| Date: | 10/19/2022 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 20-0003, 20-0004, 20-0005 & 20-0006 |
| Location: | Boston, MA |
| Referenced Sources: | G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011 |
This consolidated matter arises from an arrest report prepared by a Massachusetts State Police (“MSP”) Trooper relating to his October 16, 2017 arrest of Alli Bibaud (“Bibaud”), the daughter of Massachusetts Judge Timothy Bibaud (“Judge Bibaud”). At all times relevant to the allegations, Respondents held the following positions: Susan Anderson (“Anderson”) was an MSP Major and Commander of C Troop; Joseph D. Early, Jr. (“Early”) was the District Attorney for the Middle District, also known as the Worcester County District Attorney, and the chief law officer in the Middle District; Richard McKeon (“McKeon”) was the MSP Colonel and Superintendent; and Jeffrey Travers (“Travers”) was the Senior First Assistant District Attorney (“Senior First Assistant”) for the Worcester County District Attorney’s Office.
Petitioner alleges each Respondent violated G.L. c. 268A, § 23(b)(2)(ii) by using their official positions in various ways to have Bibaud’s arrest report revised to remove embarrassing statements including sexually explicit statements attributed to her, as well as a statement that her father was a judge, and/or attempting to have the report replaced in the court’s file with a revised report which would avoid embarrassment, harm to reputation, and the cost to Judge Bibaud and/or his daughter to rehabilitate their reputations.
Petitioner further alleges that in doing so, each Respondent violated G.L. c. 268A, § 23(b)(3) by acting in a manner which would cause a reasonable person with knowledge of the relevant circumstances to conclude that they were likely to act as a result of Judge Bibaud’s rank, position or undue influence, and additionally, in the case of Anderson, that any person could improperly influence her or enjoy her favor in the performance of her official duties.
On June 24, 2020, Petitioner initiated these proceedings by filing an Order to Show Cause (“OTSC”) against Anderson, Early, McKeon, and Travers. Each Respondent filed an Answer denying any violations and asserted affirmative defenses. These matters were consolidated pursuant to 930 CMR 1.01(6)(f) by order of the Presiding Officer dated August 31, 2020. Respondents thereafter filed numerous dispositive motions,[1]/ all of which were referred by the Presiding Officer to the Commission. The Commission denied each dispositive motion after a full review thereof, including oral argument.
An adjudicatory hearing was held in-person before the Presiding Officer and remotely via videoconference on April 13-15, April 20-22, and 27-29, 2022. All parties were represented by counsel. A total of thirteen witnesses, four of whom were Respondents, testified at the hearing. Sixty-three exhibits were admitted into evidence. Closing arguments were made before the Presiding Officer on April 29, 2022.[2]/ All parties subsequently filed post-hearing briefs.
In rendering this Final Decision and Order, each undersigned member of the Commission has considered the testimony of the witnesses at the adjudicatory hearing, the evidence in the record, and the arguments of the parties.
At all times relevant to the allegations, Anderson, Early, McKeon, and Travers were state employees subject to the conflict of interest law. On October 16, 2017, Ryan Sceviour (“Sceviour”), an MSP Trooper, arrested Bibaud and subsequently prepared an arrest report[3]/ which contained embarrassing statements including sexually explicit statements attributed to Bibaud, as well as a statement that her father was a judge, referred to herein collectively for convenience as the “Statements.”[4]/
After his draft arrest report was approved by an MSP Sergeant, Sceviour printed out the complaint application with the arrest report narrative attached,[5]/ in accordance with the practice of the MSP, made copies of the arrest report as well as other documents, and put together the arrest packet for submission to the Worcester District Court by the MSP court officer. On October 17, 2017, a clerk-magistrate found probable cause to issue a criminal complaint against Bibaud for operating under the influence of (“OUI”) drugs and OUI liquor.
On October 17, an attorney, who had made a limited appearance on behalf of Bibaud, filed a motion under the Uniform Rules on Impoundment Procedure seeking to impound the MSP incident report [arrest report] and statement of facts on the grounds that “the defendant’s right to a fair trial would be at risk from prejudicial pretrial publicity should those records not be impounded.” The Assistant District Attorney present at the hearing took no position on the motion. The motion was allowed by the court until the next court date scheduled for October 30, and was served on the MSP for its keeper of the records.
Travers was notified of Bibaud’s arrest by a text message from an Assistant District Attorney at approximately 7:23 a.m. on October 17. As part of his responsibilities as Senior First Assistant, all cases identified as a potential conflict for the office were referred to Travers for evaluation as to whether there was a conflict and how the office would respond. Bibaud’s case involved a possible appearance of a conflict because she and Judge Bibaud had worked in the District Attorney’s Office. Travers previously was involved with the assignment of a special prosecutor to handle Bibaud’s case involving her May 2017 arrest for drug possession.
Travers sent a text message at approximately 7:51 a.m. on October 17 to Early notifying him that Bibaud had been arrested for OUI the night before. Later that day, after receiving Bibaud’s file, which included a copy of the endorsed motion to impound, Travers made a copy of the arrest report and left it for Early. Travers subsequently discussed it with Early and informed him that the report with the Statements had been impounded. On that same day, after discussion with Travers, Early decided to refer the case to another District Attorney’s Office for prosecution because he wanted the public to believe that no one was getting any “partial” treatment.[6]/
Early has known Judge Bibaud since the 1990s. Prior to Early’s election, they sometimes ran in the same circles socially and Early had attended a Cape Cod golfing trip in the early 1990’s organized by Judge Bibaud.
The Bibauds previously had worked in the Worcester County District Attorney’s Office under Early. Alli Bibaud was a Victim Witness Advocate from 2010 to 2013. Prior to assuming the bench, Judge Bibaud was an Assistant District Attorney under Early’s predecessor and then under Early. After Early was elected as District Attorney in November 2006, he passed over then Assistant District Attorney Bibaud and hired someone else as his First Assistant. As a result of this and Alli Bibaud’s departure from the office, many years later in October 2017, Early and Judge Bibaud’s relationship was “friendly, polite, courteous” in public, but otherwise, it was “very strained” and “poor.”
Travers also worked in the District Attorney’s Office at the same time as the Bibauds. Travers and then Assistant District Attorney Bibaud worked in different areas of the office and neither supervised the other. Travers worked in a different building from Alli Bibaud and did not have any cases with her, although she did provide him with translation assistance on one occasion. Travers did not socialize or have any personal relationship with either Judge Bibaud or his daughter.
On the day he learned of Bibaud’s arrest, Early called McKeon about the arrest report. McKeon had previously been appointed by Early and served under him as the Unit Commander of the State Police Detectives Unit (“CPAC”) in the Worcester County District Attorney’s Office. Early and McKeon were good friends who had traveled together twice to Florida. McKeon had a great deal of respect for Early.
McKeon knew Judge Bibaud from when he was assigned to the Worcester CPAC. McKeon has not spoken to Judge Bibaud in twenty years and has no personal or familial relationship with him. McKeon has never met Alli Bibaud.
Early thought “the judges were going to be kind of mad over this,” “were pretty upset about this and the language in the report,” and “were going to be a little bit upset the way that one of their judges’ daughters had been handled.” He “didn’t know if they were going to place the Early and McKeon spoke multiple times by phone between October 17 through October 19. The first time they spoke was October 17 when Early called McKeon and asked him if he had heard about Bibaud’s arrest and had seen the arrest report. Early asked, “how about that report” to which McKeon replied, “what report.”[7]/ Early told McKeon about Bibuad’s arrest and they discussed, among other things, a statement in the arrest report as to how Bibaud had procured the drugs, which had made Early’s “head explod[e].”
With regard to the arrest report, Early said to McKeon, “words to the effect of are you doing anything about it,” which McKeon understood to be asking him what he was going to do about the statement in the arrest report that had made Early’s head explode. McKeon told Early he could not do anything about the arrest report because “that ship had sailed,” meaning it had already been filed with the court and a criminal complaint had been issued against Bibaud. Early told McKeon that he “did not think it was too late to do something.” He also told McKeon that he was going to file a motion to redact.
McKeon viewed Early’s call as a complaint from a District Attorney which he felt was something he should take notice of and look into. He did not typically get calls from a District Attorney complaining about a report. Neither McKeon in his capacity as Colonel nor Early recalled ever having another conversation with each other about the arrest report of a specific arrestee.
On October 19, McKeon called Early to tell him that a new report was coming down. Early responded, “Good for you, Rick. I thought you had to do something.” Early called Travers to inform him that the MSP were going to be delivering a new report in the Bibaud matter.
On October 19, McKeon issued an order through the chain of command at the MSP, which is the oldest extant paramilitary police organization in the country, requiring Sceviour who was off duty at home to return to work to redact two sentences containing Bibaud’s quoted statements from the arrest report. McKeon also indicated he wanted observation reports[8]/ issued to both Sceviour and the MSP Sergeant who approved the arrest report. Sceviour traveled that day from his home to the Holden Barracks where he was issued the observation report and met with Anderson.
Anderson was on vacation at the time Bibaud was arrested. She received a text informing her of the arrest, but did not respond or take any action regarding Bibaud until she received the order from McKeon through the MPS chain of command on October 19. Anderson had never met either Judge Bibaud or Bibaud.
During Sceviour’s meeting with Anderson on October 19, she provided him with the information he was supposed to redact from the arrest report. Sceviour made statements to Anderson that “it wasn’t fair and he didn’t think it was right” and “[i]f it wasn’t who she was, [the daughter of a judge,] it wouldn’t be happening.” Anderson agreed with him. If she had failed to comply with the order, Anderson would have been disciplined.
As ordered, Sceviour revised the arrest report, the second page of which included a statement “REVISED ON OCTOBER 19, 2017.” [9]/ Later that day, he delivered the revised report to the Worcester District Attorney’s Office where Travers received it. Sceviour’s overtime pay for October 19 exceeded $50.
The next day, October 20, Early called Chief Justice Dawley and they discussed a motion to redact. The Chief Justice told him such a motion would have to be filed with the clerk and heard in open court on the record by a judge. During the week of October 17, Early had discussed redaction with his own attorney and was looking at the possibility of redaction.
At some point on October 20, Early called Travers and told him to go to the Worcester District Court Clerk’s Office to see what’s going on with Bibaud’s case. After receiving Early’s call, Travers opened the sealed envelope from the MSP he had received the day before which contained the revised report and took it with him when he went to the Clerk’s Office and spoke to Acting Clerk Magistrate, Brendan Keenan (“Keenan”) in Keenan’s office. Travers and Keenan discussed the arrest report and Travers let Keenan know he had received a revised report from the MSP. Travers did not show or provide a copy of the revised report to Keenan.
Instead of filing a motion to redact, Travers asked Keenan either if he could “accept” the revised report or whether he could “offer” it to him. When Keenan was first asked what Travers wanted to do, Keenan testified: “To have – he had a report, I believe, I’m not sure, that he wanted to replace with the report that I had.” Keenan further testified similarly that “I thought he wanted me to just take it and swap it.”[10]/
Keenan told Travers that he could not accept the revised report because the statement Keenan had was the one on which probable cause was found and it was the record of the proceeding. Keenan suggested to Travers that Travers could move to redact the original report which, after thinking about it for a minute, Travers told Keenan that it “sounded like a good idea.” Keenan then went upstairs in the courthouse to speak to Judge David Despotopulos (“Judge Despotopulos”).
Judge Despotopulos was speaking with Early when Keenan arrived. Keenan told Judge Despotopulos “Your Honor, ADA Travers is down in my office, and he wanted to change a report.” Keenan further testified he told the Judge and Early that we or he couldn’t do that. Early responded, “Oh, you can’t do that.”[11]/ After Early left, Keenan then went out to bring Travers into the judge’s lobby, and Travers asked the Judge if he would enter an oral motion to redact. Thereafter, Keenan and Travers returned to Keenan’s office.
Upon returning to his office, Keenan made a copy of the original report which was impounded and gave it to Travers along with a black marker. Travers then marked off portions of the Statements. Later that same day, October 20, Travers made an oral motion to redact before Judge Despotopulos stating that the redactions were “appropriate, given the Commonwealth’s ethical obligation to avoid unnecessary pretrial publicity which would be prejudicial to the defendant,” were “extraneous to anything applied to the finding of probable cause, and “purely prejudicial potentially” to Bibaud.[12]/ The court allowed that motion and lifted the motion to impound. The original unredacted report remained in the file, sealed. Early was unaware Travers had moved to redact until after the fact.
Bibaud’s case was transferred to the Framingham District Court in Middlesex County on October 23. Travers sent the original police report, the revised report delivered by Sceviour (but not filed with the court), and the original unredacted probable cause statement (with a note indicating he had made redactions to it) to the special prosecutor in Middlesex. There was never a change to any of the charges initially brought against Bibaud. The Statements were made public in violation of the impoundment order on or about October 26 by an online blogger who had obtained a copy of Bibaud’s original arrest report. Other media reports followed.
Petitioner alleges that the following conduct by each Respondent violated both § 23(b)(2)(ii) and § 23(b)(3).
As to Early, Petitioner alleges in the OTSC against him that as District Attorney, he advised McKeon that McKeon could revise the arrest report to remove the Statements and directed Travers to go to the Worcester District Court Clerk’s Office and replace the original report in the court’s files with the revised arrest report. Petitioner alleges that in doing so, Early violated § 23(b)(2)(ii) by using his official position to secure for Judge Bibaud and/or his daughter the unwarranted privilege of having the arrest report revised or replaced, which was of substantial value and which was not properly available to similarly situated individuals. It further alleges that in doing so, Early violated § 23(b)(3) by knowingly, or with reason to know, acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances to conclude that he was likely to act or fail to act as a result of rank, position or undue influence of any party or person.
As to McKeon, Petitioner alleges in the OTSC against him that as the MSP Colonel, he issued an order through the chain of command that Sceviour remove the Statements from the arrest report. Petitioner alleges that in doing so, McKeon violated § 23(b)(2)(ii) by using his official position to secure for Judge Bibaud and/or his daughter, the unwarranted privilege of having the arrest report revised, which was of substantial value and which was not properly available to similarly situated individuals. It further alleges that in doing so, McKeon violated § 23(b)(3) by knowingly, or with reason to know, acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that he was likely to act or fail to act as a result of rank, position or undue influence of any party or person.
As to Anderson, Petitioner alleges in the OTSC against her that as an MSP Major and Troop Commander, she and a member of her command staff decided that the Statements would be removed from the arrest report and then ordered Sceviour to remove them. Petitioner alleges that in doing so, Anderson violated § 23(b)(2)(ii) by using her official position to secure for Judge Bibaud and/or his daughter, the unwarranted privilege of having the arrest report revised to remove the Statements, which was of substantial value and which was not properly available to similarly situated individuals. It further alleges that in doing so, Anderson violated § 23(b)(3) by knowingly, or with reason to know, acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that she was likely to act or fail to act as a result of rank, position or undue influence of any party or person or that any person can improperly influence her or enjoy her favor in the performance of her official duties.
Finally, as to Travers, Petitioner alleges in the OTSC against him that as Senior First Assistant, he went to the Worcester District Court Clerk’s Office and attempted to replace the original arrest report in the court’s file with the sanitized, revised report. Petitioner alleges that by doing so, Travers violated § 23(b)(2)(ii) by using his official position to attempt to secure for Judge Bibaud and/or his daughter, an unwarranted privilege of having the original arrest report in the court’s file replaced with the sanitized, revised report which was of substantial value and which was not properly available to similarly situated individuals. It further alleges that in doing so, Travers violated § 23(b)(3) by knowingly, or with reason to know, acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that he was likely to act or fail to act as a result of rank, position or undue influence of any party or person.
Petitioner must prove its case and every element of the alleged violations against each Respondent by a preponderance of the evidence. 930 CMR 1.01(10)(o)(2). The weight to be attached to any evidence in the record, including evidence concerning the credibility of witnesses, rests within the sound discretion of the Commission. 930 CMR 1.01(10)(n)3. In deciding these cases, the Commission must decide every issue of fact or law necessary to its Final Decision. 930 CMR 1.01(10)(o)(3).
A. The G.L. c. 268A, § 23(b)(2)(ii) Claims
G.L. c. 268A, § 23(b)(2)(ii) provides in relevant part that no state employee “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 . . . which are of substantial value and which are not properly available to similarly situated individuals.” In order to conclude that a Respondent has violated § 23(b)(2)(ii), Petitioner must prove by a preponderance of the evidence that the Respondent knowingly, or with reason to know: (1) used or attempted to use their official position; (2) to secure an unwarranted privilege for Judge Bibaud and/or his daughter; (3) which was of substantial value; and (4) which was not properly available to similarly situated individuals. If Petitioner failed to meet its burden as to any one element, the § 23(b)(2)(ii) claim cannot stand.
After a thorough and careful review of this case,[13]/ including consideration of the elements set forth above, for the reasons set forth below, we find that Petitioner has failed to meet its burden to prove the substantial value element of its § 23(b)(2)(ii) allegation against each Respondent. As this determination is dispositive of the claims, we do not address or make any findings as to any other element of the § 23(b)(2)(ii) allegations.
By its express terms, a § 23(b)(2)(ii) violation requires the unwarranted privilege be of “substantial value.” Substantial value is not defined in the conflict of interest law. The meaning of that phrase was determined by the Commission to be a value of $50 or more. EC-COI-94-4 citing Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976); EC-COI-06-04 (“Anything with a value of $50 or more is of substantial value for G.L. c. 268A purposes.”). A definition of substantial value was subsequently codified in the Commission’s regulations at 930 CMR 5.05, effective December 10, 2010.[14]/
Petitioner argues that substantial value exists in three ways: removal of the Statements from the arrest report would avoid embarrassment and harm to reputation for Judge Bibaud and/or his daughter and provide them with peace of mind (i.e., intangible benefits); the cost to Judge Bibaud and/his daughter to rehabilitate their reputations; and the cost of the collective time of the state employees involved in revising the arrest report to remove the Statements. These theories include both monetary components – the cost to rehabilitate one’s reputation and the cost of the collective time of the state employees – as well as non-monetary components – embarrassment, harm to reputation, and peace of mind.
As an initial matter, the Statements had been impounded at the request of Bibaud’s counsel on October 17, 2017, and were to remain impounded until at least the next court date on October 30, 2017. The allowance of the impoundment motion was served on the MSP for its keeper of the records. As a result, at the time the Respondents took the actions alleged, the Statements were not public. Thus, absent a violation of the court order, there was no risk of embarrassment, harm to reputation, cost to rehabilitate reputations or concern about peace of mind for either Judge Bibaud and/or his daughter. Further, Bibaud or her attorney could have filed a motion to extend the order of impoundment beyond October 30 or, in the alternative, filed a motion to redact as was ultimately done by Travers.
As to the alleged monetary cost to rehabilitate their reputations, there is no evidence in the record that either Bibaud or Judge Bibaud incurred or even contemplated incurring any costs to rehabilitate their reputations online or otherwise. Petitioner’s expert witness,[15]/ Jon Goldberg, testified about a phenomenon called the “Streisand effect” which is when efforts to try and change the information that is out there blows back and makes it much worse. It is equally likely that if and when the Statements became public, Alli Bibaud and Judge Bibaud would have chosen to do nothing so as to avoid this phenomenon.
Compounding the lack of evidence on this issue is Goldberg’s testimony that he could not opine as to the cost to either Bibaud to repair their reputation absent a release to the public.[16]/ He opined:
I could not – I could not look in isolation at an arrest report and say if this got out there, this is what it would require to rehabilitate the arrestee’s reputation, because from just a police report, I can opine on what might occur, but until news outlets and reporters and other parties, bloggers, et cetera, do something with it, it has not had a material impact on reputation, you know, or as I said, in the – you know, if the report itself somehow were to be findable online. But just based on a police report or an arrest report, I can’t quantify that damage until that damage is done. And until I quantify that damage, I can’t speculate on how many months and how many thousands of dollars it would take to address it.
Moreover, in this case, the very event Respondents allegedly sought to prevent – the release of the Statements – in fact, did occur. Despite the occurrence of this event, there is an absence of evidence in the record as to whether Bibaud or Judge Bibaud actually incurred any monetary cost to rehabilitate their reputations in the face of the leak.[17]/
As to the alleged monetary cost of the cumulative time spent by Respondents and other state employees to revise the arrest report, Sceviour’s overtime pay for October 19 exceeded $50. Petitioner further asserts that based on their 2017 salaries, it is reasonable to infer that the time Anderson, McKeon, Early, and Travers each spent on the arrest report, was also of substantial value.
In some previous cases, substantial value has been measured by the cost to the state when the use of an official position involved private gain to the state employee. For example, In the Matter of Michael Fredrickson, 2003 SEC 1156 (Disposition Agreement), the Board of Bar Overseers (“BBO”) General Counsel was found to have violated § 23(b)(2) by using his BBO office, work time, equipment, and subordinate’s time to prepare novels for publication. The “value of the time, help and state resources that Fredrickson obtained was worth well over $50, and therefore, of substantial value.” Fredrickson involved the use of state resources for his personal gain, including avoiding the cost he would have otherwise incurred had he expended his personal resources to prepare his novels for publication. In contrast to Frederickson, there is no evidence in the record as to any personal gain of a monetary nature for any Respondent or either Bibaud. Thus, we decline to use the cost of the cumulative state time as a measure of substantial value in this case.
Finally, in the Commission’s cases decided under § 23(b)(2)(ii) and its predecessor, § 23(b)(2), generally something of quantifiable monetary value was used to establish substantial value. See, e.g., In the Matter of Howard Hansen, 2017 SEC 2604 (amounts invoiced and approved well exceeded $50 and in aggregate exceeded $13,000). The Commission, however, has recognized the concept that a non-quantifiable or non-monetary value, referred to as both “substantial intangible value” and “intangible substantial value,” under appropriate circumstances may be sufficient to establish substantial value for purposes of § 23(b)(2)(ii). See, e.g., In the Matter of Marjorie Malone, 2012 SEC 2410 (Disposition Agreement) (satisfaction obtained by assistant assessor when retaliating against town officials by improperly raising their property assessments at a time when town was taking employment-related action against her was “an intangible, non-quantifiable benefit” worth $50 or more).
Many of the cases recognizing the concept of intangible value have included evidence or findings of fact of an actual or potential quantifiable monetary component. See, e.g., In the Matter of Joseph Turner, 2011 SEC 2370 (unwarranted privilege municipal employee provided to parents by allowing them to purchase cemetery plots pre-need was of substantial value both by gaining peace of mind knowing where they would be buried and avoidance of a $440 price increase and any subsequent price increases); In the Matter of Raymund Rogers, 2002 SEC 1060 (Public Enforcement Letter) (supervising police officer’s ability to have subordinate provide private transportation services for his family members was of significant value both monetarily, because it exceeded $50 in taxi cab costs and intangibly, because it provided family with on-call private transportation service); In the Matter of Jeffrey Fournier, 2021 SEC ___ (unwarranted privilege of state employee’s advantageous access to decision-makers at the Department of Children and Families and the Office of the Child Advocate to promote a private business was of substantial value because it enhanced his chances of obtaining potential business).
As to the intangible benefits alleged by Petitioner to constitute substantial value, there is no substantial evidence in the record as to whether Bibaud and/or Judge Bibaud had any concerns about embarrassment, harm to reputation or peace of mind regarding the Statements, particularly in light of the fact that Bibaud had been arrested twice in a little over a five-month period for drug related matters. As a result, in this case, Petitioner has failed to meet its burden to prove that the alleged intangible components are sufficient to satisfy substantial value. Petitioner’s failure to meet its burden here, however, does not preclude us from deciding in a future case with substantial evidence that an intangible such as reputation may constitute substantial value for purposes of a § 23(b)(2)(ii) claim.[18]/
Finally, despite the fact that Early discussed redaction with Chief Justice Dawley, McKeon, and even his own attorney, he filed no such motion and did not instruct Travers to do so. In fact, he was not aware that Travers had moved to redact until after Travers had done so. Although we have reached our determination as to the failure of proof on the substantial value element, thus defeating the § 23(b)(2)(ii) claims, we take this opportunity to note that to the extent there were any concerns about protecting Bibaud from prejudicial pretrial publicity in order to preserve her constitutional right to a fair trial, the better practice would have been to do so through judicial action by filing a motion to redact to avoid the specter of special or favorable treatment raised by this case.
B. The G.L. c. 268A, § 23(b)(3) Claims
G.L. c. 268A, § 23(b)(3) provides, in relevant part, that a state employee shall not “knowingly, or with reason to know: act 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 his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of . . . rank, position or undue influence of any party or person.” (emphasis added). The OTSC for Anderson includes both prongs of § 23(b)(3) whereas each OTSC for Early, McKeon, and Travers, includes only the prong of “likely to act or fail to act as a result of . . . rank, position or undue influence of any party or person.”
The purpose of the conflict of interest law “was as much to prevent giving the appearance of conflict as to suppress all tendency to wrongdoing.” Scaccia v. State Ethics Commission, 431 Mass 351, 359 (2000) (by accepting golf outings and dinners from various lobbyists whose clients had an interest in matters before him, Scaccia acted in a manner which would cause a reasonable person to conclude that he could be improperly influenced by the lobbyists in the performance of his official duties) quoting Board of Selectmen of Avon v. Linder, 352 Mass. 581, 583 (1967). Section 23(b)(3) is “concerned with the appearance of a conflict of interest as viewed by the reasonable person” and not whether preferential treatment was given. In the Matter of Raymond Hebert, 1996 SEC 800, 810. As the Commission noted in Hebert, in adopting this standard of conduct, the Legislature “focused on the perceptions of the citizens of the community, not the perceptions of the players in the situation.” Id. The Commission has chosen to interpret this statute as a “prophylactic measure” and, as the Supreme Judicial Court noted, the language of the statute accords with that interpretation. Scaccia, 431 Mass at 359.
In making its determination as to the existence of an appearance of a conflict, the Commission must consider whether “such an appearance is warranted, or conversely is dispelled, by the ‘relevant circumstances,’ that is, by the facts.” In the Matter of Matthew Amorello, 2009 SEC 2213, 2219 (although at first blush it might appear Amorello’s conduct created an appearance of favoritism toward his senior staff, there was insufficient evidence in the record to support it). One of the factors considered in the analysis of a § 23(b)(3) claim is whether there is an outside relationship between a respondent and another person. See Hebert, 1996 SEC at 810 (“The Commission has long held that § 23(b)(3) is applicable where a public employee does, or may perform, actions in his official capacity which will affect a party with whom he has a significant private relationship.”) Consistent with this approach, a § 23(b)(3) claim was dismissed based on the lack of an outside personal or social relationship. Amorello, 2009 SEC at 2219; In the Matter of James B. Triplett, 1996 SEC 827, 830. An additional factor may be whether a public employee’s actions were undertaken due to a particular person’s rank. See In the Matter of Paul M. Wormser and Thomas Jefferson, 2010 SEC 2303 (subordinate school superintendent violated § 23(b)(3) by negotiating reimbursements with a parent who was also a school committee member).
In order to conclude that a Respondent has violated § 23(b)(3), Petitioner must prove by a preponderance of the evidence that the Respondent knowingly, or with reason to know, (1) acted in a manner which would cause a reasonable person having knowledge of the relevant circumstances to conclude (2) that they were likely to act or fail to act as a result of rank, position or undue influence of any party or person (and additionally in the case of Anderson, that any person can improperly influence her or unduly enjoy her favor in the performance of her official duties).[19]/ Determining whether Petitioner has met its burden requires a review of whether the relevant circumstances, if known to a reasonable person, would lead them to the conclusions required to establish a violation.
For the reasons set forth below, we find that Petitioner has failed to meet its burden to prove a violation of § 23(b)(3) against each Respondent based on the evidence in the record as to the relevant circumstances. Those relevant circumstances include the nature of the relationship (or lack thereof) between any Respondent on one hand and Bibaud or Judge Bibaud on the other.
As to Early, although the Bibauds worked in his office for a period of time, Bibaud had left her job there in 2013 and there is no evidence of any relationship or interaction between Early and Bibaud after she left the District Attorney’s Office. At the time of the relevant events in October 2017, the relationship between Early and Judge Bibaud had become strained a decade before. The evidence of any personal or social relationship between Early and Judge Bibaud was from almost two decades ago when they sometimes traveled in the same circles socially and Early attended a golfing trip on Cape Cod organized by Judge Bibaud.
Furthermore, based on the evidence of his own statements, Early acted out of a desire to protect himself and/or the MSP rather than to show any favoritism or preferential treatment to Judge Bibaud and/or his daughter. Early thought the judges were going to be “ kind of mad” and “pretty upset” about the language in the report and more importantly, he was concerned that they were going to blame him or the MSP for it.
Although Travers also worked in the District Attorney’s office at the same time as Bibaud and Judge Bibaud, there is no evidence that he had any friendship or personal relationship with or socialized with either Bibaud while they worked for the District Attorney’s Office or any time after they left the office.
As to the MSP Respondents, although McKeon knew Judge Bibaud while working at the Worcester CPAC, he has not spoken to Judge Bibaud in twenty years, and he has no personal or familial relationship with him. McKeon had never met Bibaud. Anderson had never met either Bibaud or Judge Bibaud.
The fact that Early, Travers, McKeon, and Judge Bibaud are former colleagues and that they all (including Anderson) worked in different areas of the criminal justice system in October 2017 is not a sufficient circumstance to meet Petitioner’s burden of proof that a reasonable person could conclude that they might act because of rank, position or undue influence of Judge Bibaud and/or Bibaud, particularly in the absence of any personal or social relationship or, in the case of Early, any recent one.
Finally, there are other relevant circumstances as they relate to the MSP Respondents. As to Anderson, the MSP operates as a paramilitary police organization. Failure to comply with an order through the chain of command from the Colonel could have been the basis for Anderson to be disciplined. As to McKeon, he had a great deal of respect for Early, who was his former boss, and he perceived Early’s phone call to be a complaint from a District Attorney which he did not typically receive. It is more likely that he acted because of this rather than because the matter involved the daughter of a judge.
Viewed in their totality, we find that Petitioner has not met its burden of proving that a reasonable person who was aware of the relevant circumstances could conclude that any Respondent was likely to act because of the rank, position, or undue influence of Judge Bibaud and/or his daughter or that additionally as to Anderson, any person could improperly influence her or unduly enjoy her favor in the performance of her official duties.[20]/
For the reasons stated above, Petitioner has failed to prove by a preponderance of the evidence that Anderson, Early, McKeon, or Travers violated either § 23(b)(2)(ii) or § 23(b)(3). Accordingly, the matters against Anderson, Early, McKeon, and Travers are hereby DISMISSED.[21]/
DATE AUTHORIZED: October 14, 2022
DATE ISSUED: October 19, 2022
Maria J. Krokidas
Josefina Martinez
Wilbur P. Edwards, Jr.
Eron Hackshaw
Concurring (Kantrowitz). While I concur with the conclusion of my fellow Commissioners, I write separately to address certain points.
As indicated above, to find a violation of G.L. c. 268A, § 23(b)(2)(ii), Petitioner essentially must prove three, among other, key elements: (1) substantial value; (2) not properly available to similarly situated individuals; and (3) unwarranted privilege. In my view, Petitioner failed to prove any of the three.[22]/
Substantial value. While the opinion as to the § 23(b)(2)(ii) claims rests on this element, I note that the statute does not define substantial value while a subsequent regulation defines it as $50 or more.[23]/ Over the course of time, this element, without either legislative, regulatory, or judicial review,[24]/ has been expanded to include a litany of so-called intangible benefits. These expansions, and the one proffered by Petitioner in this case, have the potential to swallow this element. For instance, in nearly every case, reputation or peace of mind may be present. So too, due process considerations are at play in that one who engages in certain conduct may not be on notice that such conduct is prohibited.[25]/
Similarly situated individuals. Petitioner argues that “similarly situated individuals are arrestees who make statements that include sexually explicit or otherwise objectionable language that are recorded in an arrest report.” This seems to be too broad. In my view, similarly situated individuals, in this case, are arrestees whose constitutional rights to a fair trial are jeopardized due to pretrial publicity. The greater the likelihood that the press has an interest in a case, either due to the notoriety of the one arrested or the specific facts of the case, the greater the need for prosecutors to act quickly to protect the rights of the defendant.[26]/ [27]/
To address this prophylactically, Early, nearly a decade ago, trained and requested that local police departments, after writing a police report, not attach that report to the application seeking a criminal complaint, but rather a barebones statement of facts/probable cause statement, addressing the elements needed to establish probable cause. Direct quotations and even admissions are eschewed unless necessary to establish probable cause. A police report is ordinarily not a public record (but will be provided to the defense as was done here) while a probable cause statement is. In acting in this manner, the rights of the defendant are, at least theoretically, protected. Such a practice has since been adopted by the District Attorneys throughout the Commonwealth. While preferred, police departments are not mandated to so act.[28]/
Unwarranted privilege. Petitioner claims that the unwarranted privilege was having the highly charged comments removed and the report replaced which were not properly available to similarly situated individuals. Similarly and simply, it is not an unwarranted privilege to be afforded one’s basic constitutional rights. See Sheppard v. Maxwell, 384 U.S. 333 (1966); Supreme Judicial Court Rule 3:07: Rules of Professional Conduct, 3.6 and 3.8. Prior to arraignment, the attorney for Bibaud successfully moved to impound the MSP incident report and the statement of facts. At a subsequent hearing, the motion of Travers to redact the probable cause statement was also allowed. Both rulings were premised out of concern for improper pretrial publicity.
There were three police reports at play here - the original,[29]/ (Ex. 1), the revised one, (Ex. 2) and the redacted one[30]/ (Ex. 3). When the case was transferred to another District Attorney’s Office, all three reports were provided.
Once the original police report was illegally publicly released in violation of the impoundment order, a firestorm of publicity ensued,[31]/ with the Governor, Attorney General, and even a local United States Congressman weighing in, stating “When the public safety is involved in all these cases, if you’re harboring someone who is a drunk driver and you’re shielding them from the legal consequences of their misconduct, you are putting a drunk driver back on the street and you’re distorting the legal process.” While the comments are laudatory, they are inapplicable here as the facts clearly established that the prosecution of an allegedly drunk and heroin impaired driver was in no way compromised by the actions of Respondents.
In sum, in my view, the evidence presented at the hearing demonstrated that the actions of Respondents were motivated to protect the rights of a criminal defendant[32]/ who suffered from substance abuse. The evidence also revealed that Early was sensitive to the sufferings of such individuals and implemented forward thinking policies to address this serious and on-going situation.[33]/
In the end, a judge authorized what Respondents sought - replacing (not destroying) the original police report with a redacted one deleting prejudicial and unneeded language. In hindsight, the better way to accomplish what Respondents sought was to simply go into court and not initially to the Clerk. If this had been done, we would not be here today.
R. Marc Kantrowitz
