AMENDED DECISION AND ORDER
Stephen P. Fauteux, Esq.
Karen Gray, Esq., Counsel for Petitioner
Michael P. Angelini, Esq., Counsel for Respondent
Commissioners: Brown, Ch., Burnes, Larkin, McDonough and Rapacki
Presiding Officer: Commissioner Nonnie S. Burnes, Esq.
I. Procedural History
On January 19, 1995, the Petitioner initiated these
proceedings by issuing an Order to Show Cause ("OTSC") pursuant to
the Commission's Rules of Practice and Procedure. 930 CMR
1.01(5)(a). The OTSC alleged that Town of Oxford Police Chief
James Triplett ("Triplett"), violated G.L. c. 268A, s.23 in
relation to several different matters. In particular, the
Petitioner alleged that Triplett violated s.s.23(b)(2) and (b)(3)
by directing that Laurie Carlsen, the daughter of a former Oxford
police officer, be released from police arrest without a bail
hearing being held, and by delaying the initiation of a criminal
complaint against her.
Triplett filed an Answer on March 24, 1995 in which he denied
the charges relating to the Carlsen incident. He asserted various
affirmative defenses, including that the period of limitations for
such acts has expired. Numerous pre-hearing conferences were held
during 1995 and 1996. At those conferences, procedural issues were
discussed primarily focusing on discovery and scheduling. The
Adjudicatory Hearing, with Commissioner Burnes presiding, was
held on five separate dates: February 7, February 8, March 4,
March 5 and April 4, 1996.
II. Findings of Fact
1. Throughout 1991 and 1992, Triplett served as the police
chief for the Town of Oxford.
2. At 7:49 p.m. on Sunday, September 8, 1991, Oxford Police
Officer Carol LaFleche was dispatched to the scene of a two-car
automobile accident on Clover Street in the Town of Oxford.
Officer LaFleche determined that one of the operators, later
identified as Laurie Carlsen, was intoxicated.
3. Officer LaFleche identified herself as a police officer
and asked Ms. Carlsen for her driver's license and registration.
Ms. Carlsen refused to comply with Officer LaFleche's request and
responded to Officer LaFleche with profane language.
4. Officer LaFleche attempted to place Ms. Carlsen under
arrest. Ms. Carlsen resisted and, in doing so, she physically
assaulted Officer LaFleche by kicking at her, trying to bite her
and by pulling a clump of hair from the officer's head.
5. Oxford Police Officer George Vranos was dispatched to the
accident scene where he subsequently placed Ms. Carlsen into his
police vehicle in order to transport her to the police station.
6. Ms. Carlsen was placed under arrest at the accident scene
for failing to submit to a police officer, assault and battery on
a police officer, operating under the influence of alcohol and
7. Ms. Carlsen was transported to the Oxford Police Station
by Officer Vranos.
8. After being brought into the station, Ms. Carlsen became
combative as Officer Vranos attempted to un-handcuff her. Ms.
Carlsen charged at Dispatcher Patrick Purcell who was assisting
9. Ms. Carlsen refused to cooperate with Officer Vranos as
they attempted to conduct booking procedures. Because of her
combative behavior, Ms. Carlsen was not fingerprinted or
10. With the assistance of Officer McCann, Officer
Vranos placed Ms. Carlsen in the police station's "female cell." While
attempting to remove the handcuffs, Ms. Carlsen continued to be
combative. She grabbed the antenna of a police radio and stretched
it from its original position. As a result, Ms. Carlsen was also
charged with the malicious destruction of property.
11. At 9:11 p.m., Officer LaFleche, accompanied by Officer
Vranos, entered the cell in which Ms. Carlsen was held and reread
her rights. Ms. Carlsen did not respond.
12. Ms. Carlsen is the daughter of the late Robert Carlsen,
a former Oxford police officer. For a period of twelve years,
Robert Carlsen and Triplett both served in the Oxford Police
13. At the suggestion of Sgt. Abrahamson, Robert Carlsen was
telephoned and subsequently arrived at the station. Robert Carlsen
asked of Officer LaFleche what had happened. Officer LaFleche
informed Robert Carlsen of the charges pending against his
daughter. He asked Officer LaFleche if there was anything she
could do for him. Robert Carlsen then asked Officer LaFleche to
call Chief Triplett. She did not respond. Dispatcher Purcell
subsequently telephoned Triplett at his home.
14. Robert Carlsen spoke with Triplett over the telephone.
15. Officer LaFleche subsequently spoke with Triplett using
a telephone in the sergeant's office. Among other things, Triplett
discussed with Officer LaFleche releasing Ms. Carlsen to her
father. There was no discussion, however, concerning whether Ms.
Carlsen had been bailed. Triplett told Officer LaFleche that if
Ms. Carlsen gave her a hard time upon her release, she was
authorized to place Ms. Carlsen back in the cell.
16. At 12:10 a.m. on September 9, 1991, Ms. Carlsen was
released from the cell to her father. Upon leaving the station Ms.
Carlsen called Officer LaFleche names and made profane gestures.
17. During the evening of September 8, 1991, a bail
commissioner was never contacted by Police Department with regard
to Ms. Carlsen's arrest. Ms. Carlsen was, therefore, released by
the Oxford Police Department without a bail commissioner being
contacted or bail being set.
18. Subsequent to Ms. Carlsen's release, Officer LaFleche
left the original paperwork concerning Ms. Carlsen's arrest on
19. Triplett delivered the application for criminal complaint
concerning Ms. Carlsen to Dudley District Court on Friday,
September 13, 1991.
20. A magistrate's hearing concerning the charges against Ms.
Carlsen was conducted at the Dudley District Court on October 16,
21. Ms. Carlsen's case was finally disposed of on March 19,
1992 when the three traffic violations with which she had been
charged (including Operating Under the Influence of alcohol) were
continued for one year without a finding and the assault and
battery on a police officer charge was dismissed. According to the
Application for Complaint, on October 16, 1991, the malicious
destruction of property and disorderly conduct charges were
dismissed. (Exhibit 61).
22. Triplett and Robert Carlsen had not previously been and
were not at times relevant to the arrest of Ms. Carlsen friendly
with each other.
23. Triplett did not make a written disclosure to his
appointing authority regarding his involvement in events following
the arrest of Ms. Carlsen.
The Petitioner alleges that "[b]y directing Laurie Carlsen's
release from police arrest without a bail hearing first being held,
and by delaying the initiation of a criminal complaint against
Laurie Carlsen so that her father would have an opportunity to
persuade the arresting officer to drop the charges, Triplett
knowingly, or with reason to know, used or attempted to use his
office as chief of police to secure for Laurie Carlsen an
unwarranted privilege or exemption of substantial value which was
not properly available to similarly situated individuals." In
support of its allegation that Triplett thereby violated s.23(b)(2)
the Petitioner further alleges that "[f]ollowing Laurie Carlsen's
arrest and release, Robert Carlsen requested that Triplett refrain
from seeking a criminal complaint against his daughter until he had
the opportunity to persuade LaFleche not to pursue charges." The
Petitioner also alleges that "Triplett agreed, and held up the
Laurie Carlsen criminal complaint application for two weeks.
During this period, Robert Carlsen unsuccessfully tried to convince
LaFleche to drop the criminal charges."
With regard to s.23(b)(3), the Petitioner alleges that "[b]y
directing Laurie Carlsen's release from police arrest without a
bail hearing first being held, and by delaying the initiation of a
criminal complaint against Laurie Carlsen so that her father would
have an opportunity to persuade the arresting officer to drop the
charges, Triplett knowingly, or with reason to know, acted in a
manner which would cause a reasonable person to conclude that he
can be improperly influenced and that Robert and Laurie Carlsen can
unduly enjoy his official favor as police chief." In support of
its allegation, the Petitioner alleges that "Robert Carlsen and
Triplett were friendly, and served together on the Oxford Police
Department for 12 years." According to the Petitioner, "Triplett
made no written disclosure to the Board of Selectmen detailing his
delay of the Laurie Carlsen complaint application, or his release
of Laurie Carlsen from police arrest."
As a preliminary matter, we must decide whether, at the
relevant time, Triplett was a municipal employee subject to
G.L. c. 268A. In his Answer, the Respondent admitted that he is
the chief of police, but he denied, without explanation, that he is
a municipal employee. We conclude that at the time relevant to the
allegations in question here, the Respondent was a municipal
employee who was subject to the conflict of interest law.
A. Section 23(b)(2)
Section 23(b)(2), in relevant part, provides that "No current
officer or employee of a . . . municipal agency shall knowingly or
with reason to know: . . . (2) use or attempt to use his official
position to secure for himself or others unwarranted privileges
which are of substantial value and which are not properly available
to similarly situated individuals."
We find that the Petitioner has failed to prove by a
preponderance of the evidence that Triplett violated s.23(b)(2).
The record is devoid of direct evidence that Triplett knew or had
reason to know that Ms. Carlsen had not been bailed prior to her
release during the early morning of September 9, 1991.
Furthermore, we cannot reasonably infer such a finding based on the
circumstantial evidence in the record. As to the allegation that
Triplett used his position to delay the initiation of a criminal
complaint against Laurie Carlsen so that her father would have an
opportunity to persuade the arresting officer to drop the charges,
the Petitioner has relied heavily on the deposition of Robert
Carlsen. After reviewing the deposition transcript, we
decline to credit Robert Carlsen's deposition on this point.
Moreover, the record does not contain sufficient other evidence of
Triplett's use of his position to secure for Laurie Carlsen an
unwarranted privilege or exemption of substantial value. We
therefore find that the Petitioner has failed to prove by a
preponderance of the evidence that a violation of s.23(b)(2)
B. Section 23(b)(3)
Section 23(b)(3) of the conflict of interest law provides that
[n]o current officer or employee of a state, county or
municipal agency shall knowingly, or with reason to know:
(3) act in a manner which would cause a reasonable person,
having 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 any party. It shall be
unreasonable to so conclude if such officer or employee has
disclosed in writing to his appointing authority or, if no
appointing authority exists, discloses in a manner which is
public in nature, the facts which would otherwise lead to such
We find that the Petitioner has failed to prove by a
preponderance of the evidence that Triplett and Robert Carlsen were
friendly as alleged. Moreover, we find no other basis for
concluding that Triplett acted in a manner which would cause a
reasonable person to conclude that he could be improperly
influenced or that Robert and Laurie Carlsen could unduly enjoy his
favor in the performance of his official duties. Accordingly, we
find that the Petitioner has not proven by a preponderance of the
evidence that Triplett acted in a manner violative of s.23(b)(3).
After weighing the evidence, we conclude that the Petitioner
has not proven, by a preponderance of the evidence, that Triplett
violated G.L. c. 268A, s.s.23(b)(2) and 23(b)(3) by directing that
Laurie Carlsen be released from police arrest without a bail
hearing first being held, and by delaying the initiation of a
criminal complaint against her.
DATE ISSUED: September 12, 1996
 This Amended Decision and Order supersedes a previous
Decision and Order.
 The OTSC contained a total of ten counts alleging various
violations of s.s.23(b)(2) and (b)(3). In its Decision and Order
dated March 27, 1996, the Commission allowed a joint motion of the
parties requesting that it: (1) resolve charges 2, 6 and 8 by
authorizing the Commission's Executive Director to execute a
Disposition Agreement; (2) dismiss charges 1, 3, 4, 5 and 7; and
(3) continue the adjudicatory proceeding as to charges 9 and 10
(concerning the Laurie Carlsen incident). Accordingly charges 1,
3, 4, 5 and 7 were dismissed. The Commission's Executive Director
executed a Disposition Agreement in relation to charges 2, 6 and 8
by which the Respondent agreed to pay to the Commission the sum of
two thousand dollars ($2000) as a civil penalty for his course of
conduct in violating G.L. c. 268A, s.23(b)(3).
 Commissioner Burnes was the duly designated presiding
officer in this proceeding. See G.L. c. 268B, s.4(e).
 Oxford Selectman Herbert Rhinehart submitted a Statement
for the Record pursuant to 930 CMR 1.01(8) on April 29, 1995. That
statement was subsequently amended on several occasions and became
part of the record in this case.
 LaFleche now uses the name Carol Knapp.
 There was no direct evidence to contradict Triplett's
testimony that no discussion about bail occurred.
 We credit the testimony of Triplett, Fleming and Black.
 We credit the testimony of Triplett and Saad.
 The Petitioner and the Respondent stipulated to this
 Municipal employee is defined, in relevant part, as a
person performing services for or holding an office, position,
employment or membership in a municipal agency, whether by
election, appointment, contract of hire or engagement, whether
serving with or without compensation, on a full, regular, part-
time, intermittent, or consultant basis. . . G.L. c. 268A, s.1(g).
 With respect to the Respondent's limitations defense, the
Petitioner has met its burden under the Commission's statute of
limitation regulation, 930 CMR 1.02(10), in that it has filed a
affidavit from the Enforcement Division Investigator responsible
for the case indicating no complaint relating to this alleged
violation was received more than three years before the OTSC
issued. (Exhibit 1). An affidavit from Triplett's public agency
employer was also submitted during the hearing indicating that the
agency was not aware of any complaint more than three years prior
to the issuance of the OTSC. (Exhibit 2). Pursuant to the above-
cited regulation, the Respondent may only prevail on a statute of
limitations defense if he can show that more than three years
before the issuance of the OTSC, the relevant events were a matter
of general knowledge in the community or the subject of a complaint
filed with the Ethics Commission, the Attorney General, the
District Attorney or the respondent's public agency (in the case of
a s.23 violation). We find that Respondent has failed to
meet this burden under the regulation and the statute of
limitations defense therefore must fail.
 The Petitioner must prove by a preponderance of the
evidence that the Respondent violated the conflict of interest law.
See 930 CMR 1.01(9)(m)2; Craven v. State Ethics Commission, 390
Mass. 191, 200 (1983). The Respondent's assertion that the
Petitioner should be held to a standard of "clear and convincing
proof" is incorrect.
 To the contrary, the record suggests finding that a
certain degree of animosity had developed between Triplett and
End of Decision