| Date: | 07/26/2022 |
|---|---|
| Organization: | State Ethics Commission |
| Location: | Boston, MA |
The Commission issued a Public Education Letter to Massachusetts Environmental Police Major Kevin Clayton after finding reasonable cause to believe he violated the conflict of interest law by providing an attorney with whom he is friendly the opportunity to promote his private law practice at a mandatory MEP training.
July 26, 2022
Kevin Clayton
Via email
Dear Mr. Clayton:
As you know, the State Ethics Commission conducted a preliminary inquiry into whether you, in your capacity as a Massachusetts Environmental Police (“MEP”) Captain, violated the state conflict of interest law by providing a private attorney (the “Attorney”) the opportunity to promote his law practice at an MEP Regional Bureau training. You cooperated fully with the inquiry.
On June 16, 2022, the Commission voted to find reasonable cause to believe that your actions, as described below, violated sections 23(b)(2)(ii) and 23(b)(3) of the conflict of interest law, General Laws chapter 268A, and authorized adjudicatory proceedings. The Commission has determined, however, that the public interest would be best served by, in lieu of adjudicatory proceedings, issuing you this Public Education Letter publicly discussing the facts revealed by the preliminary inquiry and explaining the application of the conflict of interest law to those facts. By resolving this matter through this Public Education Letter, the Commission seeks to ensure that you and public employees in circumstances similar to those described below will have a clearer understanding of the conflict of interest law and how to comply with it.
The Commission and you have agreed that this matter will be resolved publicly with this Public Education Letter and that there will be no formal proceedings against you. You have chosen not to exercise your right to a hearing before the Commission.
You have been with the MEP since 1987. You were promoted to Captain/Deputy Chief of Enforcement in 2019. In May 2022, you were promoted to Major. As Captain, you were responsible for holding annual meetings of the South Coastal Regional Bureau and for developing agendas for those meetings.
On November 17, 2020, you hosted a mandatory meeting for all MEP officers in the South Coastal Regional Bureau. Approximately fifteen officers were required to attend the meeting. The officers received their regular rate of pay for attending. The average annual base salary for an MEP officer is $36,284.66, or approximately $18.60 per hour.
The November 17, 2020, mandatory meeting was held from 9:30 a.m. to 3:00 p.m. The first item on the meeting agenda was a pre-recorded forty-minute webinar on “police injury” by the Attorney available on one of his law firm’s websites. You played the Attorney’s prerecorded webinar for the audience. During the webinar, the Attorney presented information on injuries police officers might face on the job, signs and symptoms of traumatic brain injuries, and tips on proper documentation of injuries. The prerecorded webinar included approximately ten minutes during which the Attorney answered questions from persons who had viewed the webinar in real time. Following the prerecorded webinar, the Attorney, via videoconference, was available to answer questions from the attending MEP officers. During both the prerecorded webinar and his live appearance, the Attorney discussed his firm’s past cases, settlements, and judgments, and encouraged the webinar attendees to contact his firm. Shortly after the Attorney’s presentation, you sent a text message to him stating, “TY. I think you’re going to receive a few inquiries.”
The Attorney’s law practice primarily represents police officers injured on duty. His firm represents clients on a contingent basis and obtains most of its business through word-of-mouth referrals. You first met the Attorney at a police association conference fifteen to twenty years ago. Subsequently, you became friendly. You attended the Attorney’s wedding and a party celebrating his sons’ graduation from law school. In addition, in 2009-2010, the Attorney represented you in a workplace injury claim before the matter was referred to other counsel.
Section 23(b)(2)(ii) of the conflict of interest law, G.L. c. 268A, prohibits a public employee from knowingly or with reason to know using or attempting to use his official position to secure for anyone an unwarranted privilege of substantial value that is not properly available to similarly situated individuals. Anything worth $50 or more is of substantial value within the meaning of § 23(b)(2)(ii).
As an MEP Captain, and now Major, you are a public employee subject to the conflict of interest law. As set forth above, you knowingly used your official MEP position to provide a private attorney, who primarily represents injured police officers, with the opportunity to promote his legal practice before a captive audience of about fifteen MEP officers at the South Coastal Regional Bureau meeting on November 17, 2020.
It was a privilege for the Attorney to have the opportunity to provide information about his law firm directly to a captive audience of potential clients. Where the Attorney’s firm relies on referrals and represents clients on a contingency basis, he has an obvious private business interest in making police officers, including MEP officers, aware of the services his law practice offers. This privilege was of substantial value because the opportunity to command the attention of fifteen MEP officers and advertise his law firm for over forty minutes of a required regional bureau meeting was worth $50 or more to the Attorney in that it was likely to generate new business for his law firm (as reflected in your text message to him following his presentation). In addition, the combined public compensation paid to the MEP officers for the time they were required to watch the Attorney’s presentation was over $275.
In addition to being of substantial valuable, this privilege was unwarranted. Although the Attorney’s webinar may have included information relevant to MEP officers, this did not justify providing the Attorney with the opportunity to advertise his firm to a captive audience of potential clients on their publicly-paid work time in a public workspace. MEP resources, including MEP officers’ public work time, must be used solely to further the public interest. Here, you used your official position to divert those resources to benefit a private business. In addition, some of the “tips” provided to the MEP officers in the webinars were inconsistent with the MEP’s interests as a governmental agency. While such information may be appropriate to distribute at private police officers’ association meetings, its distribution during a mandatory on-duty training program was not appropriate.
The substantially valuable unwarranted privilege of delivering targeted advertising of a private business to public employees on public work time that you, as MEP Captain, secured for the Attorney was not properly available to any private attorney or other individual similarly situated to the Attorney. In taking the above-described actions, you knew or had reason to know that you were providing the Attorney with a valuable unwarranted privilege that was not properly available to him.
For the above reasons, the Commission found reasonable cause to believe you violated § 23(b)(2)(ii) of the conflict of interest law.
Section 23(b)(3) of the conflict of interest law prohibits a public employee from acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy the employee’s favor in the performance of their official duties, or that the employee is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.
By allowing the Attorney to present at the November 17, 2020 South Coastal Bureau meeting, you knowingly or with reason to know acted in a manner that would cause a reasonable person, with knowledge of the relevant circumstances, to conclude that you were improperly influenced in your MEP duties by your association with the Attorney and that he could unduly enjoy your favor in the performance of those official duties. You did not disclose your personal relationship with the Attorney in writing to your appointing authority prior to facilitating his presentation. Accordingly, the Commission found reasonable cause to believe you violated § 23(b)(3) of the conflict of interest law.
Based upon its review of this matter, the Commission has determined that the public interest would be best served by the issuance of this Public Education Letter and that your receipt of this letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law.
This matter is now closed.
Sincerely,
David A. Wilson
Executive Director
