Decision  Decision and Order in the Matter of Jessica Santiago

Date:	01/28/2025
Organization:	State Ethics Commission
Docket Number:	24-0020
Location:	Boston, MA
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 248, Acts of 2024

Decision and Order

I.          Introduction          

On September 12, 2024, Petitioner filed an Order to Show Cause (“OTSC”) charging Respondent Jessica Santiago with violations of G.L. c. 268A, §§ 23(b)(2)(ii) and 23(b)(4).

On December 19, 2024, the Commission considered whether summary decision should enter in favor of Petitioner, pursuant to 930 CMR 1.01(6)(e)2, on the grounds that Respondent failed to file an Answer to the OTSC and otherwise failed to engage in this adjudicatory proceeding.  Finding that Respondent has still filed no Answer and has otherwise failed to participate in these proceedings, the Commission hereby enters summary decision in favor of Petitioner. The amount of the civil penalty for the conduct alleged in the OTSC and an Order regarding it are discussed below.

II.        Procedural History

Following the filing of the OTSC, the Legal Advisor sent a letter to Respondent by email, notifying her that, in accordance with 930 CMR 1.01(5)(c), an Answer was due within 21 days of the issuance of the OTSC, or on or before October 3, 2024, and that a pre-hearing conference would be held on October 21, 2024, at 9:30 a.m.  The letter enclosed a formal notice for the pre-hearing conference and for an adjudicatory hearing, a Scheduling Order, and a Commission resource entitled Representing Yourself at a State Ethics Commission Hearing.  The Scheduling Order directed Respondent to file and serve an Answer on or before October 3, 2024, and notified the parties that failure to comply with the deadlines set forth therein may be grounds for allowance of a motion to dismiss, for summary decision, or such other action as deemed appropriate by the Commission or the Presiding Officer. 

Respondent did not file an Answer by October 3, 2024.  Subsequently, on October 11, 2024, Petitioner filed Petitioner’s Motion for the Presiding Officer to Issue an Order Requiring Respondent to Show Cause why a Summary Decision should not be Entered Against Her and to Stay Deadlines Established in the September 20, 2024 Scheduling Order (“Petitioner’s Motion”), pursuant to 930 CMR 1.01(6)(e)2, which states:

When the record discloses the failure of the Respondent to file documents required by 930 CMR 1.00, to respond to notices or correspondence, or to comply with orders of the Commission or Presiding Officer, or otherwise indicates a substantial failure to cooperate with the Adjudicatory Proceeding, the Presiding Officer may issue an order requiring that the Respondent show cause why a Summary Decision should not be entered against him or her.  If the Respondent fails to show such cause, a Summary Decision may be entered in favor of the Petitioner.  Any such Summary Decision shall be granted only by the Commission, shall be a Final Decision, and shall be made in writing as provided in 930 CMR 1.01(10)(o).   

A pre-hearing conference was held on October 21, 2024, via Zoom.  Respondent did not appear, nor did she file a response to Petitioner’s Motion.  Further, in the Notice of Pre-Hearing Conference, the parties were directed to submit by October 17, 2024, either a joint statement or separate statements briefly addressing certain matters.  Respondent failed to file either.  At the pre-hearing conference, Petitioner was heard on Petitioner’s Motion.  Petitioner represented that he had communicated with Respondent via email in the past, but that the last contact he had from Respondent was on April 1, 2024.  He indicated that his subsequent attempts to contact her were without success. 

On October 28, 2024, the Presiding Officer issued an Order requiring Respondent to, by no later than November 12, 2024, file an Answer or show cause why summary decision should not be entered against her.  The Order notified Respondent: “If Respondent fails to do so, the Presiding Officer will request that the full Commission order that Summary Decision be entered against her.”  The Order also stayed discovery and procedural deadlines in the case.  The Legal Advisor transmitted the Order to the parties by email, and Petitioner served the Order on Respondent via first-class mail at the request of the Presiding Officer.[1]  Respondent failed to comply with the Order, as no response was received from her. 

On November 14, 2024, the Presiding Officer issued an Order referring to the full Commission the matter of whether summary decision should enter in favor of Petitioner.  The Order was served on Respondent by certified mail and first-class mail in addition to email, and the Commission subsequently received proof of receipt by Respondent of the certified mailing. 

On December 19, 2024, a hearing was held before the full Commission as to whether summary decision should enter in favor of Petitioner.  Petitioner appeared and was heard.  Respondent failed to appear.

III.       Summary Decision

Since the outset of this adjudicatory process, Respondent has not cooperated with or engaged in it.  Even considering that she is not represented by counsel, she has received notices and orders which informed her of next steps, and it is her responsibility to defend the case and appear before this agency when required to do so.  She failed to file an Answer, failed to file a pre-hearing conference statement, did not attend the pre-hearing conference, did not respond to the Presiding Officer’s Order requiring her to file an Answer or show cause as to why summary decision should not be entered against her, and failed to appear at the recent summary decision hearing before the full Commission. Further, Respondent had ample opportunity to bring any mitigating circumstances to the Presiding Officer and/or Commission’s attention, but she failed to do so. 

Accordingly, the Commission finds that the record discloses that Respondent has failed to file an Answer as required by 930 CMR 1.00, failed to respond to notices or comply with orders, and otherwise has engaged in a substantial failure to cooperate with this adjudicatory proceeding.  For these reasons, summary decision is hereby entered in favor of Petitioner, pursuant to 930 CMR 1.01(6)(e)2.  

IV.       Violations of G.L. c. 268A, §§ 23(b)(2)(ii) and 23(b)(4)

Law

Section 23(b)(2)(ii) prohibits a public 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 ($50 or more) and which are not properly available to similarly situated individuals.

Section 23(b)(4) prohibits a public employee from, knowingly or with reason to know, presenting a false or fraudulent claim to her employer for any payment or benefit of substantial value.

Allegations

By analogy with cases in which courts set penalties after a defendant has defaulted, we accept the factual allegations in the OTSC as true for purposes of establishing liability.  See In the Matter of Christopher Hicks, 2020 SEC 2730 (citing Rodriguez v. Parks and Woolson Machine Co, Inc., Worcester Superior Court No. 1997-CV-0831 (Agnes, J. July 9, 2007)).  Further, where Respondent has failed to participate in the adjudicatory proceeding, we are constrained to conclude that Respondent violated the law and weigh the seriousness of the violations in determining the appropriate penalty.  See In the Matter of Thomas H. Nolan, 1989 SEC 415.

The following factual allegations in the OTSC are accepted as true.  Respondent was at all relevant times employed as Aquatics Manager for the City of Revere (“City”) and as Aquatics Program Regional Coordinator for the Department of Conservation and Recreation (“DCR”).  Consequently, she was both a municipal employee and a state employee for purposes of the conflict of interest law, G.L. c. 268A.

As an employee of the City, Respondent repeatedly used her scheduled work time and/or sick leave to perform compensated work for DCR.  She also, as a DCR employee, repeatedly used her scheduled work time and/or sick leave to perform compensated work for the City.  On these facts as alleged, the Commission finds that Respondent violated § 23(b)(2)(ii).

Also, Respondent repeatedly submitted timesheets to the City reporting work hours and/or sick leave during which she was actually performing compensated work for DCR, and repeatedly submitted timesheets to DCR reporting work hours and/or sick leave during which she was actually performing compensated work for the City.  On these facts as alleged, the Commission finds that Respondent violated § 23(b)(4).

Respondent reported 330 overlapping hours of work to each of her two public employers, resulting in her receipt of at least $9,000 in unearned and undue payments from her employers.  Further, due in whole or in part to Respondent’s absences from her City job, the City’s pool was not properly staffed and maintained, which resulted in the City having to issue thousands of dollars in refunds to parents of children who were impacted by cancelled swimming lessons and unexpected pool closures.

Civil Penalty

The Commission is authorized to impose a civil penalty of up to $10,000 per violation in this case.  See G.L. c. 268B, § 4(j)(3).  At the summary decision hearing, Petitioner recommended a total civil penalty of $15,000, citing In the Matter of Brooke Merkin, 2022 SEC ____.  Merkin, a full-time state employee who took on a second, compensated position with the state, admitted that she violated § 23(b)(2)(ii) when she used her official positions to attempt to obtain pay from each agency for a total of 31 overlapping work hours, which would have resulted in her being paid more than $1,200 for time she did not work, and § 23(b)(4) by knowingly submitting separate timesheets reporting to each agency that she worked the same hours and claiming payment for those hours.[2]  Merkin agreed to pay a civil penalty of $2,500.  Petitioner indicated that he compared the total overlapping work hours in Merkin and in the within matter to arrive at his suggested civil penalty.

While we give due consideration to Petitioner’s civil penalty recommendation, we believe that a higher civil penalty in this case is appropriate given that, as a result of Respondent’s unwarranted absences from her City job, numerous families were affected by cancelled swimming lessons and unexpected pool closures, which resulted in the City having to issue thousands of dollars in refunds.  The fact that Respondent’s violation of the public trust came at a substantial cost to the City and harmed its residents renders her conduct particularly egregious and therefore warrants a higher civil penalty.  For these reasons, we believe that a total civil penalty of $20,000 is justified here.[3]  

V.        Order

Having concluded that Respondent Jessica Santiago violated G.L. c. 268A, §§ 23(b)(2)(ii) and 23(b)(4), and pursuant to the authority granted it by G.L. c. 268B, § 4(j), the State Ethics Commission hereby ORDERS Jessica Santiago to pay a civil penalty of $20,000.

DATE AUTHORIZED: January 22, 2025

DATE ISSUED: January 28, 2025

[1] Petitioner has certified, throughout these proceedings, that he has served all filings on Respondent via email, which is the default method of service in Commission adjudicatory proceedings.  See 930 CMR 1.01(4)(g)(2).

[2] Merkin also admitted that she violated § 7 when she accepted the second position with the state.

[3] The civil penalty is calculated as follows: $5,000 for violating § 23(b)(2)(ii) as a municipal employee; $5,000 for violating § 23(b)(2)(ii) as a state employee; $5,000 for violating § 23(b)(4) as a municipal employee; and $5,000 for violating § 23(b)(4) as a state employee.