Public Enforcement Letter 95-2

Norfolk County Sheriff
Clifford H. Marshall
c/o John S. Mariani, Esq.
John S. Mariani, P.C.
21 Franklin Street
Quincy, MA 02169

January 9, 1995

Dear Sheriff Marshall:

As you know, the State Ethics Commission ("Commission") has
conducted a preliminary inquiry concerning whether you, as
Norfolk County Sheriff, violated the state conflict of interest
law, G.L. c. 268A, by using your power to appoint deputy sheriffs
as a means of raising funds for your political campaign
committee. Based on the staff's investigation (discussed below),
the Commission voted on November 8, 1994 that there is reasonable
cause to believe that you violated the state conflict of interest
law, G.L. c. 268A, s.s.13 and 23. The Commission, however, does
not feel that further proceedings are warranted and has, rather,
determined that the public interest would be better served by
bringing to your attention, and to the attention of your
colleagues throughout the Commonwealth, the facts revealed by our
investigation and by explaining the application of the law to
such facts, with the expectation that this advice will ensure
your understanding of and future compliance with the conflict of
interest law. By agreeing to this public letter as a final
resolution of this matter, you do not admit to the facts and law
discussed below. The Commission and you have agreed that there
will be no formal action against you in this matter and that you
have chosen not to exercise your right to a hearing before the
Commission.

I. Facts

1. At all relevant times, you were the sheriff of Norfolk
County, a paid elected position. You were first elected as
Norfolk County Sheriff in 1974 and were subsequently reelected as
sheriff in 1980, 1986 and 1992.

2. As Norfolk County Sheriff, you have the statutory power
to appoint deputy sheriffs, who serve at your pleasure.[1] As
Norfolk County Sheriff, you have appointed 795 deputy sheriffs
since 1986. As of late 1992, there were approximately 1166
Norfolk County deputy sheriffs.[2]

3. Each person you appoint as a deputy sheriff signs a
written oath of allegiance, which is also signed by you. This
form is then filed with the Office of the Secretary of State.[3]

4. Deputy sheriffs have certain statutory powers,
including the power to serve process, to transport prisoners and
other persons in custody, and to arrest, as set forth in G.L. c.
37.[4]

5. In 1986, 1989 and ending in January 1992, you, as
sheriff, held three swearing-in ceremonies for deputy sheriffs,
which each occurred in connection with a meal for which a
donation payable to your political campaign committee, the
Clifford Marshall Sheriff Committee ("Marshall Committee"), was
charged. Participation in the meal (and payment of the donation)
was not required for participation in the swearing-in ceremony,
nor were your deputy sheriffs required to attend the swearing-in
ceremony.

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6. In a "Dear Deputy Sheriff" letter dated December 16,
1991, you informed the addressees of the following,

The annual "Swearing-In" Ceremony of the Norfolk County
Civil and Criminal Deputy Sheriffs will take place
Sunday, January 12, 1992, at Mosley's On-the-Charles
... a breakfast will precede the Swearing-In ceremony
beginning at 10:00 a.m. If you are joining us for
breakfast the donation is $50 per person.[5]

The letter was printed on letterhead stationery ("Sheriff
Clifford H. Marshall, High Sheriff to Norfolk County, P.O. Box
266, Dedham, MA 02026") and was signed by you above "Clifford H.
Marshall, Sheriff." The stationery states at the bottom, "This
stationery & postage privately paid for." Included with the
letter was a printed reply card captioned, "Deputy Sheriff's
Swearing-In Ceremony, January 12, 1992." The reply card provided
three responses to check in the following order: "Enclosed is my
$50.00 check to attend the breakfast;" "I plan to attend only the
Swearing-In"; and "I plan to attend the tour." The reply card
instructed the recipient to respond by January 8, 1992, and
further instructed, "No corporate checks accepted. Please make
checks payable to: Clifford H. Marshall Sheriff Committee. P.O.
Box 266, Dedham, MA 02026."[6]

7. In several statutorily-required reports filed with
the state Office of Campaign and Political Finance ("OCPF"), the
Marshall Committee reported the receipt in December 1991 and
January 1992 of 220 contributions, totaling $13,245. Two hundred
and fifteen of the contributions were from individuals and the
vast majority were in the amount of $50. Of the 215 individual
contributors, 188 were Norfolk County deputy sheriffs.

8. You have, through counsel, informed the Commission that
you have ceased the practice of holding political fundraisers in
connection with the swearing-in of deputy sheriffs and will hold
no such events in the future.

II. Discussion

As Norfolk County Sheriff, you are a county employee. As
such, you are subject to the conflict of interest law, G.L. c.
268A.

The evidence developed in this investigation indicates that
you previously made the ceremonial swearing-in of deputies the
ostensible official purpose of three campaign fundraising events.
Thus, you used your official position to turn an official
swearing-in ceremony into a valuable fundraising tool for your
campaign committee. The question is whether, in so doing, you
secured for your campaign committee and yourself an unwarranted
privilege of substantial value which was not properly available
to you and similarly situated persons, in violation of G.L. c
268A, s.23(b)(2).[7]

The Commission concludes that your use of the swearing-in of
deputies as a political fundraising attraction benefitted a
personal rather than a public interest and thus exceeded the
proper use of your office as sheriff. (Compare the situation if,
for example, you had used the swearing-in ceremony as an
attraction for a fundraiser for a Jail inmate literacy program.)
Furthermore, the combining of the swearing-in ceremony with the
fundraiser imbued the fundraiser with a sense of credibility (as
an official event) and fostered an obligation to attend on the
part of solicitees that otherwise would have been lacking if it
had been merely a bare bones political fundraiser. Accordingly,
your use of the swearing-in ceremony as an attraction for your
fundraisers was an unwarranted privilege of substantial value[8]
in violation of s.23(b)(2).[9]

This same conduct also violated G.L.c. 268A, s.23(b)(3)'s
prohibition against a public official knowingly, or with reason
to know, acting in a manner which would cause a reasonable
person, with knowledge of the relevant circumstances, to conclude
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 party or person. Your
solicitation of political contributions from current deputies in
conjunction with the swearing-in of new deputies, especially
given the extraordinary large number of deputies appointed by you
and the apparent lack of any public utility of many of those
deputies, would cause a reasonable person to conclude that you
appoint political supporters as deputy sheriffs and expect those
deputies to continue to contribute to your campaign fund after
their appointment. The reasonable inference from these
circumstances and the appearance created by your conduct is that
your appointment of deputy sheriffs is unduly influenced by the
fact that the appointees are contributors to your political
campaign fund or are likely to be contributors following their
appointment. This violates s.23(b)(3).

Page 720

III. Disposition

Based upon its review of this matter, the Commission has
determined that this letter should be sufficient to ensure your
understanding of and future compliance with the conflict of
interest law.[10]

This matter is now closed.

-------------------------
[1] The principal powers of county sheriffs are set forth in
G.L. c. 37. Pursuant to G.L. c. 37, s.3, sheriffs are empowered
to appoint deputies "who shall be sworn before performing any
official act."

[2] Some current deputy sheriffs were appointed by your
predecessors in office prior to your first election as sheriff.

[3] We reviewed all of the allegiance forms of deputy
sheriffs appointed by you since January 1986 which have been
filed with the Secretary of State's Office. The allegiance form
used in each appointment is the same and each form gives "Deputy
Sheriff" as the title of the appointee's office. None of the
forms refers to the "Deputy Sheriff" title or appointment as
"honorary" or otherwise distinguishes among the appointments.

[4] While many of the deputy sheriffs appointed by you
exercise at least some of their statutory powers, e.g., in the
course of their employment as correction officers at the Norfolk
County Jail and House of Correction or as civil deputies, many
others have never exercised any of their official powers or
received any compensation for any official acts as deputy
sheriffs.

[5] In addition, the letter invited the invitee "to attend
an exclusive preview of the Norfolk County Sheriff's Office and
Correctional Center," i.e., a tour of the new Norfolk County
Jail.

[6] Given that the Marshall Committee paid $320 to have
1,250 reply cards and envelopes printed, it appears that that
many persons were invited to the January 1992 event. A far fewer
number of people, however, apparently attended the breakfast, as
on January 12, 1992, the Marshall Committee paid Mosley's $2,300
for the function, at a rate of $8 per person, indicating that
breakfast was served to approximately 275 people.

[7] Section 23(b)(2) of G.L. c. 268A prohibits a county
employee 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 which are of
substantial value and which are not properly available to
similarly situated individuals.

[8] As the Commission noted in EC-COI-92-5, for the purposes
of s.23(b)(2), the raising of $50 or more would constitute
substantial value. Commonwealth v. Famigletti, 4 Mass. App. Ct.
584, 587 (1976); Commission Advisory No. 8.

[9] The use of an official swearing-in ceremony for
political fundraising purposes is analogous to the use of the
Great Seal of the Commonwealth on private stationery for
fundraising and other campaign purposes, which was dealt with by
the Commission in its March 1992 legal opinion EC-COI-92-5. The
reasoning by which the Commission in EC-COI-92-5 determined that
"the Seal may not be displayed by public officials seeking
reelection or higher office on private stationery for fundraising
or other campaign purposes" appears readily applicable to the
facts of this case.

In EC-COI-92-5, the Commission prohibited the use of the
Seal based upon the following reasoning:

...We find that the use by a public official of the
Seal for political fundraising or other campaign
purposes exceeds the proper use of a public employee's
office. (footnote omitted). Such campaign activity
benefits a personal rather than a public interest. The
recipients of such solicitation could reasonably infer
that the solicitation was supported or endorsed by the
Commonwealth, when in fact it is intended to benefit a
personal purpose (an individual's political campaign).
(footnote omitted) Because displaying the state Seal
may foster a sense of credibility or obligation which
the solicitation might not otherwise have had, the use
of the state Seal is an unwarranted privilege in
violation of s.23. (footnote omitted)

[10] The Commission is authorized to impose a fine of up to
$2,000 for each violation of G.L. c. 268A. The Commission chose
to resolve this matter with a public enforcement letter because
the Commission believes that it may not have been readily
apparent that this intermingling of political and official
activity would raise issues under G.L. c. 268A.

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