In The Matter of Lincoln Smith
August 18, 2008
Decision And Order

Appearances: Karen Beth Gray, Esquire

Counsel for Petitioner

Michael J. Traft, Esquire

Counsel for Respondent

Commissioners: Daher, Ch., Kane, Kempthorne, Veator [1]/

Presiding Officer: Commissioner Matthew N. Kane

I. BACKGROUND & PROCEDURAL HISTORY

On May 23, 2007, Petitioner initiated these proceedings by issuing an Order to Show Cause ("OTSC") under the Commission's Rules of Practice and Procedure. [2] / The OTSC alleged that Respondent Lincoln Smith ("Smith"), while the Boston City Council's Assistant Research Director, violated G.L. c. 268A, section 23(b)(2) [3] / when he, knowingly or with reason to know, directly or indirectly invoked his City Council position and the powers associated with the City Council during a discussion with valet parking employees concerning a claim for damage done to his car at Brigham and Women's Hospital ("Hospital"), in order to secure for himself an unwarranted privilege of substantial value that was not properly available to similarly situated individuals.

Smith filed an Answer on June 13, 2007. In his Answer, Smith admitted a number of the factual allegations in the OTSC, but otherwise denied that he violated section 23(b)(2).

Subsequent to a pre-hearing conference on June 29, 2007, Smith filed a Motion for Decision on the Pleadings. After hearing oral argument on July 30, 2007, the Presiding Officer referred the Motion to the Commission for its review. [4] / The Commission thereafter denied the Motion. [5] /

An evidentiary hearing was held on November 7, 2007 and November 20, 2007. [6] / At the hearing, the parties made opening statements and introduced evidence through witnesses and exhibits. At the conclusion of Petitioner's case and then again at the close of all the evidence, Smith moved for a directed verdict. The Presiding Officer denied that Motion each time. [7] /

Both parties filed briefs: [8] / Petitioner filed on February 4, 2008; and Respondent filed on February 6, 2008. The parties presented closing arguments to the Commission on February 13, 2008. [9] /

The Commission began its deliberations in executive session on this matter on February 13, 2008. [10] / In rendering this Decision and Order, each undersigned member of the Commission has considered the testimony, the evidence in the public record, and the arguments of the parties.

II. FINDINGS OF FACT

Smith and the City Council

1. Lincoln Smith ("Smith") is the Boston City Council Assistant Research Director, a position which he has held since 1996. In that position, he is a member of the City Council's central staff reporting directly to Ann Hess Braga ("Hess Braga") on a day-to-day basis and to the City Council overall.

2. Pursuant to his official job description, Smith is responsible for the following: (a) researching issues of interest to Councilors, including gathering information from other municipalities; (b) drafting legislation and reports resulting from research undertaken for Councilors or Council committees; (c) assisting the Research Director in coordinating all research projects undertaken at the request of Councilors or Council committees; (d) recruiting and training research interns from local colleges and universities; (e) providing staff support for assigned committees, scheduling committee hearings, attending hearings and preparing notes and committee reports, drafting or revising legislation at the request of committee members; and (f) performing other duties as assigned by the Council or Staff Director.

3. In his position, Smith also has involvement with constituents and interactions with City Councilors. Hess Braga testified, for example, that Assistant Research Directors provide the additional resource for professional support for the City Councilors in research and issue tracking. She further stated that they may work with particular Councilors on a close basis on areas of their interest and will alert the City Councilor to issues they may be unaware of which they might want to review or have a hearing on. According to Paul Walkowski, [11] / the responsibilities of a central staff member, such as an Assistant Research Director, with respect to issues that come before the City Council are "not de minimis."

4. In November 2005, Smith was the back-up to the liaison [12] / to the Committee on Planning and Economic Development ("Planning Committee") [13] / which had oversight over hospital growth and expansion. [14] / Among other responsibilities, the Planning Committee "shall exercise exclusive oversight with respect to all . . . medical . . . and large scale residential development and building within the city until said project has been awarded a certificate of occupancy." [15] /


5. The liaison acts in an administrative capacity to make sure that the hearings are scheduled, people are notified and notices are sent. When serving as a liaison, an Assistant Research Director is responsible for putting together a list of attendees for the Committee Chair or the sponsor to review, drafting letters, hearing notices, researching the topic at issue and writing questions. They would also "staff" the hearing itself and follow-up with Committee reports.

6. In November 2005, Smith was working only part-time after having returned from a long recovery after a serious accident.

Hospital Parking and Development Issues

7. Brigham and Women's Hospital ("Hospital") is located at 75 Francis Street in Boston. The Hospital works with the City on a myriad of issues, including institutional master planning, zoning, permitting and licensing. Issues with respect to the development of the Hospital would be under the purview of the Planning Committee which in November 2005, was chaired by Councilor James Kelly. If a plan came in that affected some other City Councilor's district, Councilor Kelly's normal procedure would be to "shelve it" and refer it to the district's City Councilor. The Hospital was not in Councilor Kelly's district.

8. An institutional master plan for the Hospital was submitted to the City Council in 2004. The institutional master plan was part of a series of documents that the developer and architect submitted to the City Council as well as other agencies outlining their plans for building, traffic and environmental issues. The Planning Committee did not take any action on the Hospital's plan in 2004 or 2005.

9. There are numerous parking issues at the Hospital because it is a very large hospital in a very small area with local residents right next door. Among other things, there are not enough parking spaces in the area for the Hospital employees as a result of the construction of a new building across the street from the main Hospital building. The neighborhood is concerned with cars parking in the streets, traffic in the streets, traffic violations, noise and construction.

10. Smith was personally aware of parking issues in the area because among other things, his primary care physician is at the Hospital, his mother is a Hospital patient and his close friend with whom he lunches monthly, lives right across the street. He also knew from standing on the tarmac at the Hospital that there was major construction going on and it was a congested area with traffic back-ups.


VPNE and its Contract with the Hospital

11. VPNE Parking Solutions ("VPNE") is a parking transportation company that provides parking management and valet parking. It has a $4 million contract with the Hospital to provide parking garage management and valet parking. VPNE has 130 of its employees working at the Hospital, some 35 to 40 as valets.

12. David Nolan ("Nolan") has worked for VPNE for approximately eleven years. In November 2005, he was the Hospital's Account Manager and Vice-President. As Account Manager, he oversaw operations, staffing, hiring, claims and customer service as well as general operations, administration and oversight. Nolan has handled hundreds of damage claims as part of his duties and responsibilities at VPNE.

13. In November 2005, Christopher Sargent ("Sargent") was VPNE's Staffing Manager at the Hospital. As Staffing Manager, he was responsible for hiring and training employees, taking care of the payroll, the billing hours and general managerial duties overseeing the personnel, including the valets, attendants and the cashiers. On November 17, 2005, VPNE did not have an official claims manager for the Hospital.

14. To use the valet service at the Hospital, customers drive into the valet lane at the Hospital's main entrance. The valet, manager or attendant gives them a valet ticket and then the person proceeds into the Hospital. VPNE then takes the car down to a garage and parks it. The valet marks the ticket with the make, model, color, location and license plate and whether there is any damage to the car. VPNE trains its employees to walk around the car looking for damage and then record any damage on the ticket. When the person is leaving, the car is then returned to them. VPNE handles valet parking for over 500 cars a day at the Hospital's main entrance.

15. There is a mitigation agreement between Partners Healthcare and Roxbury Tenants of Harvard Neighborhood ("Mitigation Agreement").

16. In the Mitigation Agreement, the Hospital agreed to hold VPNE, as its contractor, to the standards of speeding, driving, littering and noise in the neighborhood. As Staffing Manager, it was Sargent's responsibility to make sure that the people who worked for VPNE followed the Mitigation Agreement "to a T." A sheet is handed out to every new employee of VPNE and they are trained to follow all of the eight points therein. [16] / They also sign to indicate that they have seen and know the Mitigation Agreement. As part of his job, Sargent prepared monthly reports for the Hospital outlining each of the eight points, noting any issues that might be in conflict and how VPNE had rectified them.

17. Sargent and Nolan believed that VPNE's contract with the Hospital was dependent on its compliance with the Mitigation Agreement, as well as customer service and claims management.

VPNE's Claims Procedure

18. From time to time, vehicles may be damaged at the Hospital garage. The standard operating procedure to deal with claims of damage is to meet with the person making the claim and fill out a report. VPNE checks all the damage on the vehicle and meets with any of the supervisors who might be aware of what might have happened. They investigate the accident and come to a decision as to whether they accept or deny the claim. They may also involve security from the Hospital.

19. If it is something that they saw happen or know happened, VPNE has company loaner cars that it gives to a person while their car is being repaired. VPNE has an agreement with a body shop for repairs. It can hire a third party appraiser to look at the car. The individual can also bring it to his own body shop and can bring in his insurance company.

20. The standard operating procedure would be the same if VPNE did not believe that the damage was caused while the car was in its possession. VPNE would tell the person that they would follow-up, look into it and then get in touch with them to tell them what their ultimate decision was. If VPNE declines responsibility, they would recommend that the individual speak with their insurance company.

21. If Nolan believed that VPNE caused the damage, he had the responsibility and the authority to resolve and accept liability at that time, right there on the scene. He had 100% discretion either way. Nolan could resolve complaints on his own if he was certain that VPNE was responsible. They could pay a claim without oversight. VPNE, however, does not let its employees deny a claim without looking at it and making sure that's what it wants to do.

22. The factors involved in deciding whether to settle or pay a damage claim include looking at the damage itself and why or why not VPNE thinks it may have happened. VPNE does an analysis on a scale of 1 to 10 whether they think it happened or not and whether it might be in the best interest of the Hospital to pay something.

23. VPNE has paid many times on a claim when Nolan did not believe that VPNE was liable because the accounts, the clients and the contracts are much more important than a single claim here or there.

Smith's Visit to the Hospital on November 17, 2005

24. Smith purchased his car, a blue 2003 Nissan Maxima, in mid-July 2005. His car was garaged in Weymouth at the home of his mother, June P. Murphy ("Murphy").

25. On November 17, 2005, Smith went to his mother's house, picked up his car there and drove his mother to the Hospital for a test. When they arrived at the Hospital, there were a number of valets standing there. Smith and Murphy got out of the car and they gave Smith a ticket and took the car. After his mother's appointment concluded, Smith went down to the Hospital lobby, paid the valet bill and he and his mother sat down in the lobby window and waited for them to retrieve the car. When they saw the car come up the driveway being driven by a valet, they walked out of the Hospital.

26. When the valet returned his car, Smith pointed out that there was a long scratch from the front side door to the back door on the passenger side. Smith asserted that the damage happened at the Hospital garage. When the valet stated that the damage did not happen at the garage, Smith asked to see a supervisor.

27. Around 1:00 p.m., Sargent received a telephone call from the 75 Francis Street supervisor saying that there was a customer with a damage claim and could he come down and take the paperwork. When Sargent was heading down, he ran into Nolan who decided to go down with him. Before speaking to Smith, Sargent did not talk to any of the VPNE employees involved in transporting the car and he had not looked at the intake ticket. [17] /

28. Sargent and Nolan went down to the Hospital's main entrance where they introduced themselves to a gentleman who introduced himself as "Lincoln Smith." Smith shook both of their hands. They had never met Smith before.

29. They asked Smith what the situation was. Smith showed Sargent and Nolan a long scratch on the passenger side of his car that went back through his rear window molding. Smith told them it had happened since he parked in the lot at the Hospital.

30. Sargent and Nolan looked at the scratch and noticed that where it went through the rear molding, there appeared to be rust. They told Smith that there appeared to be rust in the scratch. They also told him repeatedly to call his insurance company.

31. Smith became very angry at the suggestion that the scratch was pre-existing. He asked Sargent how he could accuse him of lying. Sargent had not accused Smith of lying, but he did not want to accept or deny responsibility at that moment without further information. Both Nolan and Sargent stated that they were not going to take any action that day and that Smith should contact his insurance company, have an appraiser look at the car and then send them the information to review.

32. In view of the dispute, Smith said that he would like to have a police officer on the scene to do a report. Nolan loaned Smith his cell phone which he used to contact the Boston Police Department. During the call, Smith referenced a particular officer by name.

33. After he hung up the phone, Smith told both Nolan and Sargent that he was "on the City Council," that he was "cognizant" of the parking issues in the area and of the Hospital's growth and construction in the area and its "goal to expand in the area." He also told them that he knew that the Hospital needed "a lot of permits for it and [he] kn[ew] that a lot of that goes through the City." [18] /

34. A Boston Police Officer subsequently came out and filled out a report. A report was also filled out by a security officer at the Hospital. Nolan left the area when the Boston Police Officer came. He then returned to the scene with another VPNE employee, Hal Waterman ("Waterman"). Although Nolan did not want to get anyone else involved in the matter, he asked Waterman to join him because "this has been a little interesting and I want someone to kind of be there, just kind of hear this."



35. After the Boston Police Officer took the report, Smith asked Nolan who owned VPNE. He responded that the owner was Kevin Leary. They had some conversation about whether Smith knew Leary and whether Leary was from Dedham. Smith told Nolan that "well, maybe I don't know [Leary], but I will. . . . [Y]our permits have to come through my desk in my office. I will see his name again." When Nolan asked Smith, "Is that a threat?" Smith responded, "no, I'm just saying that I will see his name again, any permits from your company, your parking company, have to come through my office. I will see his name." [19] /

36. These statements by Smith that he was on the City Council, cognizant of parking issues and aware of permitting issues, caused both Nolan and Sargent to believe that Smith was a City Councilor and to be concerned about what he could do to VPNE and its business with the Hospital. The fact that Smith said he was on the City Council affected Nolan's behavior, causing him to "wal[k] on eggshells" and a "red flag" to go up. His statements made a difference to Nolan "because [they] have a contract with the [H]ospital" and his "number one concern" was that underlying contract. [20] /



37. Nolan believed that Smith wanted it taken care of that day, that he did not want to leave until it was taken care of, and that he did not want to call his insurance company.

38. Sargent filled out VPNE's standard claim report. He took down the license plate, the model and make of the car. He used information that he received from Smith to fill out the report. He asked Smith for an address and a telephone number. Smith provided him with his home telephone number, his address and post office box. The VPNE claim form had two telephone numbers written on it. The number written at the bottom is Smith's private inside line at Boston City Hall.

39. Smith never claimed that he would take any specific action with respect to permits for the Hospital and similar things through the City Council.

40. Nolan believed that Smith was trying to get VPNE to accept liability for the scratch on his car based on his City Council position and by threatening him with what could happen if they did not assume such liability.

41. Nolan did not change his position about what he was going to do in response to Smith's comments.

42. Both Nolan and Sargent provided Smith with copies of their business cards on November 17, 2005. Smith did not provide a copy of his business card to either Nolan or Sargent. [21] /

43. The Hospital has video cameras that would show any car that came up and was dropped off for valet service at some point. Smith asked to see the videotapes. Sargent told him "[n]o, that's not our policy."

44. The valet ticket that was on Smith's car, in the area where it says "damage," says "no" written on it. [22] /


45. After leaving Smith, Nolan went back into his office in the Hospital and "googled" Smith and the Boston City Council. He got to the City Council page which listed Smith's name, but his name was not listed as a Councilman. At some point, they heard that Smith was not on the City Council, but rather an employee of the City Council.

46. That same day, Nolan also wrote an e-mail to Leary who was the COO of VPNE and Leary's son, explaining what had happened. In his e-mail recounting the interaction with Smith he stated: "After [Smith] got off the phone he told me that he was on the Boston City Council and that he was 'cognizant of the parking issues' in the area and of the [Hospital's] 'goal to expand in the area.'" Nolan wrote that Smith said "he would eventually [know Leary] because VPNE would have to go through his office to get any permits for valet parking." Nolan further wrote that he asked Smith if that was a threat to which he responded "no." [23] /

47. Sargent and Waterman also prepared e-mails to Leary that day. Sargent went back to his office and wrote down the whole incident, typed it out and e-mailed it to Nolan that afternoon and the next day to Leary. In his e-mail, Sargent stated that Smith "made a point of informing us that he is on the Boston City Council." He went on to state: "[I]n what I feel was a veiled threat to hinder the services of VPNE and the [Hospital], Mr. Smith also stated that he was aware of the neighborhood parking issues and the construction activity that face the [Hospital]."

48. The e-mails written by Nolan, Sargent and Waterman were forwarded to Hess Braga by Leary. Leary also called Michael Flaherty, the City Council President.

Settlement of Smith's Damage Claim

49. The next day, Smith brought his car to a licensed appraiser at the dealership where he had purchased it. The damage was estimated at approximately $2,800.

50. Smith received a call at home from Nick Constanza ("Constanza"), a VPNE Claims Manager, who asked him to fax the appraisal to him along with the police incident report which he did. VPNE received an estimate done at a body shop for the damage to Smith's car. Costanza told Smith that VPNE was not going to be sending him the $2,800 he requested.

51. Leary, VPNE's President, contacted Smith at his home and left a voice mail message. In that message, Leary told Smith that they had four pictures, two of which as they discussed, appeared to him to have rust on the chrome molding and he saw nothing else that was conclusive either way. Leary also stated that he did take Smith's advice and "followed up with all of [his] team about how to respond to these situations." In particular, he noted that they were "retraining everyone . . . in the company, to make sure that when something is brought to their attention, as we discussed, . . . it will be received well, and that people will be made comfortable with bringing it in, and the front people are not defensive."

52. Smith contacted his insurance agent who filed a claim through Arabella Mutual Insurance ("Arabella") for the damage to his car. VPNE was subsequently informed that it was going to be brought to court. [24] /

53. After a settlement offer from counsel for Arabella, the claim was settled on the day of trial for $1,000. Nolan decided to accept the offer of 50% as "good business" because anything could happen at a court hearing.

III. DECISION

Section (23)(b)(2) of G.L. c. 268A is violated if a municipal employee "knowingly, or with reason to know . . . use[s] or attempt[s] to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals." In adjudicatory proceedings before the Commission, the burden of proof is on Petitioner, which must prove its case by a preponderance of the evidence. [25] / The weight to be attached to any evidence rests in the sound discretion of the Commission. [26] /

Thus, in order to establish a violation of G.L. c. 268A, section 23(b)(2), Petitioner must prove by a preponderance of the evidence that: (1) Smith was a municipal employee ; (2) who attempted [27] / to use his official position; (3) to secure an unwarranted privilege or exemption [28] / for himself or others; (4) which was of substantial value; (5) which was not properly available to similarly situated individuals; and (6) that Smith did so, knowingly or with reason to know. The following is a discussion of each of these elements.

A. Municipal Employee

The OTSC alleges that as the Boston City Council Assistant Research Director, Smith was a municipal employee within the meaning of G.L. c. 268A. Smith admits that he holds that position and that, as such, he is a municipal employee [29] / within the meaning of the conflict of interest law.

B. Attempted to Use His Official Position

The OTSC alleges that Smith attempted to use his official position by directly or indirectly invoking his City Council position and the powers associated with the City Council during his discussions with VPNE regarding the damage to his car. Smith denies that he attempted to use any position and states that he had no power or authority over the Hospital and/or VPNE. The issue therefore, is whether Petitioner has proven by a preponderance of the evidence that Smith attempted to use his official position.

The term "use" is not defined in the conflict of interest law. Accordingly, the word must be given its ordinary meaning and approved usage. See Gateley's Case, 415 Mass. 397, 399 (1993); G.L. c. 4, section 6, Third (words and phrases construed according to "common and approved usage of the language"). Use has been defined as "to use, employ." Websters Third New International Dictionary 2523 (1993). The interpretation of the use of official position element of a section 23(b)(2) violation must also take into account that the purpose of the conflict of interest law "was as much to prevent giving the appearance of conflict as to suppress all tendency to wrongdoing." Selectmen of Avon v. Linder, 352 Mass. 581, 583 (1967). Accordingly, the Commission has interpreted the statute "as a prophylactic measure." Scaccia v. State Ethics Commission, 431 Mass. 351, 359 (2000).

Applying these legal principles to this case, we find that Petitioner has proven by a preponderance of the evidence that Smith attempted to use his official position based on the testimony, which we credit, of the two VPNE employees, David Nolan and Christopher Sargent. [30] /


Nolan and Sargent's testimony makes clear that Smith invoked his employment relationship with the City Council. [31] / They testified that Smith made the following statements: (1) he was "on the Boston City Council"; (2) he was "cognizant" of the parking issues in the Hospital area and the growth plans, construction plans of the Hospital and the "goal to expand in the area"; (3) the Hospital would need "a lot of permits for it and [he] know[s] that a lot of that goes through the City"; and (4) that "your permits have to come through my desk in my office."

Nolan also testified that there was a second discussion about permits. He testified that when he and Smith were discussing Kevin Leary, the owner of VPNE, Smith said: "[W]ell, maybe I don't know him, but I will. . . . [Y]our permits have to come through my desk in my office. I will see his name again." When Nolan asked Smith "is that a threat?" Smith responded "[N]o, I'm just saying that I will see his name again, any permits from your company, your parking company, have to come through my office. I will see his name." [32] /

By making these statements, we find that Smith intended to convey the message that he had some power to influence the public business as it related to VPNE. In particular, he sought to make clear that he had some official role concerning City permitting as it related to the Hospital and VPNE.

The message was effective; Smith's statements caused Nolan and Sargent to believe that he was a City Councilor and to be concerned about what he could do to VPNE and its business with the Hospital. Sargent testified credibly that he was concerned by Smith's statements because "I don't know a whole lot about the Boston City Council. But I do know this, . . . it sounds to me like the Boston City Council could have some effect on the business. It sounds to me like a Boston City Councilman could directly affect our business, if they were unhappy with something." Nolan similarly testified credibly that the fact that Smith said he was on the City Council affected his behavior, causing him to "wal[k] on eggshells" and a "red flag" to go up. Smith's statements made a difference to Nolan "because [they] have a contract with the [H]ospital" and Nolan's "number one concern" was that underlying $4 million contract.

Even though Smith was not actually a City Councilor, we find that in these circumstances, Smith's invocation of his employment relationship with the City Council by virtue of his position as its Assistant Research Director and member of its central staff, was a use of his official position. Smith's official job description [33] / demonstrates that his position had significant contact with, and responsibilities for, City Council work. For example, according to his official job description, as Assistant Research Director, he was responsible for among other things, researching issues of interest at the request of any City Councilor, drafting legislation and reports for them and providing staff support for assigned committees. In addition, his supervisor, Hess Braga, testified that Assistant Research Directors provide additional support for City Councilors in research and tracking issues and that they are involved with constituents and interactions with any City Councilor who may request and use their services as needed.

This conclusion is further supported by the timing of the comments made by Smith. Nolan and Sargent testified that, upon first meeting Smith, he introduced himself as only "Lincoln Smith." It was only after they had told him that they thought there was rust in the scratch, that they were not going to be accepting or denying liability that day and that they wanted him to contact an appraiser and his insurance company before they would make a decision, that Smith interjected his official position into the unrelated discussion concerning the damage to his car. It was at that time that he told them that he was on the City Council, that he was cognizant of the parking issues in the area and he knew about the Hospital's need for permits.

That Smith may have overstated his actual authority, implying that he had more power than he in fact had does not sway the analysis. His statements to the VPNE employees invoked and drew upon his influence and power which he had by virtue of his employment with the City Council and was therefore, a use of his official position. Moreover, as his official job description demonstrates, Smith did, in fact, have responsibility for the work of the City Council and access to City Councilors in a way that was significantly different than another person such as a constituent of a City Councilor. [34] / In this way, Smith's use of his official position was different from that situation, for example, when an individual asserts that they are a City Councilor when, in fact, they have no actual employment association or connection with that body.

To determine otherwise would place an inappropriate burden of inquiry on someone hearing such statements to undertake an independent analysis into the actual power of the person making such statements. In any event, this element of a section 23(b)(2) violation is satisfied if the municipal employee attempts to use his official position, even if he does not actually do so.

C. To Secure an Unwarranted Privilege For Himself or Others

Petitioner argues that the unwarranted privilege that Smith was seeking was to have VPNE assume liability at the scene for the damage to his car at a time when it was not sure that it had caused the damage as a result of its concern regarding the statements that he made. In contrast, Smith argues that he did not expect the matter to be resolved on that day, he did not ask or expect anything from VPNE and that he only wanted a report to file with his insurance company to protect himself because of the dispute as to the cause of the damage. He further argues that asking VPNE to take responsibility for the damage that it caused was not in any way "unwarranted." The issue therefore, is whether Petitioner has proven by a preponderance of the evidence that Smith was seeking to secure an unwarranted privilege for himself.

The conflict of interest law does not define either "unwarranted" or "privilege." Unwarranted is generally defined as "[h]aving no justification; groundless." The American Heritage Dictionary, Second College Edition 1327 (1991); Webster's Third New International Dictionary 2514 (1993) ("lacking adequate or official support: unjustified, unauthorized"); EC-COI-98-2. Previous Disposition Agreements approved by the Commission have found that the use of an official position to promote a personal or family interest is unwarranted for purposes of section 23(b)(2). See, e.g., In Re Foley, 2001 SEC 1008, 1010 (outreach worker for Council on Aging's implied endorsement of her son and daughter-in-law to an individual she was assisting in selling her home was "unwarranted because [she] should not hav[e] been using her official position to promote her own family's interests"); In Re Haluch, 2004 SEC 1165, 1166 ("public employees may not threaten to use their official position or powers to obtain an advantage for themselves in a private dispute").

Privilege is generally defined as "a special legal right, exemption or immunity granted to a person or class of persons; an exception to a duty." Black's Law Dictionary 1234 (8 th ed. 1999). See In Re Costa, 2001 SEC 1000, 1002 n.1 (privilege is "'[a] special advantage, immunity, permission, right or benefit granted to an individual, class or caste.'") quoting The American Heritage Dictionary ( Second College Ed.). See Craven v. State Ethics Commission, 390 Mass. 191, 202 (1983) (Supreme Judicial Court upheld Commission's determination that an award of government benefits based on applying pressure on state employees to abandon normal agency procedures to evaluate applicants and to award benefits because of concern for agency's budget violated section 23(d), the predecessor to section 23(b)(2)).


Applying these legal principles to this case, we find that Petitioner has proven by a preponderance of the evidence that Smith attempted to seek an unwarranted privilege for himself based on the testimony, which we credit, of Nolan and Sargent for the following reasons.

When Smith pointed out the damage to his car to Nolan and Sargent, they both told him that it looked like there was rust in the scratch which would mean that it had been there for a period of time. Nolan had discretion at the scene to accept a claim if he knew or saw what had happened. Both VPNE employees testified that in all other situations, pursuant to their standard operating procedure, they would take a report, review the information and then make a decision. They told Smith repeatedly that they would not resolve the claim on November 17 th because they wanted the rust looked at and that Smith should have an appraiser look at his car and that he should get in touch with his insurance company. Neither one of them made a determination that day whether or not VPNE should accept responsibility for the damage.

Nolan testified that he believed Smith wanted it taken care of that day, that he did not want to leave until it was taken care of and that he did not want to call his insurance company. He took Smith's statements to mean that Smith wanted VPNE to take care of it right then. Although Smith never expressly said that he was threatening Nolan or that he would take any specific action with respect to the Hospital, Nolan inferred and believed from Smith's statements that Smith wanted VPNE to accept responsibility because of his position and what could happen. Nolan never changed his position in response to Smith's comments.

This testimony supports the conclusion that Smith was seeking the unwarranted privilege of bypassing VPNE's standard operating procedure for claims and having VPNE accept responsibility based not on the facts, but rather out of its concern that Smith could, in his official capacity, somehow hurt either the Hospital or VPNE. Nolan had the discretion to accept responsibility at the scene if VPNE saw or knew what happened. There was no testimony that either Nolan or Sargent actually witnessed Smith's car being damaged or that they had any knowledge as to how it had been damaged. [35] / Their testimony is that they were called to the scene at Smith's request. At that time, Smith pointed out the damage to them. Based upon their inspection, they believed that they saw rust in a portion of the scratch, which would indicate that it was pre-existing damage and therefore, not the responsibility of VPNE. In keeping with their standard procedure, they asked him to contact his insurance company, have an appraiser look at the car and then send them the information to review.

We find Smith's argument that he could not have been seeking an unwarranted privilege because VPNE was, in fact, responsible for the damage to his car unpersuasive. We do not need to decide the issue as to the cause of the damage to resolve the question of whether he violated section 23(b)(2). Even if VPNE was responsible, Smith's attempt to get VPNE to accept responsibility based - - not on their firsthand knowledge of how the damage was caused or after an investigation of all the facts - - but rather based on a fear of what Smith could do to the Hospital, the company and/or the company's $4 million contract, was an attempt to gain an unwarranted privilege. In essence, Smith was seeking a special benefit or privilege to circumvent an investigation of the damage and VPNE's standard operating procedures in order to obtain an immediate settlement.

D. Which is of Substantial Value

The OTSC alleges that an insurance adjuster subsequently estimated the damage to Smith's car at $2,800 which Smith admits. [36] / VPNE paid $1,000 to settle the damage claim. Smith further admits that his insurance company paid him his $500 deductible. [37] / The Commission has previously stated that substantial value is $50 or more. Life Insurance Association of Massachusetts, Inc. v. State Ethics Commission, 431 Mass. 1002, 1003 (2000). Based on Smith's admissions and the undisputed testimony, we find by a preponderance of the evidence that the unwarranted privilege was of substantial value. [38] /

E. Not Properly Available to Similarly Situated Individuals

Petitioner argues that the unwarranted privilege of substantial value was not available to similarly situated individuals because other people who believed that their car was damaged by VPNE would not be able to use their position and association with the Boston City Council to seek a more favorable outcome in a private damage dispute. [39] / Smith argues that he was not seeking anything that another person in his situation would not have been entitled to seek - - asking VPNE to accept responsibility for its actions. The issue, therefore, is whether Petitioner has proven by a preponderance of the evidence that the privilege of substantial value was not properly available to similarly situated individuals. We find that Petitioner has met this burden. We find that similarly situated individuals would be those individuals who also believed that their cars had been damaged while in the care of VPNE. Those individuals would not be able to interject their official position or an official position that could affect VPNE's $4 million contract with the Hospital in an effort to obtain a favorable outcome in a private dispute. A similarly situated person would not have been able to obtain an immediate settlement either. They would have had to follow VPNE's standard claims procedure.

F. Knowingly or With Reason to Know

Petitioner argues that Smith knowingly or with reason to know used his official position to secure for himself an unwarranted privilege of substantial value that was not properly available to similarly situated individuals. Smith argues that any such knowledge element would need to be rational, and that to infer or ascribe such intent or knowledge to him in this situation would be unreasonable because he had no power or ability to take any action to affect VPNE and/or the Hospital. The issue therefore, is whether Petitioner has proven by a preponderance of the evidence that Smith's actions were done knowingly or with reason to know.

"Knowingly" and "reason to know" are not defined in the conflict of interest law. "Knowingly" has been defined as "in a knowing manner . . . with awareness, deliberateness, or intention." Webster's Third New International Dictionary 1252 (1993) . See Still v. Commissioner of Employment and Training, 423 Mass. 805, 812 (1996) (act done knowingly "'if it is [the] product of conscious design, intent or plan that it be done, and is done with awareness of probable consequences'"), quoting Black's Law Dictionary 872 (6 th ed. 1990).

In contrast, "reason to know" has been defined to "indicat[e] or denot[e] that the actor has, within his knowledge, facts from which a reasonable person of ordinary prudence and intelligence might infer the existence of a certain fact in question. Alternatively, the actor could regard the existence of the particular fact in question as so legally probable that he would base his conduct upon the assumption that the fact existed." Fidler v. Eastman Kodak Co., 555 F. Supp. 87, 92 (D. Mass. 1982), aff'd, 714 F.2d 192 (1 st Cir. 1983) (applying discovery rule to determine statute of limitations in products liability action).

In the event that a public employee denies that he intended to use his position to secure an unwarranted privilege of substantial value not properly available to similarly situated individuals, the public employee's conduct will be judged by what the employee knew or had reason to know at the time of his conduct. In Re Singleton, 1990 SEC 476.


In In Re Singleton, the Town's Fire Chief maintained that he did not intend for his remarks to be perceived as an attempt to use his official position to secure private business for himself or his son. As noted in the Disposition Agreement, "Singleton had reason to know his remarks would be perceived as an attempt to use his official position to secure the drywall contract since he knew that his son had submitted a bid to retain the drywall contract and that Gibraltar would require additional inspections from the Fire Department as construction progressed." Id. at 478 n.5 (section 23(b)(2) "embodies objective test" to judge what public employee knew or had reason to know at time of his conduct).


In a similar manner in another Disposition Agreement, Hayes, a Selectman, asserted that the remarks he made to Town police officers after they stopped him for speeding, including identifying himself as a Selectman and asking them to call the Chief, were made out of frustration and that he did not intentionally attempt to use his Selectman position to avoid being issued a ticket. In Re Hayes, 1999 SEC 951, 951. Under the objective standard, however, even if Hayes did not know that his conduct would be perceived as an attempt to secure an unwarranted privilege of substantial value, he had reason to know his conduct would be so perceived. Id. at 952, n.4. See In Re Galewski, 1991 SEC 504, 505 n.2 (Assistant Building Inspector, asking developer during course of inspection whether developer could build him a house he could afford, knew or should have known that in effect he was using his position as inspector to attempt to secure unwarranted privileges).

Applying these legal principles to this case, we find that Petitioner has proven by a preponderance of the evidence that Smith's attempt to seek an unwarranted privilege for himself of substantial value that was not properly available to similarly situated individuals was done knowingly or with reason to know for the following reasons.

We credit the testimony of Nolan and Sargent as to what Smith said to them. We further find that such statements were made for the purpose of getting VPNE to accept liability for the damage to his car at the scene. Based on Smith's statements and the timing of those statements, there is sufficient evidence from which it may be inferred that under these circumstances, even if Smith did not subjectively know or have a specific intent to do so, he should have known that making such statements would be perceived by others, including the VPNE employees, as an attempt to use his position to obtain an unwarranted privilege of substantial value that was not properly available to similarly situated individuals. Moreover, because of his position as Assistant Research Director, including his committee liaison duties, Smith knew or had reason to know that that it was likely that any Hospital plans or neighborhood complaints would come before the City Council committees with which he had been involved. Smith was also aware that as part of his job, he could be working closely with any individual City Councilor as requested. The fact that neither Nolan nor Sargent "caved" in to the improper pressure that Smith sought to bear on their private dispute does not change our conclusion. [40] / Smith's invocation of his employment relationship with the City Council was an improper attempt to influence the discussion and VPNE's investigation of the accident at issue.

IV. CONCLUSION


Petitioner has proven by a preponderance of the evidence that Smith violated G.L. c. 268A, section 23(b)(2) when he knowingly or with reason to know used his position as the Assistant Research Director for the Boston City Council to invoke his employment with the City Council and the power of the City Council in a discussion with VPNE concerning a claim for damage done to his car in an effort to get them to accept liability for the damage at a time when liability was uncertain.

V. ORDER

Having concluded that Respondent Lincoln Smith violated G.L. c. 268A, section 23(b)(2) and pursuant to the authority granted it by G.L. c. 268B, section 4(j), the State Ethics Commission hereby ORDERS Lincoln Smith to pay a civil penalty of $1,000.

DATE AUTHORIZED: August 1, 2008

DATE ISSUED: August 18, 2008

___________________________ _____________________________

E. George Daher, Chairman Matthew N. Kane

___________________________ _____________________________

Jeanne M. Kempthorne David L. Veator



[1] / Because Commissioner King was not appointed to the Commission until April 2008, he has not participated in the deliberations and therefore, has not signed this Decision and Order.

[2] / 930 CMR 1.00 et seq.

[3] / Section 23(b)(2) prohibits a municipal employee from knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.

[4] / 930 CMR 1.01(6)(a)(1).

[5] / See Order on Respondent's Motion for Decision on the Pleadings dated September 18, 2007.

[6] / 930 CMR 1.01(9)(b).

[7] / See Amended Order on Respondent's Motion for Directed Verdict dated February 4, 2008.

[8] / 930 CMR 1.01(9)(k).

[9] / 930 CMR 1.01(9)(e)(5).

[10] / G.L. c. 268B, s. 4(i); 930 CMR 1.01(9)(m)(1).

[11] / Walkowski, who testified that he is close friends with Smith, is a member of the Boston City Council's central staff currently serving as a Special Project Assistant to the President of the Rules Committee.

[12] / The back-up to the liaison fills in when the liaison is not available.

[13] / The Planning Committee's name was changed to the Economic Development and Planning Committee.

[14] / Smith is listed as the "Admin. Back Up" to the Planning Committee for 2005, 2006 and 2007 on the Boston City Council Committee assignments. He is listed as liaison for 2002, 2003 and 2004.

[15] / In 2002, Smith was assigned as liaison, and in 2003-2004, as the back-up, to the University-Community Relations Committee when it existed. That Committee was responsible for reviewing the interactions between the neighborhoods and large institutional developments in the City, including hospitals. In 2005, he was assigned as liaison to the Institutional Relations Committee which was concerned with "developing an improved relationship between [the City's] neighborhoods and both public and private institutions impacting them."

[16] / The eight points are as follows: (1) speeding around the neighborhood is prohibited and will be strictly enforced; (2) aggressive and reckless driving is also prohibited; (3) all valets will stop at stop signs and intersections; (4) all valets shall give right-of-way to pedestrians crossing the street; (5) no valet shall be caught littering in the Neighborhood; (6) VPNE employees will make a conscious effort to pick up any valet tickets littering the ground if they come across it; (7) all VPNE employees will respect the RTH Neighborhood and will refrain from creating or participating in commotion that results in loud noise levels; and (8) VPNE employees who do not live in the RTH Neighborhood are not allowed to park their vehicles in "Residents permit parking sections" on the street.

[17] / Neither Nolan nor Sargent did any investigation regarding the damage prior to speaking to Smith.

[18] / We credit Nolan and Sargent's testimony as to what Smith said to them on November 17 th. Their testimony is supported by their e-mails prepared that same day for the President of VPNE who subsequently forwarded them to Hess Braga at the Boston City Council.

[19] / We credit Nolan's testimony on this issue which is supported by his contemporaneous e-mail prepared that day for Leary.

[20] / Sargent similarly testified that he was concerned by Smith's statements because "I don't know a whole lot about the Boston City Council. But I do know this, . . . it sounds to me like the Boston City Council could have some effect on the business. It sounds to me like a Boston City Councilman could directly affect our business, if they were unhappy with something."

[21] / We do not credit Smith's testimony that he provided Nolan and/or Sargent with a copy of his Assistant Research Director business card. He admitted that he did not tell the Commission's investigator that he had given his business card to Nolan or Sargent and that he did not include any such statement in either his submission to the Commission or to the City Council.

[22] / Nolan testified that the valet ticket did not change his mind whether the damage was caused by VPNE. As he stated: "[F]rom that entrance alone, we do 500 cars a day. Priority one is moving the cars . . . so that the next line of patients can come in. . . . It's get the patients in the [H]ospital, not get the cars surveyed 100 percent. And we're not perfect at it - at getting the damage down. It's not priority one. I wish we were. But, we're not. So . . it's a piece of the puzzle in any damage claim."

[23] / Nolan testified that he prepared his e-mail because he "needed to let my company know and the [H]ospital know that someone who was from the Boston City Council, said that they know all about the parking permits in the area, and he's going to see my company name come across his desk."

[24] / The original claim for $1,468.58 was superseded by a claim for $2,000.

[25] / 930 CMR 1.01(9)(m)(2).

[26] / 930 CMR 1.01(9)(l)(3).

[27] / Because there has been no evidence that Smith actually received any unwarranted privilege, this case involves only Smith's alleged attempt to use his City Council position to secure an unwarranted privilege. See In Re Clancy, 2000 SEC 983, 986 n.7 (PEL) ("s. 23(b)(2) applies to attempts to use one's official position to secure an unwarranted privilege as well as to actual use").

[28] / The OTSC (¶15) alleges, and Petitioner argues, only that Smith sought an unwarranted privilege, not an unwarranted exemption. Accordingly, we address only the unwarranted privilege issue.

[29] / OTSC & Answer, ¶¶3 & 14.

[30] / We credit their testimony which is supported by Nolan, Sargent and Waterman's contemporaneous e-mails to their boss, Kevin Leary, the owner of VPNE. Nolan testified that he prepared his e-mail because he "needed to let my company know and the [H]ospital know that someone who was from the Boston City Council, said that they know all about the parking permits in the area, and he's going to see my company name coming across his desk."

[31] /We do not credit Smith's testimony that Nolan and Sargent asked him if he was "with the City Council" because it is contradicted by his own testimony. When Smith was first asked by the Hearing Officer how he responded to that question, he said that he did not respond. He repeated that answer when asked again on cross-examination. When asked a third time on re-direct examination, he stated that he responded "yes." Smith testified that he believed that they had asked him the question because he had given them one of his City business cards, although he further testified that he did not include that statement in either his submission to the City Council Rules Committee which was reviewing the matter or the Commission and, in fact, even told the Commission's investigator that he had "no idea" how his City Council staff position came into play. Nolan and Sargent deny receiving a business card from Smith, which testimony we credit. Smith also did not include a statement in his submission to the Commission that either Nolan or Sargent had asked him if he was with the City Council.

[32] / This conversation is supported in part as well by Smith's testimony. Although Smith denied that he ever threatened or intended to threaten, Nolan or Sargent, he did admit that when they were discussing parking issues, Nolan asked him, "is that a threat?". Smith further testified that he was aware of parking issues at the Hospital and of the Hospital construction.

[33] / His job description was admitted as Exhibit 4 without objection by Smith.

[34] / Even Smith's good friend, Paul Walkowski, testified that the role of the central staff members (which includes the Assistant Research Director) with respect to issues that come before the City Council, was "not de minimis."

[35] / They both testified that they had done no investigation regarding the damage prior to speaking to Smith.

[36] / OTSC & Answer, ¶12.

[37] / Answer, ¶12.

[38] / Even though the unwarranted privilege that Smith sought to obtain was an immediate settlement of the matter which did not occur, we can reasonably infer that given the estimated cost to repair the damage ($2,800) and the amount sought by Arabella in the litigation ($2,000), an immediate settlement would have had a value greater than $50. In addition, if an immediate settlement had been made, Smith would have saved the costs associated with spending time necessary to proceed through the insurance claim process.

[39] / As the Commission noted in EC-COI-95-5, the phrase "similarly situated individuals" is not defined in the conflict of interest law.

[40] / See In Re Cibley, 1989 SEC 422 (s. 23(b)(2) violated by Selectman's unsuccessful attempt to fix a ticket for a friend). See also In Re Clancy, 2000 SEC 983, 986 n.6 (ex parte meeting was an unwarranted privilege of substantial value "regardless of its effectiveness").