Public Enforcement Letter 91-3

George Nelson, Jr.
c/o Richard K. Sullivan, Esq.
36 Washington Street
Wellesley, MA 02181

Date: March 13, 1991

Dear Mr. Nelson:

As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that you have been involved in attempting to fix tickets at the request of fellow police officers connected in some way to the person ticketed.   The results of our investigation (discussed below), indicate that the conflict of interest law may have been violated in this case. In view of certain mitigating circumstances (also discussed below), the Commission, however, does not feel that further proceedings are warranted.  Rather, the Commission has determined that the public interest would be better served by bringing to your attention the facts revealed by our investigation and by explaining the application of the law to such facts, trusting that this advice will ensure your future understanding of the law.  By agreeing to this public letter as a final resolution of this matter, you do not admit to the facts and law discussed herein.  The Commission and you are agreeing that there will be no formal action against you 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 an officer in the Wellesley Police Department (WPD). As such, you were a "municipal employee" as defined by G.L. c. 268A, §1.

2.   According to the court copy of citation no. A3096387, you issued a speeding ticket on February 2, 1988 to Catherine Ewing for speeding 46 mph in a 30 mph zone.  The potential fine was $50.  The court record indicates that on May 4, 1988 a hearing occurred at the Dedham District Court at which time Ewing was found not responsible for the violation. (You were not requested to be present at the May 4, 1988 hearing by either the WPD or anyone else.)

3.  In a note dated February 10, 1988 from you to WPD Police Prosecutor Peter Nahass, you wrote:

     The enclosed citation no. A3096387 was issued on Feb. 2nd, the operator is the sister of Boston Police Detective assigned to the Att. Generals Office (Det. John McReynolds 727-4190). He called today, asking if he could have some consideration regarding the citation. I told him we’ take care of it, via a hearing to dismiss the ticket. If there is any problem with this please let me know.

4.  An undated note of reply from Nahass to you states:

     I have been instructed by the Chief not to get involved in any dispositions, that in the case of criminal they be handled by the ADA and in the case of civil they be handled by a Clerk of Court. What I would suggest is that you call Det. McReynolds and tell him to call Dedham Dist and make his request.

5.  You provided us with the following information. You were first appointed to the WPD as a special police officer in 1980, and served until1983 as such. You were appointed a full-time police officer on April 25, 1983.

     As to the Ewing citation, you wrote the February 10, 1988 note to Nahass.  You explained that McReynolds called the WPD asking for you, but you were not available so McReynolds left a message. You played telephone tag once or twice.  Eventually you returned the call to McReynolds. McReynolds advised you that you had issued a citation to Catherine Ewing and that Ewing was his sister.  McReynolds asked for consideration on the citation; however, you could not recall the exact conversation.  You told McReynolds that you no longer had control over the citation, that it had been submitted through normal channels and that McReynolds would have to speak to the police prosecutor.  His sister would have to put in for a hearing if the citation were to be dismissed or consideration sought.  You told McReynolds that you would speak to Nahass.

     You had no further contact with McReynolds.  You understood that when McReynolds asked for consideration he wanted the ticket either dismissed or other steps taken so that ultimately his sister would not have to pay a fine.  There was nothing that you could do about it, so you simply passed the request on to the next person (the police prosecutor who goes to court on citations).  We asked you why you wrote the note to the police prosecutor if you advised McReynolds that there was nothing you could do.  You responded that you just wanted to alert Police Prosecutor Nahass about the citation.

     We asked you what the following language in the note meant: "I told him we'd take care of it, via a hearing to dismiss the ticket.”  You pointed out that you used the word "we'd" as opposed to "I'd", and this supported your claim that you were not in a position to act on McReynolds' request but that any request would have to be acted on by the police prosecutor.  Ultimately, however, you could not satisfactorily explain the difference in import between your note which suggests that the ticket will be dismissed and your testimony, which merely suggests that the request for consideration would be passed along, but it would ultimately be up to the clerk magistrate.

     You did not feel any pressure to act on McReynolds' request.  However, McReynolds was a fellow police officer and as such you did not wish to be in a position of denying the request.

     We asked you if you had any understanding that the police prosecutor was in a position to act on a request for consideration.  You replied negatively, that such requests can only be granted by a clerk magistrate.  The police prosecutor, however, could forward the request to the clerk magistrate.

     You have not been involved with any similar requests from police officers from other jurisdictions, police officers within your department or any friends or relatives. You have no knowledge of a practice in the department where a person could seek consideration on a citation by requesting a hearing and then contacting the police prosecutor to use his influence with the clerk magistrate.[1]

6.  Boston Police Sergeant John McReynolds provided us with the following information: He was appointed to the Boston Police Department in January 1978, worked as a patrolman until 1983 when he became a detective.  In 1987, he was temporarily assigned to the Attorney General's drug control task force where he remained until he was promoted to sergeant in September, 1990.  He currently serves as a patrol supervisor.

     As to citation no. A3096387, his sister showed him a copy of the citation shortly after she received it.  She told him she had been stopped for speeding and was thinking about whether to appeal.  His sister did not ask him to do anything regarding the citation.  He told her, however, that he would contact the issuing officer and on the basis of that conversation, advise her whether she should appeal.  He did contact you for that purpose.  He wanted to find out whether his sister was discourteous or whether there were any other violations observed for which she was not cited.  If either case existed, he would have advised her to pay the fine.[2]

     In any event, at the same time he was having this discussion with his sister at her house, he tried to contact you.  He telephoned the WPD and left a message indicating he was a Boston police officer working out of the Attorney General's Office.  You were not available.  You subsequently returned his call at a later time.  McReynolds asked you whether his sister had been belligerent or whether there were any other violations you did not cite her for. You replied no to both.  He may have advised you that his sister would ask for a hearing.  He did not ask for or suggest favorable treatment or consideration.  McReynolds could not recall if he used the word consideration, but if he did, it would be just to indicate his appreciation for the time you had taken in returning his call.

     We showed McReynolds the note from you to Nahass in which you asked Nahass for consideration based on the call from McReynolds.  The document did not change his testimony.  He could only assume that you drew an inappropriate inference from your discussion with him, i.e., that McReynolds was seeking special consideration on the ticket.

7.  As part of our investigation of this matter, we determined that WPD Lt. Donald Whalen had sought “consideration” on a ticket issued to the daughter of a former state police officer.  Lt. Whalen justified his conduct primarily on the basis that by helping the former state police officer, he would maintain good relations with the state police and, therefore, benefit the WPD.  Lt. Whalen also observed that this practice goes on state­wide and it is to be expected.  Any department which is not willing to cooperate soon becomes ostracized.  Any officer who is being truthful would corroborate his information as to the common practice of seeking consideration on tickets within the department.[3]

II. Analysis

     As a Wellesley police officer, you are a municipal employee for purposes of the conflict of interest law, G.L. c. 268A.  Section 23(b)(2) prohibits a municipal employee from using or attempting to use his position to secure an unwarranted privilege of substantial value not otherwise available to similarly situated people.  Section 23(b)(3) prohibits a municipal employee from acting in a manner which would cause a reasonable person knowing all of the relevant circumstances to conclude that anyone can unduly enjoy his favor in the performance of his official duties.

     “Ticket fixing” violates §23.  See generally, In the Matter of Lawrence Cibley, 1989 SEC 422 (Commission approved disposition agreement in which Selectman Cibley paid $1,000 fine for violating §§23(b)(2) and (3) by asking police to fix a friend’s ticket).  Thus, in the Commission's view, if a public official/employee is involved in seeking and/or obtaining special consideration on tickets because the alleged violator has private connections to that public official/employee, such conduct would raise §§23(b)(2) and (b)(3) issues.  If the ticket involved a fine of $50 or more, the substantial value requirement would be satisfied for §23(b)(2) purposes.  In addition, if the reason consideration were sought was private connections to a public official/employee, that would involve an unwarranted privilege.  Accordingly, such conduct would violate §23(b)(2).  In addition, such conduct would cause a reasonable person knowing all of the relevant circumstances to conclude that the alleged violator could unduly enjoy the favor of the public official/employee who seeks or grants such consideration.

     You concede you wrote the above-quoted note.  You deny, however, that you were trying to get the ticket dismissed.  According to you, you were merely passing along a request.  The matter was out of your hands. It would be up to the clerk magistrate to decide whether to grant the request.

     In our view the above-quoted note is determinative.  The language you use in that note leaves very little doubt that you were attempting to invoke a convention or protocol by which a police officer will seek to dismiss a ticket at the request of another police officer so long as the issuing officer does not object. See, In the Matter of Lt. Donald Whalen, Public Enforcement Letter 91-2. You, of course, were the issuing officer and had no apparent objection to consideration being sought.  Thus you wrote to the police prosecutor stating in part, “The operator is the sister of a Boston Police Detective ... He called today, asking if he could have some consideration regarding the citation. I told him we'd take care of it, via a hearing to dismiss the ticket.  If there is any problem with this please let me know.”  Based on this language, in our view there can be little question that your intention was to have the ticket dismissed. (That, of course, is consistent with what you understood Detective McReynolds' intention to be.)

     Consequently, the evidence would support a reasonable cause finding that you violated §23(b)(2) and (3) in that you attempted to secure an unwarranted privilege of substantial value for Catherine Ewing and that by your conduct you would cause a reasonable person to conclude that she could unduly enjoy your favor in the performance of your official duties.

     In our view the seriousness of this case transcends the dollar amount of the ticket and the fact that it involved only a request.  The ability of a police officer to seek special treatment for somebody because of that person's private relationship to a police officer is the kind of conduct that offends and troubles people. It demonstrates that there is one standard for the public, but a different standard for those with private connections to the police. In the area of law enforcement, the standards must be clear and be administered in an even-handed way.  If Lt. Whalen is correct in his view that this practice is widespread, then other police officers need to be informed and warned that this activity is unlawful. The wide dissemination of this letter by the Commission, with your consent, should help achieve that purpose.

III.  Disposition

     Based on its review of this matter, the Commission has determined that the sending of this letter should be sufficient to ensure your understanding of, and your future compliance with, the conflict of interest law.[4]  This matter is now closed.  

 

 



[1] Earlier, you had told us that this kind of activity has gone on for decades in most police departments in the state, and that you were upset at having your integrity questioned at this time when the practice had gone on for so long.
[2] In McReynolds' experience, if his sister appeared at a hearing and explained the situation, coupled with the fact that she had no previous citations, there was a chance the citation would be dismissed as long as the issuing office would have no recollection of an unpleasant contact.  If the officer had already given her a “break” at the scene, or she was discourteous, he might argue against the hearing officer dismissing the ticket.
[3] The Commission concluded there was reasonable cause to believe Lt. Whalen violated the conflict of interest law by his efforts to seek consideration as just described. The Commission resolved its case against Lt. Whalen with a public enforcement letter as well. Public Enforcement Letter 91-2.
[4] 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 for the following reasons: (1) You do not appear to have attempted to exert (nor could you have exerted) any pressure on police prosecutor Nahass (who was directly answerable to Chief Fritts) to dismiss the ticket. Compare, Cibley where the person making the request was a selectman, a member of the board with the most significant power in the town, including jurisdiction over police matters. (2) You were making only a request. You were not in a position to dismiss the ticket yourself. (3) The amount of the ticket was relatively small. (In Cibley the ticket was for $200.) (4) Most importantly, there probably has been a widespread misapprehension among police officers that it was appropriate to seek consideration on tickets when requested by a fellow police officer, in part as a professional courtesy and in part to cultivate good relations with the officer's police department. You appear to have written your note primarily for those reasons, as opposed to strictly private reasons.