Ethics Commission Finds in Favor of Department of Industrial Accidents Administrative Law Judge Cheryl Jacques
Enforcement Division failed to prove by a preponderance of evidence an allegation that Jacques used her official position to intervene in a billing dispute on behalf of her brother-in-law
The Massachusetts State Ethics Commission issued a Decision and Order (“Decision”) in which it found that the Commission’s Enforcement Division failed to prove by a preponderance of the evidence its allegation that Cheryl Jacques (“Jacques”), an administrative law judge for the Department of Industrial Accidents, attempted to use her official position to demand that a dental office write off a debt of more than $1,000 incurred by her brother-in-law. The case is now concluded by the issuance of the Decision.
Section 23(b)(2)(ii) of the conflict of interest law, G.L. c. 268A, prohibits public employees from knowingly or with reason to know, using or attempting to use their official positions to secure for themselves or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to other similarly situated individuals.
The Enforcement Division filed an Order to Show Cause on March 12, 2012, alleging that Jacques violated section 23(b)(2)(ii) of the conflict of interest law by invoking her position as a judge in an attempt to persuade the staff of Tremont Dental to write off more than $1,000 owed to the dental office by her brother-in-law, Preston Green (“Green”). The case centered on three telephone conversations on November 12, 2010, during which Jacques contacted Tremont Dental on Green’s behalf and argued that Tremont Dental had represented to Green that it was a preferred provider organization (“PPO”), and then incorrectly billed him at higher non-PPO rates. The owner of the dental office, Dr. Og Lim (“Lim”), and the office manager, Jin Choi, testified at the adjudicatory hearing that, during the phone calls, Jacques identified herself as a judge and spoke in an intimidating manner. Dr. Lim said that Jacques threatened to contact the insurance company to have the dental office removed as a plan provider, and also to report the dental office to the Consumer Protection Division of the Attorney General’s Office.
Jacques testified that she made the calls from her personal cell phone and did not identify herself as a judge, but rather as an attorney and as Green’s sister. According to the Decision, Jacques testified that Dr. Lim stated she had to get off the phone because she had patients waiting for her, and Jacques then “‘inadvertently’ identified herself as a judge. ‘I said, I had a courtroom full of people, and then she asked me if I was a judge and then I was trapped. I had to say yes. I wasn’t going to lie…’” Jacques said that she never intended to introduce her position into the conversation and testified that she probably should have ended the call immediately.
In the Decision finding in favor of Jacques, the Commission concluded that there was “no basis for determining whether Dr. Lim’s testimony that Jacques mentioned her title purposefully or Jacques’s testimony that she mentioned it inadvertently is more credible. While best avoided, we would not consider an inadvertent mention of one’s position, in response to someone else’s question asking whether one holds that position, to amount to a knowing attempted use of position in violation of §23(b)(2).”
The Commission further concluded that “[a]fter an assessment of credibility, the facts established by the evidence in this case are equally consistent with no violation as with a violation. Accordingly, [the Enforcement Division] has not proved by a preponderance of the evidence that Jacques knowingly, or with reason to know, attempted to use her position to gain an unwarranted privilege for Green.”