June 9, 2011

DISPOSITION AGREEMENT

The State Ethics Commission ("Commission") and Edward Wheeler ("Wheeler") enter into this Disposition Agreement pursuant to Section 5 of the Commission's Enforcement Procedures. This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j).

On September 10, 2010, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Wheeler. On November 19, 2010, the Commission concluded its inquiry and found reasonable cause to believe that Wheeler violated G.L. c. 268A.

The Commission and Wheeler now agree to the following findings of fact and conclusions of law:

 

Findings of Fact

 

1. Wheeler began practicing law privately in 1980 when he passed theMassachusetts Bar. From 1980 to 2003, he had a solo practice in Malden, Massachusetts, focusing primarily on real estate title work.

2. In 2003, Wheeler was hired by Middlesex Register of Deeds Eugene Brune ("Brune") as First Assistant Register of Deeds ("First Assistant"). When Wheeler was hired, Brune told him that, although he was expected to work for the Middlesex Registry of Deeds (the "Registry") during Registry hours, Wheeler could still have a private law practice on the side, as long as he did so after Registry hours, or using vacation or personal time.

3. Wheeler was given, and still has, a Registry office in which there is a state-issued laptop computer and printer, as well as a state-issued fax machine with a fax number designated specifically for the First Assistant. Wheeler does not typically take his state-issued laptop out of the Registry.

4. Wheeler works Monday through Friday, 8:00 a.m. to 4:00 p.m., as FirstAssistant Register at the Registry office in Cambridge, and earns $79,000 per year.

5. Since becoming First Assistant in 2003, Wheeler has maintained a private law practice, from which he earns approximately $10,000 per year.

6. Wheeler's Registry computer hard drive has hundreds of documents dating from January 2005 through June 2010 that are related to Wheeler's private law practice, e.g., invoices for private counsel services, and documents with his private letterhead regarding private real estate, probate, contract and other types of cases ("Private Documents"), and not to his work as First Assistant. The Private Documents are mixed in with Registry-related documents on the hard drive.

7. All of the Private Documents with Wheeler's private letterhead contain Wheeler's Registry fax number as part of his contact information.

8. The time and date stamps on the Private Documents indicate that Wheeler was accessing and/or editing many of those documents during Registry hours. Wheeler's work on the Private Documents appears to have occurred infrequently between 2005-2008. It became more frequent in 2009 and 2010, with Wheeler typically working on two Private Documents per month in 2009, and five Private Documents per month during 2010, during several days of each month, at various times throughout the day, sometimes several times a day.

9. According to the Registry records, Wheeler was on duty at the Registry when the bulk of the Private Documents was completed on his Registry computer.

10. Wheeler does not have a separate office for his private law practice, and does not own, nor have access to, a private fax machine.

11. Wheeler often emailed himself Private Documents from his home computer to his Registry computer.

12. Wheeler regularly used his Registry printer to print out Private Documents, and used the Registry fax machine to send and receive Private Documents.

13. While Wheeler did some private legal work on his personal home computer, he did much of his private legal work on his Registry laptop in his Registry office.

14. Wheeler has asserted that much of his private work at the Registry was done during his lunch break. He said he did not have a regular lunch break but would take his break whenever his Registry schedule allowed. His computer records indicate that he created or modified approximately half of the Private Documents at times that would be consistent with the typical time of a lunch break. As for the remaining half, one quarter of the Private Documents were created or modified during work hours at times that would not be consistent with the time of a lunch break, and one quarter of the Private Documents were created or modified after Registry hours or on weekends.

15. Because Wheeler's computer records only indicate when a document was last modified, and not for how long it was worked on, one cannot determine from the records how much state time was used for his private practice. Nevertheless, Wheeler has acknowledged that he used a substantial amount of state time for this purpose.

Conclusions of Law

Section 23(b)(2)

16 . Section 23(b)(2) prohibits a public employee from knowingly, or with reason to know, using or attempting to use her official position to secure for herself or others unwarranted privileges or exemptions of substantial value not properly available to similarly situated individuals. [1]

17. The Commission has consistently held that the use of public resources of substantial value ($50 or more) for a private purpose not authorized by law amounts to the use of one's official position to secure an unwarranted privilege. These resources include publicly provided stationery, office supplies, utilities, telephones, office equipment, office space or other facilities, or a public employee's time on the public payroll.

18. By using Registry-provided office supplies, space, equipment and time to handle his private legal work for several years, Wheeler used his official Registry position.

19. The use of these Registry resources was a privilege.

20. The privilege was unwarranted because state resources are to be used solely for official state purposes.

21. The privilege was of substantial value because the value of the resources was well over $50.00. [2]

22. The privilege was not properly available to other private law practitioners.

23. Therefore, based on the foregoing, Wheeler violated § 23(b)(2).
 

Resolution

In view of the foregoing violation of G.L. c. 268A by Edward Wheeler, 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 and conditions agreed to by Edward Wheeler:

(1) that Edward Wheeler pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $5,000 as a civil penalty for violating G.L. c. 268A, § 23(b)(2); and

(2) that Edward Wheeler waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

 

STATE ETHICS COMMISSION

 

 

___ //signed//___________ 3/14/11__ 
Edward Wheeler                 Date 

 

__ //signed//__________ 6/09/11_
Karen L. Nober             Date
Executive Director

 

 

I, Edward Wheeler, have personally read the above Disposition Agreement. I understand that it is a public document and that by signing it, I will have agreed to all of the terms and conditions therein, including payment of $5,000 to the Commonwealth of Massachusetts, with such payment to be delivered to the State Ethics Commission.

 

__ //signed//__________ 3/14/11
Edward Wheeler             Date

 



 


[1] G.L.c. 268A was amended by c. 28 of the Acts of 2009. The language of § 23(b)(2) now appears in § 23(b)(2)(ii) of G.L.c. 268A, as amended.

[2] See Commonwealth v. Famigletti, 4 Mass. App. 585, 587 (1976) (Court held that $50 in cash is considered " substantial value" ).