In The Matter of Charles Lincoln
November 4, 2008
ORDER TERMINATING ADJUDICATORY PROCEEDING

Appearances: Karen Beth Gray, Esq.

Counsel for Petitioner

Kenneth H. Anderson, Esq.

Counsel for Respondent

Commissioners: Daher, Ch., Kane, Kempthorne, Veator, King

Presiding Officer: Chairman E. George Daher

The Order to Show Cause ("OTSC") in this case alleges that there was a three-year period from January 23, 2001 until January 8, 2004 when Respondent Charles Lincoln ("Lincoln") held a full-time job with the Brockton Police Department ("BPD") and a second full-time job as Director of Security at the Plymouth County Correctional Facility for the Plymouth County Sheriff's Department ("PCSD"). The OTSC alleges that Lincoln used a total of approximately 222 sick leave days at the BPD, and that on 148 of these days, he worked a full shift at PCSD. It is further alleged that Lincoln called in sick to the PCSD on 29 days, and that on seven of these days he put in a full shift at the BPD. The OTSC further alleges that in January 2004 Lincoln submitted a retirement application based on both of his positions, and subsequently received monthly retirement benefit checks based on the combined salary figure for both positions of $177,569.

The OTSC alleges that, both as a municipal employee of the City of Brockton and as a county employee of Plymouth County, Lincoln violated G.L. c. 268A, section 23(b)(2) by engaging in the conduct described above. Section 23(b)(2) provides as follows:

(b) No current officer or employee of a state, county or municipal agency shall knowingly, or with reason to know… :

(2) 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.

The OTSC alleges more specifically that sick leave pay is a privilege, and that the 155 days of sick leave pay that Lincoln earned from one job while working at his other job were unwarranted because they were not received for legitimate sick leave purposes. It also alleges that retirement benefits are a privilege, and that each of Lincoln's retirement checks was an unwarranted privilege because it was inflated due to his abuse of sick time. The OTSC alleges that Lincoln repeatedly used both of his public positions as a BPD officer and as the PCSD Director of Security to obtain these unwarranted sick leave pay benefits, which enabled him to hold both positions and secure unwarranted retirement benefits.

By Briefing Order dated August 1, 2008, the Commission Chairman, at the request of the full Commission, directed the parties to brief the question whether, by engaging in the conduct alleged in the OTSC, a municipal or county employee "uses or attempts to use his official position" within the meaning of G.L. c. 268A, section 23(b)(2). Because we conclude that this question must be answered in the negative, we terminate this adjudicatory proceeding.

There are a variety of ways in which a public employee may use or attempt to use his official position in violation of section 23(b)(2). A public employee "uses or attempts to use" her official position in violation of the statute when she accepts a gift or gratuity of substantial value given to her because of her position. See Ethics Primer, Receiving Gifts and Gratuities, available at www.mass.gov/ethics/primer_3_1.html. A public employee "uses or attempts to use his official position" in violation of the statute when he invokes his official status to obtain an unwarranted privilege, for example by explicitly referring to public employment or title to get special treatment. See In Re Smith, 2008 SEC ___, Decision and Order dated August 18, 2008; In Re Clancy, 2000 SEC 983. A public employee also "uses or attempts to use his official position" when he exercises his official authority to obtain some benefit, for instance by recommending that his agency hire his children, In Re Cassidy, 1988 SEC 371, or fixing a speeding ticket for a friend, In Re Cibley, 1989 SEC 422.

The allegation here is that respondent repeatedly and falsely called in sick to his two employers, thereby obtaining sick leave so that he could work both jobs. Sick leave was a benefit available to Lincoln in his positions as BPD lieutenant and PCSD Director of Security; he did not "use or attempt to use" his positions to get this benefit. He did not invoke his positions as Lieutenant and Director to get sick leave. Nor did he exercise his official authority to obtain sick leave. If the allegation is correct, he simply lied about being sick.

Generic public employee dishonesty, standing alone, does not amount to a use or attempted use of official position in violation of section 23(b)(2). More is required. A public employee in a position of trust who abuses that position to triple his vacation benefits beyond what he knows his entitlement to be violates section 23(b)(2). In Re Buonopane, 2006 SEC 2040. Similarly, a public employee who submitted a false claim for sick time and then used the powers of her position to prevent scrutiny of that claim would violate the statute. And, as indicated above, accepting gifts given because of one's official position, and invoking one's official position or exercising official powers to obtain a benefit, are all statutory violations.

Ordinary time and attendance fraud, absent any additional aspects, including those described above, does not amount to a use of official position in violation of the conflict of interest law. Such matters are best dealt with by employers through disciplinary or other employment-related action, not as violations of the conflict of interest law.

In summary, on review of the memoranda of the parties, we find that this adjudicatory proceeding should be, and hereby is, TERMINATED.

DATE AUTHORIZED: October 17, 2008

DATE ISSUED: November 4, 2008

______________________ ______________________

Jeanne M. Kempthorne David L. Veator

______________________

Patrick J. King

Chairman E. George Daher and Commissioner Matthew N. Kane do not join in this Order.