April 22, 2014

FINAL ORDER

On March 17, 2014, the parties filed a Joint Motion to Dismiss the Proceedings.

On August 17, 2011, Petitioner filed an Order to Show Cause alleging that Respondent Richard W. McDonough violated G.L. c. 268A, § 23(b)(2).  The OTSC alleges that, as Director of Public Affairs and Governmental Relations of the Merrimack Special Education Collaborative, McDonough misused his official position to receive pension benefits to which he was not entitled.

In the Joint Motion to Dismiss, the parties report that in December, 2013, a federal grand jury returned an indictment of Carl A. Nystrom, former Chief Financial Officer of the Center.  The indictment refers to Lobbyist A, the Director of Public Affairs and Government, which was McDonough’s title at the Center.

Attached to the Motion is a letter from Assistant United States Attorney Andrew E. Lelling stating that the federal investigation encompassed Nystrom’s colleagues and associates at the Center and the Collaborative and persons who appear to have been impermissibly enrolled in the Massachusetts State Retirement System.  Lelling expressed concerns that there may be substantial factual and evidentiary overlap between the Ethics Commission matter and the federal matter, and that developments in the Ethics Commission matter could adversely affect the federal prosecution of Nystrom or the ongoing federal investigation.  Lelling respectfully suggests that the Commission move to stay its case pending resolution of the federal matter.

In the Motion, Petitioner states that the United States Attorney’s Office is in the best position to address the matter, and that dismissal of this Commission’s proceedings is in the best interest of the parties, the State Ethics Commission and the public.  The Motion notes that substantial resources would be required to proceed with this matter, with a high probability of out-of-state travel and/or reimbursement of travel expenses for out-of-state witnesses.

The Commission notes that the allegations underlying the federal investigation were first made public in 2011.  While the Commission may stay rather than dismiss a pending adjudicatory proceeding at the request of another agency, the Commission believes that it should dismiss rather than stay these proceedings because, given the length of time that already has passed, further delays at the request of another agency are not consistent with the interests of justice.

In addition, on September 9, 2011, Respondent McDonough was sentenced to seven years in federal prison after being convicted on charges unrelated to this matter.  His release date is in January, 2018.  The Commission concludes that McDonough’s continued incarceration would complicate the progress of an adjudicatory hearing and could restrict his ability to engage meaningfully in his defense.

For these reasons, the Joint Motion to Dismiss is ALLOWED, and the above-captioned matter is DISMISSED.

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Barbara A. Dortch-Okara, Chair                                 Paula Mangum

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Martin F. Murphy                                                       William J. Trach

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Regina L. Quinlan

 

Dated: April 22, 2014