Ethics Commission Fines Hanson Council on Aging Director of Elder Affairs for Violating the Conflict of Interest Law
Managed an Elderly Client's Financial Affairs
The State Ethics Commission ("Commission") approved a Disposition Agreement ("Agreement") in which Hanson Council on Aging ("COA") Director of Elder Affairs Jean-Marie Smith ("Smith") admitted to violating G.L. c. 268A, the conflict of interest law, by, in her private capacity, managing the financial affairs of an elderly COA client ("Client"). Pursuant to the Agreement, Smith paid a $2,000 civil penalty.
According to the Agreement, the COA provides various services to town residents, aged 55 and older, through the town's senior center. In June 2007, Smith became concerned about the Client's appearance and behavior and arranged for his hospitalization. Smith then consulted with a town official about whether she could, in her private capacity, become the Client's representative and manage his financial affairs. She was advised, through Town Counsel, that she could not do so. Although the Client's file at the COA contained contact information for his daughter, and despite having been advised that she could not act as the Client's private agent, after the Client was discharged from the hospital, Smith engaged in the following activities without notifying the Client's daughter:
- Arranged nursing home care for the Client and had her boyfriend sign the admitting paperwork as the Client's representative;
- Obtained the Client's approval to allow Smith to handle his financial affairs;
- Changed the Client's mailing address for a bank savings account to Smith's home address;
- Along with the Client, withdrew the entire balance from the Client's savings account, which was, at the time, $17,155, and used $8,455 of those funds to prepay the Client's funeral expenses; $1,500 to open a bank account for burial expenses, listing Smith and her boyfriend as co-owners on the account; and kept the remaining $7,000 in cash at Smith's home;
- Arranged for her boyfriend to act as the Client's representative to apply for MassHealth benefits for the Client; and
- Arranged to have herself added as the co-owner on the Client's savings account.
The Agreement states that when Smith eventually spoke to the Client's daughter, Smith did not disclose that she was handling the Client's financial affairs. The Client was approved for MassHealth benefits. The nursing home costs were paid in part by MassHealth, and in part by the Client's Social Security and Veterans Administration ("VA") benefits. The VA benefits were direct-deposited into the Client's savings account. Between July 2007 and May 2009, Smith withdrew a total of $27,703 from the Client's savings account, which she claimed she used to pay for the Client's expenses. Of the $27,703 withdrawn, however, there were no receipts or other records documenting the expenditure of approximately $2,500, although Smith offered oral justifications for $1,000 of those expenditures. Expenditures totaling approximately $1,000 were undocumented and unaccounted for in any way.
The Client died in May, 2009. Smith used $1,566 that remained in a pre-paid nursing home account to purchase a cemetery marker for the Client and to make a $566 donation to the COA. The funds remaining in the Client's savings account were sent to the Client's daughter.
Section 23(b)(2) 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 available to similarly situated individuals. According to the Agreement, "by accessing and spending the Client's funds without oversight and without keeping adequate records documenting such expenditures … 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 …."
"The conflict law prohibits public employees from using their official positions to exploit the relationships they have with those they serve," stated Commission Executive Director Karen L. Nober. "Public employees whose jobs require them to provide services to our most vulnerable citizens cannot use their positions of trust to gain access to private financial resources. In this instance, the public employee should have assisted the Client in locating suitable assistance or representation."