy", that Mr.
Kinsella wanted him to intercede in his son's case or to drop the
charges. Chief Nielen believed that Kevin Kinsella was very
disappointed with how his son's case had been handled by the
police.[6]

16. Kinsella did not explicitly ask the police chief to drop
the charges against his son or to speak to the District Attorney
about the charges or to intervene in the court proceedings against
his son. Chief Nielen did not intercede in the arrest, bail, or
prosecution of Stephen Kinsella.


III. Decision


A. Jurisdiction


As a preliminary matter we must decide whether, at the
relevant time, Mr. Kinsella was a municipal employee[7] subject to
G.L. c. 268A. In his Answer, the Respondent admitted that he is a
selectman in the Town of Scituate, but, he denies, without
explanation, that he is a municipal employee.

We conclude, as a matter of law and fact, that, at all times
relevant, Mr. Kinsella was a municipal employee. Clearly under G.L.
c. 268A, s.1 a selectman is a person "performing services for or
holding an office in a municipal agency". By statute, G.L. c. 41,
s.1 includes the position of selectman as a town officer. Finally,
in Board of Selectmen of Avon v. Linder, 352 Mass. 581 (1967), the
Supreme Judicial Court, within the context of reviewing a violation
under the precursor to s.23(b)(2), stated "[t]he defendant as a
member of the Board of Selectmen, the highest town office, is a
municipal officer or employee within the meaning [of s.23]." Id. at
583.


B. Section 23(b)(2)


G.L. c. 268A, s. 23 contains the "standards of conduct"
applicable to all state, county, and municipal employees. Section
23(b)(2), in relevant part, provides

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that "No current officer or employee of a ...municipal agency shall
knowingly, or with reason to know, use or attempt to use his
official position to secure for himself or others unwarranted
privileges or exemptions which are of substantial value and which
are not properly available to similarly situated individuals."
Under 930 CMR s. 1.01 (9)(m)(2), in order to establish a violation
of G.L. c. 268A, the Commission must find that the Petitioner has
proven its case by a preponderance of the evidence.[8]


1. Conversation Of May 11, 1992


The Commission finds that there is not a preponderance of the
evidence (direct or circumstantial) that Mr. Kinsella attempted to
use his position to obtain an unwarranted privilege or exemption
from arrest or bail for his son on the evening of May 11, 1992. We
find credible Mr. Kinsella's testimony that Officer Thorn, not
Kinsella, suggested that the chief be contacted. The Petitioner has
not provided evidence to dispute this fact and Police Chief Nielen
confirmed that Officer Thorn placed the telephone call. The chief
also testified that he had previously received telephone calls at
home from concerned parents and that he considered Kinsella, that
night, to be a concerned parent.

There is also no evidence to show that Kinsella directly or
indirectly asked either the arresting officer or the chief to drop
the charges on the evening of May 11, 1992. Nor is there evidence
that he requested that the police bypass proper bail procedures.
Kinsella's unrefuted testimony was that he wanted to pay whatever
bail would be set for his son so that he could take his son home.


2. Conversation Of May 13, 1992


We must determine whether Kinsella, by holding a private
conversation with the police chief regarding his son's arrest,
knowingly or with reason to know attempted to use his selectman's
position to obtain an unwarranted privilege or exemption for his
son. In our review of all of the evidence, we acknowledge that
this is a very close case. This case does not present the
situation of a direct request for a favor. Rather, we must weigh
the testimony of the two individuals who were the participants in
the conversation at issue.

We find that Police Chief Nielen was sincere and credible in
his belief and interpretation of the conversation he had with Mr.
Kinsella on May 13, 1992. He believed that the Respondent was
requesting the police chief's intervention and leniency in the
criminal proceedings against Stephen Kinsella.[9]

However, we also find that Kevin Kinsella was credible in his
testimony regarding the reasons he requested a conversation with
the police chief. We find that the Respondent was concerned about
and wanted to minimize the publicity surrounding his son's arrest.
We find, based on Kinsella's testimony, which we credit, that
Kinsella's intent in initiating the conversation with the police
chief was not to influence his son's case, but rather, as a father,
to defend his son, and, as a selectman, to criticize the bail
practices of the Scituate Police Department and to share his
concerns that the bail laws were being violated by the Scituate
Police.[10]

Because we find both witnesses to the conversation to be
credible, we conclude that the Petitioner has not met the
preponderance of the evidence standard in this case. 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).

Although we do not conclude that the Petitioner has proved its
case, we do not condone the Respondent's conduct, which can best be
described as extremely poor judgment under the circumstances. The
Respondent's conduct suggested an abuse of power which, at the
time, warranted investigation by this Commission.


IV. Conclusion


After weighing the evidence, a majority of the Commissioners
conclude that the Petitioner has not proven, by a preponderance of
the evidence, that Mr. Kinsella violated G.L. c. 268A, s.23(b)(2)
in his conversations with the Scituate police chief.

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

[1] Commissioner McDonough was the duly designated presiding
officer in this proceeding.

[2] Present at the closing arguments were Commissioners Brown,
McDonough, Larkin, and Rapacki. The closing arguments were
stenographically recorded, and Commissioner Burnes was provided
with and read the transcript of the closing arguments. She
participated in the deliberations and decision of this case. In
rendering this Decision and Order, each of the Commissioners has
considered the testimony, evidence and argument of the parties.

[3] We find Kevin Kinsella credible in his testimony regarding
the date of this meeting. Chief Nielen's best recollection was
that this

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meeting was a couple of weeks after the arrest. Chief Nielen made
an entry in his diary of a meeting approximately May 27, 1992, but
did not make the entry contemporaneously with the event.
Kinsella's memory of the dates is supported by the testimony of
Selectmen Andrew Zilonis and Donald Brown who testified that, prior
to May 24, 1992, Kinsella had a private meeting with each of them
and told each of them that he had met with the chief.

[4] We find credible Kinsella's testimony.


[5] We find credible Kinsella's testimony.

[6] We find credible Chief Nielen's testimony.

[7] G.L. c. 268A, s.1(g) defines "municipal employee" as a
person performing services for or holding an office, position,
employment or membership in a municipal agency, whether by
election, appointment, contract of hire or engagement, whether
serving with or without compensation, on a full, regular, part-
time, intermittent, or consultant basis, but excluding (1) elected
members of a town meeting and (2) members of a charter commission
established under Article LXXXIX of the Amendments to the
Constitution. G.L. c. 268A, s.1(g).

[8] The Supreme Judicial Court has defined the preponderance
of the evidence standard as follows:

The weight or ponderance of evidence is its power to convince
the tribunal which has the determination of the fact, of the
actual truth of the proposition to be proved. After the
evidence has been weighed, that proposition is proved by a
preponderance of the evidence if it is made to appear more
likely or probable in the sense that actual belief in its
truth, derived from the evidence, exists in the mind or minds
of the tribunal notwithstanding any doubts that may linger
there.

Sargent V. Massachusetts Accident Company, 307 Mass. 246 , 250
(1940);see also Callahan v. Fleischman, 262 Mass. 437 , 438 (1928)
(in civil case, trier should be satisfied "if, after fairly
weighing the conflicting evidence, he feels sure that his finding
is supported by a greater weight of trustworthy evidence than is
opposed to it").

[9] At the time of the May 13, 1992 conversation, the bail and
arrest of Stephen Kinsella was not at issue as he had been
arraigned in the District Court and had obtained bail. The
judicial proceedings were pending against Stephen.

[10] Kevin Kinsella admitted that he has never taken any
official action in a public forum as a selectman to address the
bail issues in Scituate, but he testified credibly that he thought
it would be inappropriate to address such issues while his son's
case was pending in the court.

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End of Decision