In the Matter of Jean- Marie Smith

June 15, 2010

Disposition Agreement

The State Ethics Commission and Jean-Marie Smith ("Smith") 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 July 17, 2009, 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 Smith. On November 20, 2009, the Commission concluded its inquiry and found reasonable cause to believe that Smith violated G.L. c. 268A, § 23(b)(2).

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

Findings of Fact

1. Smith has been employed by the Town of Hanson Council on Aging for 13 years. At all relevant times, Smith was the Hanson Council on Aging Director of Elder Affairs.

2. The Town of Hanson operates the Hanson Senior Center (the "Center").

3. The Center provides a variety of services to seniors, including a day program of social activities, as well as assistance with scheduling medical visits, arranging for housing, and other support services. The Center's clients are town residents aged 55 or older.

4. An 84 year old man (the "Client") was one of the Center's clients. He was a regular, daily visitor to the Center, dating back to before Smith started working there. The Center maintained a file on the Client that outreach workers could access that included emergency contacts, medications, as well as financial information.

5. The Client's file contained contact information for his adult daughter, who lived in western Massachusetts. It was Smith's understanding that the Client was estranged from the daughter.

6. Smith, in her capacity as the Director of Elder Affairs, would occasionally see the Client at the Center and would check on him to see if he was eating properly and taking care of himself.

7. In June 2007, Smith observed that the Client's appearance and behavior had deteriorated significantly. She sent him a letter on Center letterhead about his unruly conduct at the Center.

8. Some time later in June 2007, Smith, accompanied by her boyfriend, visited the Client at his residence. Smith determined that the Client needed to be hospitalized and she called an ambulance. The Client was then hospitalized.

9. While the Client was in the hospital, Smith solicited advice from a town official about whether she could act as the Client's private agent concerning financial matters. The town official consulted with town counsel, who advised that Smith could not act as the Client's private agent. The town official communicated that advice to Smith.

10. In July 2007, upon the Client's hospital discharge, Smith moved the Client into a nursing home in a nearby town, without first contacting the Client's daughter or informing any town official of her actions. Smith arranged to have her boyfriend sign the paperwork required to admit the Client into the nursing home.

11. At about the same time, and notwithstanding the advice she had received, Smith offered to assist the Client with his financial affairs. The Client accepted Smith's offer.

12. Thereafter, on July 10, 2007, Smith and the Client changed the mailing address of the Client's savings account at a local bank to Smith's home address. On July 11, 2007, Smith and the Client withdrew the entire account balance of $17,155 in cash from the Client's savings account, but did not close the account. Smith and the Client used $8,455 to pre-pay the Client's burial services at a funeral home. Smith and the Client also opened and deposited $1,500 into a separate burial account, and listed the Client and Smith's boyfriend as co-owners on that account. Smith brought the remaining cash, approximately $7,000, to her home.

13. In August 2007, Smith arranged to have her boyfriend apply as the Client's representative for MassHealth [1] benefits for the Client. MassHealth approved the application. The Client's costs for staying at the nursing home were covered in part by MassHealth, as well as by the Client's Social Security and Veterans Administration ("VA") benefits. The Client's VA benefits were direct-deposited into his savings account.

14. Thereafter, a Center employee contacted the Client's daughter to inform her that Smith had moved the Client to a nursing home. In response, the Client's daughter phoned Smith, who confirmed to the Client's daughter that she had moved the Client to a nursing home in a nearby town. Smith did not tell the Client's daughter that she had taken control over the Client's financial matters.

15. In April 2008, Smith arranged to have herself added as a co-owner of the Client's savings account.

16. From February 2008 through May 2009, Smith, sometimes accompanied by the Client, made several additional cash withdrawals, totaling $10,548, of the Client's VA income from the Client's savings account.

17. According to bank records, Smith withdrew a total of $27,703 from the Client's savings account between July 2007 and May 2009. According to Smith, she did not use any of the Client's money for herself or her boyfriend, but instead used the funds to pay for the Client's expenses. There are, however, no receipts or other records documenting the expenditure of approximately $2,500 of the withdrawn funds. As to the $2,500 for which there is no documentation of the purpose for which it was spent, Smith was only able to orally justify expenditures for approximately $1,000. If Smith's oral representations are to be accepted, then $1,500 is still unaccounted for.

18. The Client died May 4, 2009. At the time, prepayments totaling $1,566 remained in the Client's nursing home account. Smith arranged to have the nursing home issue a check in that amount to the funeral home for the purchase of a cemetery monument for the Client. The cost of the cemetery monument was $1,000. At Smith's direction, the funeral home used the $566 in excess funds remaining after the purchase of the monument to make a donation in the Client's name to the Hanson Council on Aging.

19. Smith arranged to have the Client's daughter receive the remaining funds in the Client's savings account.

Conclusions of Law

20. As the Hanson Director of Elder Affairs, Smith was at all times relevant to this matter a municipal employee as defined in G.L. c. 268A, § 1.

Section 23(b)(2)

21. Section 23(b)(2) of G.L. c. 268A prohibits a municipal 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 which are of substantial value and which are not properly available to similarly situated individuals. [2]

22. The ability to access and expend the Client's funds was a benefit, and as such a privilege.

23. Through her contacts with the Client as Director of Elder Affairs, Smith obtained the Client's trust and reliance on her advice, which in turn resulted in the Client's willingness to allow Smith to act as his financial agent. In other words, Smith used her official position as Director of Elder Affairs to access and spend the Client's funds. [3]

24. Smith's ability to access and spend the Client's funds was an unwarranted privilege because there was no oversight of her expenditure of the Client's funds nor did Smith keep adequate records documenting such expenditures. It was also unwarranted because it was against town counsel's advice.

25. This privilege was of substantial value because it involved access to and the expenditure of $50 or more.

26. This privilege was not properly available to similarly situated individuals.

27. Therefore, by accessing and spending the Client's funds without oversight and without keeping adequate records documenting such expenditures, all as described above, Smith knowingly or with reason to know used her official position to obtain an unwarranted privilege of substantial value not properly available to other similarly situated individuals in violation of § 23(b)(2).

28. In imposing a civil penalty, the Commission recognizes that Smith asserts that her efforts were solely intended to assist the Client, and she asserts that she used none of the Client's funds for anyone other than the Client. The facts described above, however, raise troubling concerns. Smith's access to the Client's funds was secured through Smith's fiduciary relationship with the Client. Smith was told not to become the Client's financial agent, yet she did so anyway. Smith actively concealed her involvement by using her boyfriend's name on various financial documents. Smith did not inform the Client's daughter that Smith had become the Client's financial agent. Smith spent the Client's funds without oversight and without keeping adequate records documenting expenditures. Finally, Smith never disclosed her private involvement with the Client to town officials. Based on the totality of these facts, a civil penalty is warranted.

In view of the foregoing violations of G.L. c. 268A by Smith, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, based on the following terms and conditions agreed to by Smith:

  • that Smith pay to the Commission the sum of $2,000 as a civil penalty for violating G.L. c. 268A, § 23(b)(2); and

  • that Smith 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// 4/30/10 //signed// 6/15/10

Jean-Marie Smith Date Karen L. Nober Date
Executive Director

I, Jean-Marie Smith, 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 $2,000 to the State Ethics Commission.

//signed// 4/30/10

Jean-Marie Smith Date



[1] The MassHealth program provides comprehensive health insurance - or help in paying for private health insurance - to more than one million Massachusetts children, families, seniors, and people with disabilities.

[2] 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.

[3] The Client entrusted his finances and care to Smith not because of an independent friendship - they had a limited relationship prior to June 2007 - but because of Smith's position as Elder Affairs director.