DOCKET NO. 408
February 21, 1991
This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Sheriff Clifford Marshall (Sheriff Marshall) pursuant to section 5 of the Commission's Enforcement Procedures. This Agreement constitutes a consented to final Commission order enforceable in the Superior Court pursuant to G.L. c. 268A, section 4(j). On December 21, 1989, the Commission initiated, pursuant to G.L. c. 268B, section 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Sheriff Marshall. The Commission has concluded that inquiry and, on December 14, 1990, found reasonable cause to believe that Sheriff Marshall violated
G.L. c. 268A, sections 3 and 23. Also, on December 12, 1990 the Commission initiated a preliminary inquiry into possible violations of G.L. c. 268A, section 13 by Sheriff Marshall. The Commission concluded that inquiry, and on January 16, 1991, found reasonable cause to believe
that Sheriff Marshall violated G.L. c. 268A , section 13. The Commission and Sheriff Marshall now agree to the following facts and conclusions of law:
1. At all times material herein, Sheriff Marshall has been sheriff of Norfolk County. As such, he is a county employee within the meaning of G.L. c. 268A , section 1.
2. As sheriff he is responsible for, among other matters, the service of civil process by deputy sheriffs in Norfolk County. He is also responsible for appointing all deputy sheriffs in Norfolk County who are authorized to serve civil process. Such deputies serve at his pleasure.
3. Since Sheriff Marshall became sheriff in 1975, civil process has been served by the deputy sheriffs he has appointed through the Norfolk County Deputy Sheriffs Office (NCDSO). The NCDSO is not incorporated, nor is it formally a partnership. Its precise legal status as an entity is unclear. 1/
The NCDSO is located at 630 High Street, Dedham, Mass. It provides office support services for the approximately 20 deputies who serve civil process in Norfolk County. It employs several clerical workers. The NCDSO also employs a chief administrative deputy who manages the office. The chief deputy is selected by Sheriff Marshall. Each deputy who serves civil process obtains the papers to be served at the NCDSO office. After the deputy serves the papers, the NCDSO collects the fee (as authorized by G.L. c. 262, section 8 for the type of process in question) from the person who has asked that the process be served. The NCDSO keeps a certain percentage of each fee (approximately 40%) for its support services. The remainder is remitted to the deputy who served the papers.
4. In or about 1975 , shortly after becoming sheriff, Sheriff Marshall appointed his sister-in-law, Barbara Chaisson (Chaisson), to be the NCDSO chief administrative deputy. She has acted as such ever since.
I. Credit Card
5 .According to both Sheriff Marshall and Chaisson, for several years after Sheriff Marshall became sheriff, he incurred various expenses in promoting the NCDSO's interests. These included expenses incurred in attending various conventions (for example, the Massachusetts Sheriffs' Association and Massachusetts Deputy Sheriffs' Association conventions), promoting or opposing legislation which affects the NCDSO (for example, a bill that would affect the statutory fees), and meeting with local attorneys and other people to encourage them to use the NCDSO for their civil process purposes. Typically, these expenses involved paying for meals and/or drinks. Frequently, Sheriff Marshall paid for these expenses out of his own pocket, according to Sheriff Marshall and Chaisson. For reasons that are not clear, these expenses were not submitted to the county for reimbursement. 2/
6. In or about 1980, Chaisson gave Sheriff Marshall an American Express card which had been issued to the account of the NCDSO (hereinafter the NCDSO credit card or credit card). 3/ Sheriff Marshall understood that the card was to be used for "business-related purposes." According to Marshall and Chaisson, "business-related purposes" meant anything which could be said to promote the interests of the NCDSO. That could include expenses directly related to the NCDSO, such as a meal incurred in meeting with legislators and/or their staff to discuss legislation of interest to the NCDSO; or any expense incurred in an activity intended to promote the interests of the Norfolk County Sheriff's Department generally. In other words, in Sheriff Marshall's and Chaisson's view, if an expense would benefit the Sheriff's Department, then indirectly it would benefit the NCDSO.
7. Between December 1984 and April 1989, 4/ Sheriff Marshall made at least 298 charges on his NCDSO credit card in the total amount of $25,289.25. Fifty-four of those he has identified as personal, totaling $4,450.52. 5/ Twenty-five of which he has identified as having specific "business-related" reasons, totaling $4,818.55. The remaining approximately 220 he asserts are "business-related," although he has no specific recollection for any of them. They total $16,020.18.
8. Sheriff Marshall has reimbursed the NCDSO $4,450.52 for his personal charges. He reimbursed $301.00 on April 13, 1989. 6/ The Commission began this investigation on or about April 20, 1989, at which time Sheriff Marshall ceased using the NCDSO credit card. Subsequently, he reimbursed the NCDSO for the remainder of these personal charges.
9. Sheriff Marshall kept no contemporaneous records of what his NCDSO credit card charges were for. He did not review the monthly statements regarding these charges. They went directly to Chaisson. In reviewing the monthly charges on the NCDSO credit cards, Chaisson did not question any of Sheriff Marshall's charges.
10. Section 23(b)(2) prohibits a county employee from using or attempting to use his official position to obtain an unwarranted privilege of substantial value not otherwise available to similarly situated people.
11. As detailed above, Sheriff Marshall's use of the credit card to make $4,450.52 in personal charges "involved substantial value." 7/ In the absence of the card, Sheriff Marshall would have had to pay for these expenses out of his own pocket.
12. Sheriff Marshall received the NCDSO card because he is the sheriff of Norfolk County. Therefore, he used his position as sheriff to receive the substantial value as described above.
13. Sheriff Marshall's use of the card for
$4,450.52 in personal charges without making timely reimbursements involved an unwarranted privilege.
14. Therefore, by using the NCDSO credit card for personal charges without making timely reimbursements, Sheriff Marshall used his official position to secure an unwarranted privilege of substantial value, thereby violating section 23(b)(2).
15. Section 3(b) of G.L. c. 268A, in pertinent part, prohibits a state employee from, otherwise than as provided by law for the proper discharge of official duty, accepting anything of substantial value for himself for or because of any official act or act within his official responsibility performed or to be performed by him.
16. The NCDSO credit card was of substantial value to Sheriff Marshall because, in effect, it was a conduit through which the deputy sheriffs paid for approximately $21,000 in Sheriff Marshall's expenses which he has characterized as "business-related."
17. Sheriff Marshall's meetings with legislators and/or their staff members, and his various actions as sheriff in attempting to promote the NCDSO's interests, involved acts within his official responsibility.
18. By accepting and using the NCDSO credit card for "business-related expenses," Sheriff Marshall accepted an item of substantial value for or because of official acts performed or to be performed, and not otherwise authorized by law, thereby violating section 3. 8/
19. The Commission is not aware of any evidence that Sheriff Marshall knew he was violating section 3 by the conduct just described. 9/ In addition, this is the first occasion on which the Commission has applied section 3 to this kind of fact pattern. 10/
20. Section 23(b)(3) prohibits a county employee from causing a reasonable person knowing all of the facts to conclude that anyone can unduly enjoy his favor in the performance of his official duties.
21. By using the NCDSO credit card for not only personal charges in the amount of $4,450.52, but also for "business-related expenses" in the amount of $16,020.18 for which he can give no accounting, and by doing all of this while the person responsible for monitoring his use was not only his direct subordinate but his sister-in-law, Sheriff Marshall would cause a reasonable person knowing all of the facts to conclude that either his sister-in-law and/or his deputies could unduly enjoy his favor in the performance of his official duties, thereby violating section 23(b)(3).
II. Appointing Sons as Deputy Sheriffs
22. In or about January, 1985 Sheriff Marshall appointed his son, Clifford H. Marshall, III, as a Norfolk County deputy sheriff for the purpose of serving civil process. Clifford H. Marshall, III served process through the NCDSO from approximately January 1985 through October 1988. During that time he received $44,658.34 in fees for serving process (approximately $11,150 annually).
23. In or about March 1986, Sheriff Marshall appointed his son Michael Marshall as a Norfolk County deputy sheriff for the purpose of serving civil process. Michael Marshall served process through the NCDSO between March 1986 and the end of 1990. 11/ During that time he earned $54,784.07 in fees for serving process (approximately $10,700 annually).
24. Except as otherwise permitted in that section, 12/ section 13 of G.L. c. 268A prohibits a county employee from participating 13/ in a particular matter 14/ in which to his knowledge a member of his immediate family has a financial interest.
25. The decisions to appoint Clifford H. Marshall, III and Michael Marshall as deputy sheriffs were particular matters.
26. Sheriff Marshall participated in the foregoing particular matters by making the appointments as sheriff.
27. Sheriff Marshall's sons Clifford and Michael had a financial interest in these appointments inasmuch as they were then empowered to serve civil process for a fee. Sheriff Marshall was aware of the financial interest that accompanied these appointments.
28. By making the foregoing appointments as sheriff, Sheriff Marshall participated in particular matters in which he knew his sons had a financial interest, thereby violating section 13. 15/
Based on the foregoing facts, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings on the basis of the following terms agreed to by Sheriff Marshall:
1. that he pay to the Commission the amount of $8,900.00 as a civil penalty for his violations of G.L. c. 268A, section 23(b)(2) involving his use of the NCDSO credit card for personal charges; 16/
2. that he pay a $2,000.00 civil penalty for his violating section l3 in connection with his appointing his sons as deputy sheriffs; and
3. that he waive all rights to contest the findings of fact, conclusions of law and terms and conditions under this Agreement in this or any related administrative or judicial proceeding in which the Commission is or may be a party.
Date: February 21, 1991
1/According to Sheriff Marshall, the Internal Revenue
Service considers NCDSO to be a quasi-public agency, and as such it does not file tax returns. The State Ethics Commission has not had the occasion to rule on the issue of whether the NCDSO, or any organization like it, is a county agency for purposes of G.L. c. 268A.
2/ The county does not have any clear policy regarding reimbursable expenses. There are no written policies on the type or amount of expenses which can be incurred. In any event, under G.L. c. 37, section 21, the sheriff is authorized to be reimbursed for all of his travel expenses incurred in the performance of his duties. In Norfolk County, the sheriff submits to the county treasurer a reimbursement request which includes a receipt for the expense and a justifying memo. The county treasurer issues the sheriff a check with the appropriate reimbursement, if he approves the request.
3/ According to Chaisson, it was her idea to give Sheriff Marshall the credit card.
4/ As discussed below, Sheriff Marshall stopped using the card in April 1989. Due to the Commission's Statute of Limitations, 930 CMR 3.01, the Commission did not review charges prior to December 1984.
5/ These personal charges included, for example, various expenses incurred on trips to New York, Colorado, Rhode Island, Michigan, and Canada to watch his son play hockey; as well as airline tickets, birthday gifts, and dinners for family members.
6/ Sheriff Marshall was aware at that time that a concern had been raised by the media regarding his use of the card.
7/ Anything with a value of $50 or more is of substantial value. See Commonwealth v. Famigletti, 4 Mass. App. 584 (1976).
8/ Sheriff Marshall's use of the credit card for business purposes is analogous to conduct dealt with by the Commission in its so-called "vendor-sponsored travel" cases. In a series of Public Enforcement Letters, the Commission has made clear that a vendor may not deal directly with a public employee in paying for travel expenses the public employee incurs in officially dealing with the vendor. See, e.g., Public Enforcement Letters 89-5 through 89-7; 90-1 through 90-4. This is true even if the expenses would otherwise be entirely legitimate expenses.
As the Commission previously ruled, if a private party regulated by a public official wishes to pay for the travel expenses of the public official, the public official's agency should pay for the expenses and seek reimbursement from the private party (alternatively, the private party can attempt to make a gift to the public agency to cover the expenses, or a law, regulation, ordinance, or by-law can be promulgated to regulate the conditions under which such a private party will be allowed to pay these expenses). In this way, a public official's expenses are subject to review and approval, and the potential for abuse is thereby reduced.
An argument might be made that the monies which were used to pay for Sheriff Marshall's NCDSO credit card charges were, in effect, public monies within his own department (in that they were paid from that portion of the fees retained by the NCDSO). This argument would turn on the question of whether the NCDSO is a public or a private entity, a matter on which, as discussed above, the Commission has not yet ruled. Yet even if it were determined that the NCDSO is a public agency, these funds came from the fees collected by the deputy sheriffs. In effect, they are paying for Sheriff Marshall's expenses out of their own pockets, without any legal justification.
9/ Ignorance of the law is not a defense to a violation of the conflict of interest law, G.L. c. 268A. In the Matter of C. Joseph Doyle, 1980 SEC 11, 13, See also, Scola v. Scola, Mass 1, 7 (1945).
10/ Although as discussed above in fn. 8, the facts are analogous to the Commission "vendor-sponsored travel" cases.
11/ Michael Marshall resigned his deputy sheriff appointment on February 8, 1991.
12/ None of the exceptions applies.
13/ "Participate," participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, section 1G).
14/ "Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, section 1(k).
15/ According to Sheriff Marshall, the hiring of his two sons as civil process servers was solely within Chaisson's discretion as chief administrative deputy. For the purpose of this agreement, the Commission need not resolve that issue because the section 13 violations are based on Sheriff Marshall having commissioned his sons as deputy sheriffs while knowing that they were to be hired by Chaisson to serve civil process.
16/ The Commission does not deem it appropriate to impose a separate penalty for Sheriff Marshall's use of the NCDSO card for business-related purposes.