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Commonwealth of Massachusetts

NO. BD-2007-064

IN RE: KATHLEEN ALEXANDER

S.J.C. Order of Term Suspension entered by Justice Cowin on September 5, 2007, with an effective date of October 5, 2007.1
(S.J.C. Judgment of Reinstatement entered by Justice Lenk on March 27, 2012.)

SUMMARY2

This matter arose from actions of the respondent as Pittsfield’s city solicitor in connection with the settlement of a race discrimination case. Those actions were at issue in federal litigation and were the subject of findings made by a district court judge in Powell v. City of Pittsfield, et als, 221 F. Supp.2d 119 (D.Mass. 2002). After a jury-waived trial, the judge found that the respondent had intentionally withheld from Powell, an African-American police officer, information that established Powell’s entitlement to reinstatement under the settlement of the prior discrimination suit. The judge also found that the respondent and Pittsfield’s mayor had blocked Powell’s reinstatement in retaliation for his having filed the prior race discrimination case against the city.

After a petition for discipline was filed in this matter, a motion by bar counsel for issue preclusion was granted, precluding the respondent from contesting certain facts alleged in the petition that had been fully litigated in the Powell matter. Based upon those facts and other evidence introduced at a hearing, a special hearing officer made findings of fact that are summarized as follows.

In 1991, Powell was fired from the Pittsfield police force and filed a race discrimination lawsuit. That suit created negative publicity for the city and hard feelings against Powell within the police force. At the mayor’s request, the respondent negotiated a settlement of the suit, which was finalized in September of 1993.

The settlement agreement provided for Powell’s reinstatement to the police force on certain conditions, including passing a physical exam. Pittsfield’s city physician examined Powell. Lab tests disclosed that Powell had chronic active hepatitis. In December of 1993, the city physician issued a letter to the city and to Powell concluding that Powell was disqualified from serving as a police officer because of his chronic active hepatitis.

In the spring of 1994, Powell had a liver biopsy performed by another physician, who concluded that Powell had chronic hepatitis C but appeared to be fit to serve as a police officer. The respondent met with the Pittsfield mayor and police chief. They discussed the biopsy results and the possibility of a disability retirement for Powell. They were also aware that Powell had started a taxi and limousine business in December of 1993, and they discussed Pittsfield’s “2 job” rule, which was an ordinance prohibiting police officers from having any other business or employment.

At the respondent’s request, Powell arranged to have the biopsy lab data sent to the city physician. On July 5, 1994, the city physician sent the respondent a letter in which he acknowledged his initial conclusion that Powell was disqualified. He stated further that, based on additional information he had reviewed concerning the nature and stage of Powell’s condition, he did not believe that Powell was disqualified from returning to the force.

At the respondent’s request, the city physician sent this letter only to her and not to the Pittsfield personnel department, where he normally would have sent it. When the respondent received the letter, she called the city physician immediately and instructed him to keep the letter secret. The respondent did not tell anyone else about the letter or send a copy of it to anyone else. The respondent intentionally concealed the city physician’s letter in an effort to forestall Powell’s reinstatement.

From July of 1994 through August of 1995, the respondent had a number of communications with Powell’s lawyers concerning his eligibility for reinstatement. In none of those communications did the respondent disclose the city physician’s letter of July 5, 1994, or his opinion that Powell was fit to return to work. Rather, the respondent continued to rely on the city physician’s conclusion of December, 1993, that Powell was disqualified from reinstatement, and she falsely suggested or implied that the city physician continued to hold that opinion.

By late July of 1994, Powell decided to seek a disability retirement because he did not believe that he would be reinstated to the police force. Powell asked the city physician to complete the disability forms because he thought that the city physician considered him to be disabled. The city physician told Powell that he would not sign the forms because he was not Powell’s treating physician. The true reason that the city physician refused to sign the forms was because he did not believe that Powell was disabled. The city physician did not tell that to Powell, however, because the respondent had told him to keep the letter of July 5, 1994, confidential.

In May of 1995, the respondent met with a new lawyer for Powell and raised Pittsfield’s “2 job” rule as a problem for Powell’s reinstatement because of the taxi/limousine business. The respondent raised this issue in order to further delay Powell’s return to the police force.

In March of 1996, Powell filed a pro se motion to revoke the settlement of his discrimination case. The respondent filed an opposition to this motion on Pittsfield’s behalf, together with her own affidavit and an affidavit of the city physician. The respondent did not disclose in any of her opposition papers the city physician’s letter of July 5, 1994, or his opinion that Powell was fit to return to work. The respondent deliberately suppressed the city physician’s letter in an effort to avoid disclosure of her bad faith.

After Powell filed his pro se motion, he received another physical examination by his own doctor, who concluded that Powell still had chronic liver disease but was physically capable of returning to work. In September of 1996, Powell completed the course requirements of the police academy and was reinstated as a Pittsfield police officer.

The actions of the respondent and Pittsfield’s mayor in obstructing and delaying Powell’s reinstatement were substantially motivated by Powell’s constitutionally protected conduct in filing his race discrimination lawsuit against the City. In obstructing and delaying Powell’s reinstatement because of his lawsuit, the mayor and the respondent violated 42 U.S.C. § 1983 (deprivation of civil rights).

In the federal court decision upon which the above facts are based, Powell v. City of Pittsfield, et als, 221 F. Supp.2d 119 (D.Mass. 2002), a punitive damage award of $10,000 was assessed against the respondent. After that award was affirmed on appeal, Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004), the respondent paid the award, plus $3,000 in interest. The respondent was also ordered to pay and paid $17,000 to Powell for his attorneys’ fees.

The special hearing officer concluded that: the respondent’s conduct in obstructing and delaying Powell’s reinstatement because of his lawsuit, thereby violating 42 U.S.C. § 1983, was in violation of Canon One, DR 1-102(A)(5) and (6), and Canon Seven, DR 7-102(A)(7); the respondent’s conduct in concealing the city physician’s letter of July 5, 1994, from Powell and his attorneys and in advising the city physician to keep the report confidential was in violation of Canon One, DR 1-102(A)(4), (5) and (6), and Canon Seven, DR 7-102(A)(3) and (7), and DR 7-109(A); the respondent’s conduct in continuing to rely on the city physician’s letter of December, 1993, in her dealings with Powell’s lawyers after July 5, 1994, and in falsely suggesting or implying that the city physician continued to opine that Powell was disabled, was in violation of Canon One, DR 1-102(A)(4), (5) and (6), and Canon Seven, DR 7-102(A)(3), (5) and (7), and DR 7-109(A); the respondent’s conduct in filing with the federal district court an opposition to Powell’s motion to revoke the settlement and her affidavit without including or disclosing the city physician’s letter of July 5, 1994, and without disclosing the city physician’s opinion that Powell was fit to return to work, was in violation of Canon One, DR 1-102(A)(4), (5) and (6), and Canon Seven, DR 7-102(A)(3), (5) and (7), and DR 7-109(A); and the respondent’s conduct in preparing and submitting to the court an affidavit of the city physician in opposition to Powell’s motion that did not disclose or refer to the city physician’s letter of July 5, 1994, was in violation of Canon One, DR 1-102(A)(4), (5) and (6), and Canon Seven, DR 7-102(A)(3), (4), (5) and (7), and DR 7-109(A).

The special hearing officer found no facts in aggravation or mitigation of the respondent’s misconduct and recommended that the respondent be suspended from the practice of law for two years. On July 7, 2007, the Board voted to accept the special hearing officer’s recommendation. On September 5, 2007, a single justice of the Supreme Judicial Court entered an order suspending the respondent from the practice of law for two years.


FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record before the Supreme Judicial Court.



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