| Date: | 09/29/2021 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 20-0002 |
| Referenced Sources: | G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011 |
- This page, Final Decision and Order in the Matter of Jeffrey Fournier, is offered by
- State Ethics Commission
Decision
Decision Final Decision and Order in the Matter of Jeffrey Fournier
Table of Contents
FINAL DECISION AND ORDER
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INTRODUCTION
This matter concerns allegations that Respondent Jeffrey Fournier (“Fournier”), a consultant at the Massachusetts Office of the State Auditor (“OSA”), violated G.L. c. 268A, § 4(c) by communicating with the Massachusetts Department of Children and Families (“DCF”) and the Massachusetts Office of the Child Advocate (“OCA”) on behalf of Riscovery, a private business, to pitch the company’s services to those state agencies to use in monitoring Medicaid Management Information System (“MMIS”) data. It is further alleged that Fournier violated G.L. c. 268A, § 23(b)(2)(ii) by using or attempting to use his consultant position at the OSA to gain advantageous access to DCF and OCA for the purpose of promoting Riscovery.
For the reasons set forth below, we find that Petitioner has proved by a preponderance of the evidence that Fournier violated § 4(c) and § 23(b)(2)(ii).
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PROCEDURAL HISTORY
On June 23, 2020, Petitioner initiated these proceedings by filing an Order to Show Cause (“OTSC”) against Fournier.[1] Fournier filed an Answer and Supplemental Answer on July 28, 2020 and July 31, 2020, respectively, denying any violation.
An adjudicatory hearing was held on April 26, 2021. Fournier represented himself. Both parties filed post-hearing briefs. On July 27, 2021, the parties presented closing arguments before the full Commission.
In rendering this Final Decision and Order, each undersigned member of the Commission has considered the testimony, the evidence in the public record, and the arguments of the parties.
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FINDINGS OF FACT
Fournier’s Work at the OSA
In November 2011, the OSA issued a Request for Responses (“RFR”) looking for an IT Project Manager. (Respondent’s Exhibit [“R”] 19, p. 3).[2] The RFR specified a number of technical mandatory qualifications for the position, such as that the candidate have “experience working in an environment where IT services multiple applications that span many divisions in an organization,” and also required that the candidate have a “minimum of five years experience working on projects sponsored by the Commonwealth of Massachusetts.”[3] (R 18, p. 3).
After a competitive hiring process, which included a review of applicants’ resumes and follow-up phone calls, the OSA hired Fournier pursuant to its RFR. (R 19, p. 3; R 18). Fournier was specifically hired, in part, due to his prior work experience at the Executive Office of Health and Human Services (“EOHHS”). Prior to his OSA job, Fournier worked for six years at EOHHS as a project manager consultant, where he gained specialized knowledge related to Medicaid data warehousing. (Petitioner’s Exhibit [“P”] 4, p. 2; R 19, pp. 2-3). Fournier understood that his past “similar service was a specific requirement for [his OSA] position.” (Transcript [“Tr.”] 212).
Fournier remained a consultant for the OSA from January 2012 to December 2017. (P 2, p. 2). While at the OSA, Fournier oversaw the development and implementation of a six-year Technology Roadmap that outlined 19 major technology projects, supervised nine full-time employees, hired and managed 24 contracted staff, created project contracts and statements of work, and oversaw bid review and vendor selection. (P 4, p. 1).
From July 1, 2017 through June 30, 2018, Fournier was authorized to work 1,562 hours, or approximately 30 hours per week, at a rate of $116.61 per hour. (P 6, p. 1). Fournier worked out of the OSA’s offices on the 19th floor at One Ashburton Place and was issued a state-ID card. (P 1, pp. 3-4). Fournier reported to the Chief Information Officer (“CIO”) of the OSA and understood his relationship with the OSA to be “direct.” (P 1, p. 16).
In November 2015 and November 2016, Fournier signed Acknowledgments of Receipt of the Conflict of Interest Law summary for state employees. (P 8; P 7). Fournier also completed the Conflict of Interest Law online training program for state employees in June 2015 and November 2016. (P 10; P 9).
The OSA hired IT consultants through approved vendors under state contracts. (R 18, p. 1). During all relevant times in 2017, Fournier worked under the ITS63StaffAugCat2 IT Staff Augmentation Lower Overhead contracts, specifically the Category 2B (“Cat2B”) statewide contract. (P 6, p. 1). The Cat2B statewide contract is used when a Commonwealth Agency has “independently located an individual (‘Resource’) they wish to retain,” and the individual already has an “employer.” (R 24, pp. 1-2). Under the Cat2B contract, the vendor then subcontracts with the individual’s “employer.” (R 24, p. 2). “The awarded vendor’s use of subcontractors is subject to the provisions of the Commonwealth’s Terms and Conditions and Standard Contract Form, as well as other applicable terms of this Statewide Contract.” (R 24, p. 3). Typically, the hiring agency will first negotiate a pay rate with the individual it wishes to hire, and then allow the individual to choose which Cat2B vendor the individual will work with. (R 24, p. 4).
McInnis Consulting Services, Inc. (“McInnis”) served as one of three approved vendors for IT consultants under a Cat2B statewide contract with the Commonwealth and held a contract with the Commonwealth from 2016 through 2021. (P 5; R 24, p. 13). McInnis subcontracts with the individual’s “employer” and earns an hourly markup for its services. (R 24, p. 5).
The OSA entered into a Statement of Work (“SOW”) with McInnis for Fournier’s services. (P 6). The SOW specifically identifies Fournier as the “Consultant” that McInnis shall assign to provide Project Manager – Technical Lead services to the OSA. (P 6, p. 1). The SOW states that Fournier was personally responsible for performing duties including: providing project management recommendations and best practices; managing and/or mentoring OSA resources; facilitating meetings with business and IT staff, and all levels of management; and transferring knowledge/expertise to others within the OSA and externally. (P 6, p. 1).
The SOW “incorporates all the terms and conditions and hierarchy of documents negotiated under . . . ITS63StaffAugCat2 (the IT Staff Augmentation Lower Overhead contracts) . . . . ” (P 6, p. 1). The SOW states: “The Consultant (or Resource) is provided to the Commonwealth Agency (’Office of the State Auditor’) in compliance with the terms of the Contract.” (P 6, p. 1).
Fournier was a W-2 employee of his own company, Jakal Consulting, Inc. (“Jakal”), which subcontracted with McInnis. (Tr. 216-217; R 29). In 2017, Fournier was paid for his OSA work through McInnis, where “McInnis was paid by the state” and McInnis paid Jakal. (P 1, p. 16; Tr. 216, 251-253; R 48). For tax-reporting purposes, McInnis sent a 1099-MISC form to Jakal. (Tr. 216).
On November 30, 2017, Fournier’s supervisor gave Fournier notice that his job would end December 13, 2017. (Tr. 237; P 19, p. 2). “Shortly thereafter,” the termination date was extended until January 13, 2018. (P 12, p. 3; Tr. 238).
Riscovery
Fournier and two OSA co-workers, Brian Scheetz (“Scheetz”) and Sanjay Shah (“Shah”), formed a company named Riscovery, Inc. (“Riscovery”), which was incorporated on September 15, 2014 in Delaware. (P 1, p. 9; P 27). Fournier was a founding partner and principal of Riscovery. (P 4, p. 1). Riscovery provided risk analysis services. (P 1, p. 10).
The DCF Audit
On December 7, 2017, the OSA released an Official Audit Report of DCF (“Audit Report”). (P 11).
The Audit Report states that DCF “is charged with protecting children from abuse and neglect and strengthening families.” (P 11, p. 3 (quoting DCF’s website)). OSA found that DCF “does not effectively identify and investigate all occurrences of serious bodily injury to children in its care.” (P 11, p. 13). The Audit Report made a Recommendation that “DCF should establish policies and procedures that require its staff to routinely monitor MMIS data to ensure that it can identify, and investigate as necessary, medical occurrences that appear to be critical incidents involving children in its care.” (P 11, p.14). MMIS is the “claim-processing and data warehouse system used by the Commonwealth’s Medicaid program (MassHealth) and its Children’s Health Insurance Program.” (P 11, p.7).
DCF responded to the recommendation in the Audit Report: “DCF will determine the feasibility of accessing MassHealth claims data in its MMIS system to identify medical treatment that may indicate a child was abused or neglected and should have been reported to DCF (either by our providers or by mandated reporters such as doctors and hospital staff). Given the fact that this data is claims data and likely several months old by the time it might be available to DCF, any process will serve as an ‘after-the-fact’ quality indicator.” (P 11, p. 15).
The Auditor replied: “In fact, based on OSA’s use of MassHealth data in this and other audits, claim information is typically available to be viewed in MMIS within 2 to 14 calendar days from the date the medical procedure was provided. Moreover, although there may be some lag time between the date of a potential critical incident and the time this information would be available to DCF, we believe it is better to receive this information late and act on it than not to receive it at all.” (P 11, pp. 15-16).
The Audit Report also states that the mission of OCA is “to ensure that every child involved with state agencies in Massachusetts is protected from harm and receives quality services.” (P 11, p. 9 (quoting OCA’s website)). The Audit Report concludes that “DCF does not report all critical incidents affecting children in its care to the Office of the Child Advocate.” (P 11, p. 16).
DCF agreed that its process of reporting critical incidents to OCA “needs to be simplified and streamlined” and stated that “DCF is actively working with the Office of the Child Advocate to develop the specific criteria on which incidents are to be reported as critical incidents in accordance with the requirements of the current law.” (P 11, p. 17). OCA also provided a written response in the Audit Report stating that it was continuing to work on the issue of critical incident reporting with the child serving agencies, including DCF. (P 11, p. 18).
In his consultant role with the OSA, Fournier did not work on the DCF audit. (Tr. 238). He got his first exposure to the results of the Audit Report when it was published on December 7, 2017. (P 1, p. 11).
On that day, Fournier sent an email to his wife stating, “Ya Baby!! We’re in the $$$$$$. Just a matter of time.” (P 13). Fournier included links to two news articles about the audit findings. (P 13). His wife replied, “GREAT! help out those kidos [sic]!” (R 52). Fournier explained to an unintended recipient of the email that it was about software “we’ve developed” and were closer to commercializing because the audit results had been published. (P 13).
On December 7, 2017, Auditor Suzanne Bump (“Auditor Bump”) and OSA staff members received an internal email stating that a spokesperson from office of then-Speaker of the House Robert DeLeo (“Speaker DeLeo”) said that Speaker DeLeo was “incredibly upset and troubled by the Auditor’s DCF report,” that “[h]e has long-prioritized DCF and he views protecting vulnerable children as a central mission of state government,” and that his office “has reached out to the Office of the Child Advocate to consider next steps.” (R 34).
On December 11, 2017, the Commissioner of DCF sent an email to “DCF Team Members” containing a “Note from Gov. Charlie Baker,” in which Governor Baker expressed skepticism about the Auditor’s focus on claims data as a primary tool to spot child abuse. (R 6). However, Governor Baker acknowledged that “maybe” there are “opportunities to use claims data as a secondary information tool[],” and stated that “we will look into that.” (R 6, p. 2).
Communications with Ryan FitzGerald at DCF
On or about December 11, 2017, Fournier left a voice message for Ryan FitzGerald (“FitzGerald”), the Chief of Operations and Organizational Improvement for DCF. (P 20). One of the reasons Fournier contacted DCF was that the audit had identified certain issues with DCF. (P 1, p. 12). Fournier’s “hook” was that, while DCF had expressed concern in the Audit Report that claims data could be months old, he could get the claims data within days. (P 1, p. 7). Fournier was “contacting him about something that has to do with my own company” and was not calling FitzGerald as an employee of OSA. (Tr. 240; P 1, p. 14).
In the voicemail, Fournier introduced himself as “a consultant at the State Auditor’s Office” and later repeated it. He also said:
[T]he last six years I've been working as a project manager helping them develop their data warehousing and risk analytic solutions for auditing as part of their capital bond projects. Myself along with two other individuals at the OSA are the primary architects of the data warehousing and software solution that was used in the recent audit that essentially used the Medicaid data to analyze and report on children at risk. And prior to our work at the OSA, Sanjay Shah, one of the individuals I just mentioned, he and I previously worked at HHS as project PM's on the MMIS data warehouse solution, the new as well as the previous data warehouse. So we know Medicaid data and warehousing quite well. And knowing that the audit was coming to an end and recognizing that there is no market solution available, we have teamed with the OSA's current director of data analytics, Brian Scheetz, who's the actual architect and developer of all the OSA's risk analytics software to re-engineer the audit software to be more DCF focused, more case management and caseworker friendly. And we'd like to show you what we've done on this, specifically the work that we've done on the audit, and how we've translated that or re-constituted that solution to work for DCF to fit your needs, and we were wondering if we might be able to show you a solution and set the time to demonstrate some of our capabilities…. I think we can really help you. It will be much cheaper, much faster than I think anyone has anticipated. We’ve done this, we know how to do it, and we’d like to show you that solution.
(P 20; Tr. 42, 43).
FitzGerald, due to his position, receives many calls from IT companies pitching products and he “often” does “not” return these calls. (Tr. 51-52). If DCF was interested in a product, “usually the next step would be to refer it to [its] IT folks, and one of our IT people. . . often do[es] a first initial call.” (Tr. 52-53).
Fournier’s voicemail “struck” FitzGerald as “odd” and “very much like a sales call.” (Tr. 44, 45). He was concerned that state employees could be using a tool that was developed for the public audit for their own financial gain. (Tr. 46-47).
FitzGerald used his cell phone to record the voicemail so he could “walk into the other room” and “brought it to some of our leadership team . . . including the commissioner.” (Tr. 45, 86). They discussed the possibility that the Auditor had asked Fournier to call FitzGerald about the audit and offer support. (Tr. 48-50). After discussion, DCF’s leadership team decided that FitzGerald should call Fournier back to “hear him out” so as not to appear “non-responsive” if DCF was being offered “this great tool, this great support.” (Tr. 49-50).
FitzGerald called Fournier back and made handwritten notes during the call. (Tr. 50-56; P 15). FitzGerald wanted to return Fournier’s call promptly so as not to reflect poorly on DCF. (Tr. 51). During the call, Fournier explained his background and experience, including his prior work at EOHHS and his “in-depth knowledge about Medicaid data.” (Tr. 54; P 15; P 1, pp. 14-15). They also discussed the background and experience of Fournier’s colleagues. (Tr. 54; P 1, p. 14). FitzGerald and Fournier discussed the lag time and “aging of the claims data” that was identified in the Audit Report. (Tr. 58-59). Fournier talked about “how they had refined . . . the tool that had been used in the audit” so “it would be a better tool for social workers.” (Tr. 58-60). Fournier’s “sales pitch” included an offer to FitzGerald: “[W]e could come and show you some things that we could do and we can reengineer this to make it more DCF friendly and . . . caseworker specific . . . .” (P 1, pp. 14-15; Tr. 58-60).
On December 13, 2017, Fournier sent an email to FitzGerald following up on the telephone conversation. (P 16). The email was sent from Fournier’s Riscovery email, and it copies his own OSA email address and his Riscovery colleagues at their Riscovery email addresses. (P 16). The email states: “[w]e would like to talk with and show the DCF leadership team what we have done, and what can be done in this space to offer a realistic, affordable, timely solution to this emerging and urgent need.” (P 16).
On December 29, 2017, Fournier left a second voicemail for FitzGerald explaining that he has “resigned” from his position at the OSA, has “removed any appearance of a conflict of interest,” and “apologize[d] if this has created any uncomfortable situations for anyone.” (P 21). Fournier further stated that, if there was still interest on FitzGerald’s or DCF’s part, “we certainly would be interested in speaking with you and showing you what we’ve done. And I think you’ll be impressed with our capabilities.” (P. 21).
A meeting was never held with DCF. (P 12, p. 4; Tr. 65).
Communications with Melissa Williams at OCA
Melissa (nee Christiano) Williams (“Williams”) was the Program Coordinator for OCA. (Tr. 93). OCA shares space on the fifth floor of One Ashburton Place with MassHealth, EOHHS, and Executive Office of Elder Affairs (“Elder Affairs”). (Tr. 94). Members of the public do not have access to OCA office space, and a member of the public who wants to contact OCA first would need to speak with the Elder Affairs executive assistant, who would then call to notify Williams that someone from the public wants to contact OCA. (Tr. 95-96). A member of the public who wishes to speak with OCA would be met in the lobby of the fifth floor. (Tr. 95).
In mid-December 2017, Fournier appeared at Williams’ cubicle at OCA. (Tr. 94). She did not get a call from anyone at the Elder Affairs front desk when Fournier approached her workspace. (Tr. 96). Fournier looked at her name tag and asked whether she was Melissa Christiano, the Program Coordinator. (Tr. 104-105). No one was with Fournier when he approached her cubicle. (Tr. 96-97). Williams was “taken off guard,” because OCA does “not receive people from the public or from other state agencies, for that matter, . . . unless there is a meeting,” and Williams was aware of all meetings scheduled for any given day. (Tr. 98).
Fournier identified himself as working for the OSA and asked to set up a meeting with the Child Advocate about a recent audit. (Tr. 96-98). After Fournier left, Williams notified her direct supervisor as well as the Child Advocate that a man from OSA wanted to set up a meeting. (Tr. 98-99).
Fournier spoke with Williams because “she was aware of the audit and could speak for the Child Advocate.” (P 1, p. 15). Fournier did not believe they could get a contract with OCA, but that OCA was aligned with DCF in terms of their mandate to protect children. (P1, p. 15). Fournier “thought if we could get in front of her [the Child Advocate] and DCF at the same time . . . the Child Advocate would be an advocate if she kind of bought into what we were going to prescribe.” (P 1, pp. 15-16).
On December 12, 2017, Fournier sent an email to Williams to follow up. (P 14). He wrote:
As I mentioned, I have been a consultant at the State Auditor’s office for the last six years and a few of us have been working on developing their data warehousing and risk analytic solutions as part of their Capital Bond technology project. We are the primary architects of the data warehouse and software solutions used in the recent Audit that used Medicaid data to analyze and report on Children at risk. We understand that there are some issues with the period of claims data used in the Audit, but the underlying principle, methodology and ability to assess and identify children at risk through Medicaid Claims data is un-deniably powerful and is a proven approach. We did it and we can do it for claims data that is 2 days old, not two years like it was in the Audit.
Knowning [sic] that the Audit was coming to an end and recognizing that there is no market solution available, we have re-engineered the Audit Software to be more DCF focused, more Case Management and Case Worker friendly. Every day the case worker would log into the App and see what their assigned children’s risk portfolio looks like with Alerts, Scores, Medical Histories, Notifications, Visualizations, etc. based on days old data. Not weeks, months, or years old.
We have formed a company, Riscovery, Inc., and would like to show you what we’ve done at the State Auditor’s Office and how we have re-constituted the software to work for DCF and fit their needs. We have an affordable, incredibly powerful and effective solution available right now. We were hoping to show the Child Advocate our work so she can be more informed as to the overall validity and capability of this novel approach and our combined abilities to help these children almost immediately. (P 14, pp. 5-6).
Fournier ends the email by expressing interest in “an audience with the Child Advocate . . . to demonstrate the software.” (P 14, pp. 5-6). Fournier sent this December 12 email, as well as additional follow-up emails to Williams dated through December 29, 2017, from his Riscovery email address. (P 14). In an email to Williams on December 13, 2017, he copied his OSA email address as well as his two Riscovery colleagues at their Riscovery email addresses. (P 14, p. 3).
Fournier sent an email to Williams on December 29, 2017 “confirming the meeting on the January 3 with the Child Advocate.” (P 14, p. 1; Tr. 102). Fournier set the meeting up with the Child Advocate with the expectation that at least one of his Riscovery colleagues would be in attendance. (P 14, p. 4). The meeting with the Child Advocate took place on January 3, 2018. (P 22, p. 3). Williams did not attend the meeting. (Tr. 102).
Reaction to Agency Outreach and Resignation
On or about December 13, 2017, Secretary Marylou Sudders of EOHHS met with Auditor Bump and “complained about the fact that . . . [Fournier] was trying to sell software back to DCF.” (Tr. 234-235).
On December 21, 2017, OSA’s General Counsel and HR Director spoke with Fournier. (R 49; Tr. 239). OSA’s General Counsel told Fournier he wanted to ask questions about the December 13, 2017 email Fournier sent from his Riscovery email to FitzGerald, on which he cc’d his two other Riscovery colleagues and Fournier’s OSA public email. (R 49). The OSA officials told him: "we've got this appearance of a potential conflict of interest between you and DCF with [your two OSA/Riscovery colleagues]." (Tr. 239). During that meeting, Fournier resigned. (Tr. 240; R 49; R 4.1, p. 1).
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DISCUSSION
- Burden of Proof
Petitioner must prove its case and each element of the alleged violations by a preponderance of the evidence. 930 CMR 1.01(10)(o)2. The weight to be attached to any evidence, including evidence concerning the credibility of witnesses,[4] rests within the sound discretion of the Commission. 930 CMR 1.01(10)(n)3. In deciding this case, the Commission must make a determination of every issue of fact or law necessary to its Final Decision. 930 CMR 1.01(10)(o)3.
- Fournier’s Status as a State Employee
An element common to the alleged violations of both § 4(c) and § 23(b)(2)(ii) is whether Fournier, as a consultant for the OSA, was a state employee for purposes of the conflict of interest law during the times relevant in this matter. Petitioner asserts that Fournier was a state employee, which Fournier denies.
The definition of state employee under the conflict of interest law includes any person “performing services for or holding an office, position, employment, or membership in a state agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis, including members of the general court and executive council.” G.L. c. 268A, § 1(q) (emphasis added). The scope of the definition is broad and includes “virtually anyone who performs services for the government, including employees or principals of privately-owned businesses.” EC-COI-99-7 (“’[T]here is virtually no room’ for an argument that the Massachusetts law does not reach independent contractors….”) (citation omitted).
Long-standing Commission precedent holds that, under certain circumstances, where a state agency has a contract with a private entity, such as a corporation or company, an individual who works for the private entity is a state employee for purposes of the conflict of interest law while working on the contract. EC-COI-89-35; see also EC-COI-87-19; EC-COI-87-8. The rationale is that if the contract or the circumstances indicate that the state seeks the services of the entity’s employee in particular, the employee should have the same duty of integrity and loyalty to the state as employees who are hired directly by the state.
In order to determine whether an individual is a state employee by reason of a contract between a state agency and a private entity such as a corporation, the Commission examines the five factors below, with no single factor being dispositive.
1. whether the individual's services are expressly or impliedly contracted for;
2. the type and size of the corporation;
3. the degree of specialized knowledge or expertise required of the service. For example, an individual who performs highly specialized services for a corporation which contracts with a public agency to provide those services may be deemed to be performing services directly to that agency;
4. the extent to which the individual personally performs services under the contract, or controls and directs the terms of the contract or the services provided thereunder; and
5. the extent to which the person has performed similar services to the public entity in the past.
EC-COI-89-35; EC-COI-87-19; EC-COI-87-8.[5]
Under the circumstances presented here, we conclude that Fournier is a state employee for purposes of G.L. c. 268A by virtue of the contract between McInnis and the state, which includes the SOW. Of significance is that the SOW expressly names Fournier as the individual to provide the services to the OSA. The facts indicate that the OSA, not McInnis, selected Fournier using a competitive hiring process that resulted in Fournier being chosen specifically for his skill-set and qualifications. Furthermore, the services provided under the SOW are not “ministerial or routine services,” but instead are “professional, highly specialized and call for discretion and judgment.” EC-COI-87-8. Fournier personally performed the services as outlined in the SOW. Finally, Fournier worked at the OSA for approximately six years and, prior to that, he worked for six years at EOHHS involving a similar area of expertise. (P 4).
Fournier repeatedly argues that he is an “independent contractor” and not a “state employee.” He points to statutes outside of the conflict of interest law, such as the Commonwealth’s Independent Contractor Law, G.L. c. 149, § 148B. He also points to the SOW, which states: “At no time shall the Resource be considered an employee of the Agency or the Commonwealth, but shall at all times be considered a temporary Resource assigned by the ITS63StaffAug vendor (‘McInnis Consulting Services[,] Inc.’) to the Agency under the Contract as an employee of the Vendor or the Vendor’s Subcontractor.” (P 6, p. 1). He also refers to other documents distinguishing between independent contractors and state employees. (See, e.g., R 14; R 15; R 16).
There are numerous instances, however, in which an individual who is not regarded as a state employee under areas of law such as labor, employment, or taxation, is regarded as a state employee for purposes of the conflict of interest law. For example, while uncompensated board members may not be considered state employees for purposes of employment law, they are “state employees” for purposes of the conflict of interest law.[6] The result of the Commission’s five-factor analysis commonly is that a company employee who is not regarded as a state employee in a context outside of the conflict of interest law is regarded as a state employee for purposes of G.L. c. 268A.
Next, Fournier argues that he did not receive adequate notice that he was a state employee for purposes of the conflict of interest law, but this contention is unpersuasive and unsupported. The evidence shows that he was personally notified by the OSA of his status as a state employee for purposes of the conflict of interest law. In November 2015 and November 2016, he signed Acknowledgments of Receipt of the Conflict of Interest Law summary for state employees. (P 8; P 7; see also R 35). Fournier also completed the online Conflict of Interest Law training for state employees in June 2015 and November 2016. (P 10; P 9). As stated in EC-COI-99-7, there is no point in requiring him to read and presumably understand the requirements of the state's conflict of interest law if he is not subject to that law.
Furthermore, the Commission has contemplated the five-factor analysis and how it would apply to an individual who works for a private entity that has a contract with a public agency in decisions and orders, disposition agreements, and opinions,[7] as well as Advisory 06-01: Consultants and Attorneys Who Provide Services to Government Agencies May Be Public Employees Subject to the Conflict of Interest Law and additional resources issued by the Commission,[8] which are available on the Commission’s website. Publicly available precedent addressing a particular standard or issue is one possible form of notice to individuals, particularly where the standard or issue has been frequently addressed or articulated.[9]
Finally, Fournier argues that on the dates when he first contacted DCF and OCA, he had no obligations under the conflict of interest law because he had received a notice of termination of his position with the OSA. (Tr. 238). A notice of termination is not the same thing as a termination, however, and did not relieve him of any obligations he had while still working for the OSA.
We find that Petitioner has proven by a preponderance of the evidence that Fournier was a state employee for purposes of the conflict of interest law.
- The Remaining Elements of a § 4(c) Violation
General Laws c. 268A, § 4(c) provides: “No state employee shall, otherwise than in the proper discharge of his official duties, act as agent or attorney for anyone other than the commonwealth or a state agency for prosecuting any claim against the commonwealth or a state agency, or as agent or attorney for anyone in connection with any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest.”
In order to prove a violation of § 4(c), Petitioner must prove that Fournier was a state employee and also that Fournier, while not in the proper discharge of his official duties, acted as agent for someone other than the Commonwealth or a state agency in connection with a particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest.[10]
- While not in the proper discharge of his official duties
We find that Fournier’s communications with DCF and OCA were not in the proper discharge of his OSA official duties. Fournier states in his own brief that he “never approached anyone in any official capacity.” (R.Br. 5).
- Fournier acted as agent for someone other than the commonwealth or a state agency
To act as agent “within the meaning of the conflict law is ‘acting on behalf of’ some person or entity, a factor present in acting as spokesperson, negotiating, signing documents and submitting applications.” In the Matter of Richard L. Reynolds, 1989 SEC 423, 427 (citation omitted). The evidence supports a finding that Fournier was acting as agent for Riscovery when he communicated verbally and in writing with DCF and OCA.
Fournier’s consistent use of “we” in his email and voicemail communications to DCF and OCA show that Fournier was referring to his Riscovery colleagues and acting as Riscovery’s spokesperson during those communications with the state agencies. As a corporation, Riscovery is a separate legal entity from Fournier. See Hanson v. Bradley, 298 Mass. 371 (1937).
As to Fournier’s verbal communications with DCF, the fact that FitzGerald sensed that he was getting a “sales pitch,” and Fournier’s discussion about “the background and experience of his colleagues” indicate that Fournier was acting on behalf of Riscovery and his Riscovery colleagues to pitch the company’s services. (Tr. 50, 54).
As for Fournier’s communications with OCA, Fournier sent an email to Williams on December 12, 2021 from his Riscovery email address in which he refers to Riscovery, and he copies his Riscovery colleagues at their Riscovery email addresses in a subsequent email to Williams. (P 14). In addition, he set up the meeting with the Child Advocate on January 3, 2018 with the understanding that at least one of his Riscovery colleagues would be in attendance with him. (P 14).
Fournier objects that when he contacted DCF, he was just searching for new employment. He “always felt that as soon as they gave [him] notice on 11/30, that essentially [he] was a free agent…. [His] outreach to DCF was literally trying to get another job.” (Tr. 238). Even if it were the case that Fournier was trying to find a next job opportunity for himself, it does not follow that, at the same time, he could not have acted as agent for someone else, namely Riscovery and his Riscovery colleagues, when communicating with DCF and OCA. Direct employment with DCF or OCA would be a “job,” and so would work that Fournier would obtain by way of acting as agent for Riscovery.
We also have considered Fournier’s contention that Riscovery was not capable of having a state contract.[11] A possible implication is that he could not have acted on behalf of Riscovery because it could not get the paid work he sought to get from DCF or OCA. Fournier’s communications with FitzGerald at DCF and with Williams at OCA indicate, however, that he was offering the services of Riscovery and his Riscovery colleagues, regardless of whether a state contract directly with Riscovery could be the result. Even if Riscovery ultimately could not have a contract directly with a state agency, this does not exclude the possibility that it or its members could be paid another way, for example, under the same type of arrangement that Jakal had with McInnis. In any event, it is the act of agency itself that § 4(c) prohibits, and proof of this element does not depend on what does or does not result from the act of agency.
Accordingly, we find that Petitioner has proved by a preponderance of the evidence that Fournier acted as agent for Riscovery in his communications with DCF and OCA.
- In connection with a particular matter.
“Particular matter” is defined as “any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.” G.L. c. 268A, § 1(k).
Upon consideration of the evidence, we agree with Petitioner that the relevant particular matter is the OSA’s determination that DCF should monitor MMIS data.
The Commission has concluded that “[e]ach decision or determination made by a state agency” constitutes a “particular matter unless an exemption applies.” EC-COI-89-8 (noting the express exclusion of general legislation within the definition of particular matter).
Fournier argues that Petitioner’s definition of “particular matter” is “flawed.” (R.Br. 6). Specifically, he contends that Petitioner states that the OSA made a “determination” that DCF should monitor MMIS data because “determination” is within the definition of “particular matter” as defined in G.L. c. 268A, § 1(k), but the OSA is not in fact able to make a “determination” about how DCF does its job. (R.Br. 6-8). Rather, Fournier contends that the OSA can only make recommendations and cannot make a “determination” that “DCF should monitor Medicaid data.” (R.Br. 6; Tr. 178-179). In support, Fournier notes that, in the Audit Report, when DCF responded to the OSA’s Recommendation, “DCF specifically said DCF will determine the feasibility, not the OSA.” (R.Br. 7; R 4, p. 15). Fournier argues that the OSA’s Recommendation cannot be a “determination” because the OSA does not have the authority to determine what DCF will do.[12] (R.Br. 6-8).
While it may be true that the OSA cannot direct what DCF will do, the OSA demonstrably can make its own determination about what DCF should do. Furthermore, the Commission has found that a “particular matter” may include a “recommendation.” See, e.g., EC-COI-89-26 (finding that if a former state Committee member approved or “recommended” that state agency funds be invested in a certain way, “that approval or recommendation would be considered a particular matter”); EC-COI-88-21.
We also find that Fournier’s communications with DCF and OCA were in connection with the identified particular matter because he was pitching Riscovery’s services to enable DCF to monitor MMIS data. It appears that Fournier himself acknowledged that he was contacting DCF in connection with the OSA’s determination, since one of the reasons Fournier contacted DCF was that the audit had identified certain issues with DCF. (P 1, p. 12). In his initial voicemail to FitzGerald, Fournier stated he was contacting FitzGerald because, “knowing that the audit was coming to an end and recognizing that there is no market solution available, we have teamed with the OSA's current director of data analytics... to re-engineer the audit software to be more DCF focused, more case management and caseworker friendly.” (P 20). Fournier’s touting of a customized solution for DCF and his acknowledgment that one reason he approached DCF was “the audit” shows that Fournier had the expectation that DCF would respond to the OSA’s Recommendation. (P 1, p. 12).
Fournier’s communications with OCA were also in connection with OSA’s determination that DCF should monitor MMIS data. The Audit Report concluded that DCF should monitor MMIS data “in order to ensure that it can identify, and investigate as necessary, medical occurrences that appear to be critical incidents involving children in its care,” and that DCF is required to inform OCA when children in DCF care are involved in critical incidents. (P 11, p. 1). Fournier stated that he “wanted to set up a meeting with [the] Child Advocate about a recent audit” when he first approached Williams’ cubicle (Tr. 98). In his follow-up email to Williams on December 12, 2017, he referenced “the recent Audit that used Medicaid data to analyze and report on Children at risk,” essentially made the same claims about the value of the “underlying principle, methodology and ability to assess and identify children at risk through Medicaid Claims data” that he had made to DCF, and indicated that Riscovery “would like to show you… how we have re-constituted the software to work for DCF and fit their needs.” (P 14). He indicated that he approached the Child Advocate in hopes that, “if we could get in front of her and DCF at the same time,” they could get her backing when they proposed to DCF “what we were going to prescribe.” (P 1, pp. 15-16).
- In which the Commonwealth or a state agency is a party or has a direct and substantial interest.
If any state agency has a direct and substantial interest in, or is a party to, a particular matter, then the prohibitions in § 4 apply, and it “makes no difference whether it is the regular state employee's own state agency or another state agency that has the interest or is a party.” EC-COI-98-7. The Commission has found that the Commonwealth has a direct and substantial interest in a particular matter if it would require that public funds be spent, expose the Commonwealth to liability, and if it “implicate[s] government's rights and responsibilities.” EC-COI-97-2 (finding that “interests of the Commonwealth would include proceedings affecting the Commonwealth's legal rights or liabilities, pecuniary interests, property interests or proceedings where the Commonwealth would have a stake in the proceedings”).
Petitioner concludes that “the Commonwealth and/or two state agencies were parties to and had a direct and substantial interest in the monitoring of the MMIS data because such monitoring could help protect children, consistent with the . . . missions” of DCF and OCA. (P.Br. 15). We agree that the OSA, which made the determination that DCF should monitor MMIS data, as well as DCF and OCA, whose practices were the focus of the determination, had a direct and substantial interest in the particular matter.
Fournier argues that, even if the particular matter is the OSA’s determination that DCF should monitor MMIS data, the Commonwealth or a state agency did not have a direct and substantial interest in the matter because the Commonwealth did not pursue this course either at the time Fournier contacted DCF and OCA or during the next three years. (R.Br. 11-12). [D]uring the adjudicatory hearing, he asked FitzGerald about DCF’s interest in the solution he had proposed: “Would you say it was substantial interest in this solution I was proposing?” FitzGerald said, “I would say no. I mean, in terms of where the department likely would be on pursuing it, I think the answer would be no.” (Tr. 74-75). Fournier also asked FitzGerald, “three and a half years after the audit came out, does DCF have any policies or procedures, any systems, any capability to monitor Medicaid claims data on a daily basis to identify children at risk?” FitzGerald testified that he did not know. (Tr. 75). FitzGerald was “not personally aware” of “any policies, procedures, systems capability to monitor Medicaid data within DCF.” (Tr. 76).
In addition, Fournier points to a Public Records request he made on February 5, 2021, requesting “[T]he written DCF policies and procedures, if any, that require its staff to routinely monitor data from the Medicaid Management Information System in order to ensure that they can identify, and investigate as necessary, medical occurrences that appear to be critical incidents involving children in its care.” (R 5). On February 22, 2021, the Records Access Officer for DCF replied, “After a comprehensive search, DCF does not have in its possession any responsive records to your request.” (R 5).
Since the question is whether the particular matter was of direct and substantial interest to DCF and OCA, Fournier’s contention that DCF had little interest in following the OSA’s Recommendation in the Audit Report is worth considering. However, the fact that DCF did not ultimately establish written policies or procedures for monitoring MMIS data does not necessarily prove that it had no interest in the question about whether to go forward with such monitoring.
The focus must be on the interest that DCF and OCA had in the matter at the time that Fournier approached DCF and OCA about a way to address it. In the Audit Report, though DCF expressed doubt as to the feasibility of monitoring MMIS data and only thought the “process will serve as an ’after-the fact’ quality indicator,” it nonetheless stated it would “determine the feasibility of accessing MassHealth claims data in its MMIS system to identify medical treatment that may indicate a child was abused or neglected and should have been reported to DCF (either by our providers or by mandated reporters such as doctors and hospital staff).” (P 11, p. 15). The inclusion of the Auditor’s Finding and Recommendation, the Auditee’s Response, and the Auditor’s Reply in the Audit Report also indicates that DCF was expected to respond to OSA’s determination. Furthermore, FitzGerald’s inclination to call Fournier back “prompt[ly]” so as not to appear “non-responsive” if DCF was being offered “this great tool, this great support” by the OSA is a further indication that the OSA’s determination involves both OSA and DCF. (Tr. 49-51).
In addition, the “Note from Gov. Charlie Baker” addressed “To DCF Team Members” further demonstrates that the OSA’s determination was a particular matter that DCF was addressing. Governor Baker’s message, which the Commissioner of DCF relayed to DCF staff members through email, not only expressed how “very skeptical” the Governor was of “the Auditor’s focus on claims data as a primary tool to spot child abuse,” but also provided next steps in response to the OSA’s recommendation: “we will look into” whether there are “opportunities to use claims data as a secondary tool[].” (R 6). The Governor’s contemplated next steps presumably would be taken by or involve DCF.
Given OCA’s mission to “ensure that every child involved with state agencies in Massachusetts is protected from harm and receives quality services,” OSA’s determination was also a particular matter in which OCA had a direct and substantial interest. (P 11, p. 9). This conclusion is further supported by the statements of the spokesperson from Speaker DeLeo’s office regarding how “incredibly upset and troubled by the Auditor’s DCF report” Speaker DeLeo was and how “[t]he Speaker’s office has reached out to the Office of the Child Advocate to consider next steps.” (R 34).
Accordingly, we find that Petitioner has proved by a preponderance of the evidence that the OSA’s determination that DCF should monitor MMIS data was a particular matter of direct and substantial interest to the Commonwealth, DCF, and OCA. As all elements have been proven, we find that Fournier violated § 4(c).
- The Remaining Elements of a § 23(b)(2)(ii) Violation
General Laws c. 268A, § 23(b)(2)(ii) provides that “No current officer or employee of a state, county or municipal agency shall knowingly, or with reason to know . . . use or attempt to use such official position to secure for such officer, employee or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.”
Thus, in addition to proving by a preponderance of the evidence that Fournier was a state employee, Petitioner must also prove that he knowingly, or with reason to know, used or attempted to use his official position to secure an unwarranted privilege or exemption of substantial value for himself or others which was not properly available to similarly situated individuals in order to establish that Fournier violated § 23(b)(2)(ii).
- Fournier knowingly, or with reason to know, used or attempted to use his official position
After considering the evidence, we find that Petitioner has proven that Fournier knowingly, or with reason to know, used or attempted to use his official position in his communications with DCF and OCA.
We agree with Petitioner’s assertion that Fournier “insinuated a connection to the DCF audit and the tools used by the OSA as a hook to obtain business from DCF for Riscovery.” (P.Br. 19). The evidence shows that Fournier introduced himself through voicemail and in-person communications with FitzGerald and with Williams as a consultant from the OSA, and he also copied his OSA email address in email communications with both FitzGerald and Williams.[13] See In the Matter of Fayette Mong, 2019 SEC 2667 (finding that Mong, knowingly, or with reason to know, used her official position when she sought to arrange for Town inspectors to inspect a house that she wished to privately purchase by repeatedly identifying herself as a prosecutor for a state agency in her spoken and written communications with the Town’s Building Division); In the Matter of Steven Tompkins, 2015 SEC 2567 (finding that, by identifying himself as “Sheriff” and showing official identification of his public position, a state employee improperly used his official position to secure the removal of a political opponent’s campaign signs in violation of § 23(b)(2)(ii)).
In addition, in his first communication with FitzGerald, Fournier stated that he “along with two other individuals at the OSA are the primary architects of the data warehousing and software solution that was used in the recent audit” and that he would like to show FitzGerald “what we've done on this, specifically the work that we've done on the audit.” (P 20). He included largely similar language in his e-mail to Williams on December 12, 2017. These statements clearly could suggest that Fournier had had some responsibility for OSA’s audit of DCF.
Fournier testified that he did not, in fact, work on the audit. (Tr. 238). If his reference to his OSA work amounted only to “puffery” or suggestion, however, we agree with Petitioner that his invocation of his connection to the tools used on the DCF audit by virtue of his position as an OSA consultant was a use of his official position. In In the Matter of Lincoln Smith, 2008 SEC 2152, we found that where an Assistant Research Director for the Boston City Council misstated that he was a City Councilor and persuaded garage employees to address his claim of damage to his car more quickly than they ordinarily would, his invocation of his employment relationship with the Boston City Council was a use of his official position.
- To secure an unwarranted privilege or exemption for himself or others
The term “unwarranted” is not defined in G.L. c. 268A. The term is defined in Webster’s Third New International Dictionary as “lacking adequate or official support.” Webster’s Third New International Dictionary 2514 (2002). “Unwarranted” is further defined in The American Heritage Dictionary as “[h]aving no justification; groundless.” The American Heritage Dictionary, Fifth Edition 1901 (2011). The Commission has interpreted the term consistently with these definitions. See, e.g., EC-COI-98-2 (citing Webster's Third New International Dictionary (1964) and The American Heritage Dictionary, Second College Edition (1985)).
The Commission has found that the use of an official position to promote a personal or private interest is unwarranted for purposes of § 23(b)(2)(ii). See, e.g., Lincoln Smith, 2008 SEC 2152; In the Matter of Carole Foley, 2001 SEC 1008; Public Enforcement Letter 00-3, 2000 SEC 983. A public employee’s use of public resources for the benefit or promotion of a private business, including one owned or operated by the public employee, is unwarranted. See, e.g., In the Matter of Frederick C. Brack, 2019 SEC 2654; EC-COI-94-3 (finding that reference on a private business card to a certification only obtainable by virtue of a public position is unwarranted); EC-COI-91-6.
The conflict of interest law also does not define "privilege." Privilege is generally defined as "[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty." Black's Law Dictionary 1449 (11th ed. 2021). See also In the Matter of Frank Costa, 2001 SEC 1000, 1002 n.1 (quoting The American Heritage Dictionary (2nd Coll. Ed.) for the definition of privilege as "[a] special advantage, immunity, permission, right or benefit granted to an individual, class or caste").
In the context of § 23(b)(2), advantageous access to decision-makers may be an unwarranted privilege. The Commission concluded that state Senator Edward J. Clancy used his position to gain access to an ex parte meeting with state agency decision-makers to “make a ‘pitch’” on behalf of a constituent in order to influence the outcome of an adjudicatory proceeding about whether the constituent could keep his chiropractor’s license. Public Enforcement Letter 00-3, 2000 SEC 983, 985-986. The Commission found that, where such ex parte meetings would not typically occur, the advantageous access was an unwarranted privilege. Id.
The evidence shows that FitzGerald did not follow usual procedure when responding to Fournier’s voicemail. FitzGerald often did not return calls from IT companies pitching products – instead, one of DCF’s IT staff would typically make the initial call if DCF was interested in a product. (Tr. 52-53). There is also evidence that FitzGerald found Fournier’s voicemail so unusual that he had a meeting with leadership at DCF about it. (Tr. 45-49).
Fournier insists, however, that the timeline around his initial voicemail to FitzGerald and subsequent conversation with FitzGerald shows that FitzGerald did not have the meeting he said he had with DCF leadership and is therefore not credible. (Tr. 222). In a letter to the Commission, Fournier discussed “my DCF outreach on December 11th.” (P. 19, p. 2). At the hearing, however, Fournier testified that he “did not” leave a voicemail for FitzGerald on December 11. (Tr. 225). In a communication with the Petitioner, Fournier states: “On 12/12/17, I reached out to three DCF officials, I believe, and left a brief voice mail with each, introducing myself, my history with HHS and the SAO, and capacity for a solution.” (P 22, p. 2). Fournier introduced his own cell phone records to show that he left his voicemail on December 12 and FitzGerald called back four minutes later, leaving insufficient time for FitzGerald to have met with DCF leadership prior to calling Fournier back. (R 33; Tr. 222).
For his part, FitzGerald testified that Fournier’s “voicemail was December 11th, and we spoke on December 12th.” (Tr. 50). With regard to the timing, he stated that “this [was] four years ago” and “my exact recollection is a little bit, you know, a little bit unclear.” (Tr. 85; see also Tr. 62; Tr. 86-87). He also stated, however, that the sequence of events was “the initial voicemail, my consultation with leadership and then our more substantive call.” (Tr. 86).
Fournier’s own statements about the timeline are contradictory, and in the end, the most that the evidence about his phone records raises is a concern about the likelihood that a conversation between FitzGerald and DCF leadership could have happened. It does not disprove that such a conversation did occur. Based on the specificity of FitzGerald’s testimony regarding the sequence of events, we find credible FitzGerald’s statement that he met with DCF leadership, even if the evidence about the timing of the discussion is not conclusive.
We find that the access to DCF which Fournier was able to get by use of his official position at the OSA when pitching the services of his private company, Riscovery, was advantageous, and that it was an unwarranted privilege.[14]
Given the evidence in the record, we also find that Fournier gained advantageous access to OCA when pitching the services of Riscovery by using his official position and that such access was an unwarranted privilege. Upon hearing Fournier identify himself as working for the OSA, Williams “notified both my direct boss as well as the Child Advocate that a man from the State Auditor's Office wanted to set up a meeting,” which ultimately resulted in a meeting with the Child Advocate. (Tr. 98-99). Petitioner has further shown that it is more likely than not that Respondent gained access to Williams’ cubicle space by identifying himself as a state employee. Williams testified that Fournier’s interaction with her was not consistent with the typical process when a member of the public wishes to contact OCA. Specifically, the member of the public would first need to speak with the Elder Affairs executive assistant, and that person would then call Williams to let her know someone from the public wants to contact OCA. (Tr. 95-96). Fournier, however, appeared at Williams’ cubicle without Williams getting such a call from anyone at the Elder Affairs front desk, and no one was with Fournier when he approached her cubicle. (Tr. 96-97). Williams testified that she was “taken off guard” because OCA “do[es] not receive people from the public or from other state agencies, for that matter.” (Tr. 98).
- Which was of substantial value
Substantial value means having a value of $50 or more. 930 CMR 5.05; EC-COI-93-14 (“[R]e-affirm[ing] . . . that substantial value is $50 or more”). The Commission has found, however, that non-monetary or intangible advantages or exemptions may be found to have substantial value. See Steven Tompkins, 2015 SEC 2567 (finding that the posting of a candidate’s political campaign signs in places where they will be seen by the public and lack of the candidate’s opponent’s signs in those same spaces were substantially valuable benefits to the candidate); In the Matter of Joseph Turner 2011 SEC 2370, 2375 (where a foreman for a municipal Department of Public Works, Cemetery and Parks and Trees Division departed from usual procedures to make “pre-need” sale of cemetery plots available to his parents, the “peace of mind of knowing that they would be buried in the Town cemetery” was “not specifically quantifiable,” but was a benefit to his parents “plainly worth $50 or more”); see also, e.g., EC-COI-81-136 (unpaid faculty appointments constituted something of substantial value which could not be accepted by state employees); EC-COI-93-14 (finding that the term ”’substantial value’ has not been limited to cash gifts and has been interpreted to include . . . intangible benefits such as a desirable faculty appointment,” “access to hospital administrators,” and “use of the state seal to benefit private interests”) (citations omitted).
Fournier argues that “[a] meeting by itself, without any ‘official action’ that follows, has no value. A meeting not held has less. A quick response to meeting not held has even less.” (R.Br. 23).
We disagree. In In the Matter of William A. Burke, Jr. where the term “substantial value” was discussed in the context of § 3(b), the Commission found that substantial value “includes items which lack an immediately ascertainable cash value but which nonetheless possess substantial prospective worth and utility value.” In the Matter of William A. Burke, Jr., 1985 SEC 248, 251. In Burke, a member of the Massachusetts Public Health Council (“Council”) was also a consultant for the Lyons Company, which sought to pursue a supplemental life payroll deduction program with hospitals. Burke contacted CEOs at hospitals while the hospitals had significant matters before the Council, introduced himself in some instances as a Council member, and set up meetings with them. Some CEOs stated they ordinarily would not meet with an individual selling insurance and that such a call would be transferred to the personnel or benefits director of the hospital. Id. at 250. The Commission concluded that the “access” that Burke “obtained by virtue of his Council membership to the limited time of the [hospital] CEOs for his company’s presentation of its insurance package was of substantial value” because it “enabled the Lyons Company to bypass competition with other insurance agents before subordinate hospital personnel. The logical inference to be drawn is that the opportunity afforded to the Lyons Company to make its insurance presentation directly to a hospital CEO greatly enhanced the chance of a sale.” Id. at 251. Whether or not a sale was made was not determinative in the analysis of whether or not the unwarranted privilege was of substantial value.
Furthermore, in the matter involving state Senator Clancy, the ex parte meeting that the Senator secured was an unwarranted privilege of substantial value because “the chiropractor’s professional license was at stake in the adjudicatory proceeding.” Public Enforcement Letter 00-3, 2000 SEC 983, 986. “[E]ven in the absence of any evidence that your ‘pitch’ in any way actually helped the chiropractor, . . . the unwarranted privilege of making an ex parte argument on behalf of the chiropractor was itself of substantial value regardless of its ineffectiveness.” Public Enforcement Letter 00-3, 2000 SEC 983, 986 at n.6.
As Petitioner notes, given Fournier’s pay rate of $116.61 per hour as a consultant, the value of any potential business that Riscovery could obtain with the state would have been greater than $50. (P.Br. 20, n. 5). We find that Fournier gained advantageous access to his target audience to make a pitch for that business. The evidence shows that Fournier promptly obtained an audience with FitzGerald over the phone, even if not through an in-person meeting, and that the call was advantageous access because FitzGerald does not typically return sales calls himself. Fournier also skirted usual procedures to introduce himself to Williams and set up a meeting with the Child Advocate. We conclude that such access to his target audience’s limited time is of substantial value whether or not the opportunity for business with Riscovery came to fruition.
- Which was not properly available to similarly situated individuals
“Similarly situated individuals” is not defined in the conflict of interest law. Here, the similarly situated individuals would be other individuals or businesses who want to pitch their IT services to DCF or OCA. See Lincoln Smith, 2008 SEC 2152, 2161 (where Smith sought faster attention by garage personnel to repay him for damage to his car because he said he was a City Councilor, “similarly situated individuals would be those individuals who also believed that their cars had been damaged while in the care of [the parking management company]”).
We find that Petitioner has proven by a preponderance of the evidence that other businesses interested in doing business with a state agency could not use an official state title and position and insinuate a connection to a DCF audit and the tools used by the OSA when attempting to obtain business from DCF and OCA.
Because Fournier introduced himself as an OSA employee and insinuated that he had worked on the audit, and because this led FitzGerald and other DCF leadership to have concerns that Fournier could be approaching DCF on behalf of the Auditor, Fournier was able to get a response from DCF that was speedier than other competing businesses could have gotten from DCF, and from a higher-level employee. (Tr. 49, 51-53).[15]
Fournier introducing himself as an OSA employee when speaking with Williams also caused Williams to notify her supervisor and the Child Advocate that “a man from the State Auditor's Office” wanted to meet. (Tr. 98-99). The response Fournier received from OCA was more advantageous than other competing businesses could have gotten from the state agency.
For the above-stated reasons, we conclude and find that Petitioner has proved by a preponderance of the evidence that Fournier violated G.L. c. § 23(b)(2)(ii).
We have concluded that Petitioner has proven by a preponderance of the evidence that Fournier violated § 4(c) by communicating with DCF and OCA on behalf of Riscovery in an attempt to pitch the company’s services to those state agencies to use in monitoring MMIS data. We further conclude that Fournier violated § 23(b)(2)(ii) by using or attempting to use his consultant position at the OSA to gain access to DCF and OCA for the purpose of promoting his private business.
The public trusts public employees like Fournier to act with integrity when providing service to the government. There were proper ways, consistent with the conflict of interest law, for Fournier to pursue his next paid job. For example, provided that Fournier did not have official authority over, or official dealings with, those at DCF or OCA, he could have submitted a resume, even if unsolicited, to DCF or OCA, which would have provided information about the work he had done at the OSA. Job applicants may always tout their past work experience as a reason to be considered for future employment. As a state employee, however, Fournier could not insinuate that OSA had an interest in having him provide services to DCF or OCA.[16]
In addition, had Fournier waited a mere few weeks until his job with OSA had ended, and so long as he did not violate restrictions that apply to former state employees, he could have approached DCF or OCA on behalf of Riscovery.[17] He could not act on behalf of another entity in relation to a state matter, however, until he no longer provided service as a state employee.
Regarding the civil penalty, the Commission retains the discretion to adjust the civil penalty in recognition of mitigating or aggravating circumstances in individual cases. In the Matter of Owen McNamara, 1983 SEC 150. The Commission considers the totality of the circumstances when there are reasons for assessing a penalty lower than the statutory maximum. In the Matter of Daniel Duquette, 2010 SEC 2320; In the Matter of C. Joseph Doyle, 1980 SEC 11; In the Matter of Henry M. Doherty, 1982 SEC 115.
Fournier received notice that he was subject to the conflict of interest law. Through conflict of interest law online trainings for state employees and Acknowledgments of Receipt of conflict of interest law summaries for state employees, which he signed, he was made personally aware that he was considered a state employee. The SOW states “[a]t no time” is a Resource an employee of the Agency or the Commonwealth but, as previously articulated, the fact that an individual is not regarded as a state employee under areas of law such as labor, employment, or taxation, does not preclude that individual from being regarded as a state employee for purposes of the conflict of interest law. Though the language in the SOW may, by itself, be a source of confusion, the forms of notice Fournier received should have indicated to him that he, in fact, had obligations as a state employee under the conflict of interest law. He could not close his eyes to the facts that would have informed him of his conflicts. Public Enforcement Letter 00-2, 2000 SEC 969, 971. Fournier ignored his conflict of interest law training and sought new employment or business opportunities for Riscovery by means that are not permissible under the conflict of interest law. Such circumstances ordinarily would lead us to impose a civil penalty.
It appears, however, that Fournier received advice from an attorney at the OSA. Fournier testified during the hearing that he “was told by the acting attorney [sic] . . . that I was freely engaged to [sic] these activities. And until and up to the point where a contract might materialize itself, then I was free to engage in those discussions. And I need not bring anyone involved into it until that manifested itself in something more than a potential meeting.” (Tr. 187-188).[18]
Only advice from the State Ethics Commission may be binding on the Commission in an adjudicatory proceeding. G.L. c. 268B, § 3(g). We note, however, that in some instances, we have regarded reliance on advice of government counsel, particularly if incorrect, as a mitigating factor. See, e.g., In the Matter of Paul T. Hickson, 1987 SEC 296, 298 (finding that a reduction of the penalty amount was appropriate given that Respondent, a city employee, relied on incorrect legal advice from the City Solicitor for at least a period of time); cf. In the Matter of Mark P. Reed, 1997 SEC 860, 861 n.3. In one instance, the Commission found that a municipal employee’s reliance on his own mistaken interpretation of advice from town counsel was a mitigating factor. See In the Matter of Robert Lavoie, 1987 SEC 286, 287 (reducing penalty where a municipal employee “showed sensitivity” to a conflict issue by seeking advice from an employee of a license-issuing agency and from town counsel, and misinterpreted the advice from town counsel by reasons of receiving “bad advice” from the employee).
In Fournier’s case, there was evidence only as to his interpretation of the advice he received from OSA counsel rather than the substance of the advice itself. Given the circumstances, we credit his interpretation of the advice he received and regard such reliance as a mitigating factor.
In addition, while we do not take the result of Fournier’s conduct into account in concluding that he violated § 4(c) and § 23(b)(2)(ii), we may consider the result when assessing a civil penalty. On the evidence presented in this particular case, while Fournier violated the conflict of interest law, he and Riscovery did not accrue any benefit, financial or otherwise. Neither he nor Riscovery obtained any paid work as a result of the violations. No other individual or business was actually barred from pursuing or taking a governmental opportunity by reason of Fournier’s attempt to get future business on behalf of Riscovery. While governmental time and attention was spent on conversations or meetings that should not have occurred under the circumstances, there was no further harm to the public or the Commonwealth. For example, unlike Burke and Senator Clancy, Fournier did not have leverage over the decision-makers whom he approached, and he was not in a position to make future decisions affecting DCF or OCA after improperly using his state position to get advantageous access to them on behalf of Riscovery.
While we do not suggest that, going forward, only situations involving financial gain warrant civil penalties, we find that an assessment of no civil penalty is appropriate on the specific facts of this case.
DATE AUTHORIZED: September 15, 2021
DATE ISSUED: September 29, 2021