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Decision

Decision In the Matter of Darryl Clark

Date: 08/11/2014
Organization: State Ethics Commission
Docket Number: 12-0017

Decision and Order

Appearances:

Candies Pruitt-Doncaster, Esq. 
Counsel for Petitioner

Patrick M. Troy, Esq.                                    
Counsel for Respondent

Commissioners:  Dortch-Okara, Trach and Quinlan[1]

Presiding Officer:  Commissioner Regina L. Quinlan

I. Introduction and Allegations

This matter concerns allegations that Respondent Darryl Clark, a Massachusetts Bay Transportation Authority (“MBTA”) Painters Foreman, solicited loans from two temporary MBTA painters who were his subordinates: a $500 loan from Thomas Steiner, and a $300 loan from Alexandre Gomes, in violation of the conflict of interest law, G.L. c. 268A, §§ 23(b)(2)(i)[2] and 23(b)(2)(ii).[3]

II. Procedural History

This matter began on December 12, 2012, with Petitioner’s issuance of an Order to Show Cause alleging that Clark violated G.L. c. 268A, §§ 23(b)(2)(i) & (ii) in 2010.  Clark answered on February 7, 2013 denying the alleged violations.  On March 11, 2014, the adjudicatory hearing in this matter was held before Commissioner Quinlan.  Two documents were marked for identification; no exhibits were admitted into evidence.  Petitioner submitted Facts Deemed Admitted (“Admissions”).[4]  Petitioner called Steiner and Gomes as witnesses.  Clark testified as his sole witness.  Both parties made closing arguments before Commissioner Quinlan at the conclusion of the adjudicatory hearing and subsequently filed briefs. 

In rendering this Decision and Order, each undersigned member of the Commission has considered the testimony of the witnesses at the adjudicatory hearing, the evidence in the public record and the arguments of the parties.

III. Findings of Fact

The Undisputed Facts

In 2010, Clark was a full-time, paid employee of the MBTA working as a Painters Foreman who supervised the painting of MBTA train cars.  His job duties included giving assignments to the MBTA temporary painters.  Thomas Steiner (“Steiner”) and Alexandre Gomes (“Gomes”) began working at the MBTA in 2007 as temporary employees.  They were placed at the MBTA by the union and were full-time employees on a temporary contract.  In 2010, Steiner and Gomes were working as MBTA temporary painters who reported to Clark and were Clark’s subordinates.  Neither Steiner nor Gomes were friends with Clark in 2010, nor did they associate with him outside of work.  Steiner and Gomes left the MBTA in December 2011 when their contracts expired.  Clark is still employed by the MBTA.

The Evidence

The pivotal issue on which this matter turns is whether Clark asked either Steiner or Gomes to loan him money.  On this issue, the testimony of Steiner and Gomes was directly contradicted by the testimony of Clark. 

Clark’s Alleged Solicitation of Steiner

Steiner testified that on May 20, 2010, while Steiner was in their work area on the platform at the MBTA’s Cabot Car House, Clark approached Steiner and asked to borrow $500.  When Steiner said no, Clark asked Steiner if he could do $300.  Steiner responded to Clark: “[I]t’s not the amount.  I just don’t feel comfortable lending you money.”  Steiner did not lend Clark money.  Steiner also testified that he did not remember telling a Commission Investigator on March 2, 2011, during his first interview with the Commission relating to these allegations, that Clark allegedly solicited him for money over the telephone.  Steiner testified he didn’t remember saying that, but he did remember saying to the Investigator that Clark asked him for money on site.  He further testified that he was not sure if the other members of the crew who were all present that day heard his conversation with Clark and that no one approached him and told him that they had heard it. 

Steiner initially testified that he made notes about Clark’s asking him for money on the same day that it happened in his truck, where he keeps a note pad and pen to write job estimates for his side work, i.e., private, non-MBTA work.  Steiner’s notes included a statement that Clark “didn’t speak to [Steiner] until the next day.”  When asked how he could have known that Clark would not speak to him until the next day if he wrote the note on May 20, 2010, Steiner responded that he “didn’t say [he] completed the whole note in one day.”  He subsequently testified that he made his notes either the day of or the next day.   

Clark denied ever asking Steiner to loan him money.  He admitted discussing money only once with Steiner, which occurred while they were at work in the Spring,[5]and which related to one of Steiner’s side jobs.  When Steiner said that he had a big potential side job that might be coming through for him, Clark told Steiner he would work for Steiner, and asked Steiner his rate.  Steiner replied that he did not think a painter should get more than $25 an hour.  Clark told Steiner that although he normally got more than that, he needed the money, and he would work for Steiner and that $25 an hour for 8 hours was $200.[6]  Steiner testified, however, that he never discussed side work with Clark and that he does not recall telling Clark that he had a side painting job and discussing the issues and aspects of side painting jobs with Clark.  He further testified that he “[n]ever” discussed money with Clark specifically relating to side jobs and side work.  

Clark’s Alleged Solicitation of Gomes

Gomes testified that Clark asked him for money two times.[7]  Gomes did not know the date of Clark’s first request, which was for $80.  Gomes did not give Clark the requested $80.  The second time was during the summer of 2010 when Gomes was working.  Clark stopped Gomes and asked Gomes for money.  When Gomes grabbed his wallet, Clark said he did not “want the change,” he “want[ed] real money.”  When Gomes asked how much he wanted, Clark said $300.  Gomes said “no, “I don’t have $300.”  Gomes testified that when he was interviewed by a Commission Investigator over the telephone, although he told her Clark solicited him twice for money, he did not mention any amount for the first solicitation.  He also testified that he made notes about the second time Clark asked him for money and that he had those notes, but did not have them with him at the hearing.  

Clark denied ever asking Gomes to loan him money.  He admitted only that he and Gomes sometimes shared lunch money.[8] There is no testimony in the record from Gomes about lunch money.  When testifying under oath at the Commission on January 19, 2012, Clark denied ever asking Gomes for money[9] and made no mention about lunch money relating to Gomes, although he did testify at that time to requesting and exchanging lunch money with another MBTA employee, Nate Ruffin, whom he described as a longtime friend.[10]  Clark explained the inconsistency between his prior testimony at the Commission and his hearing testimony by stating that he answered questions in January 2012 based on the allegations which did not involve Ruffin or lunch money.   

The Aftermath of the Alleged Solicitations

The Alleged Hostile Work Environment & Schedule Changes

Both Steiner and Gomes testified that the good working relationship they had with Clark changed after he asked them for money.  Steiner testified that the relationship became “hostile” and “retaliatory.”  According to Steiner, he was locked out of the break room in the middle of the summer where they kept the water, and was given the brunt of the work to do.  Gomes testified that Clark was “more into [him], . . . asking for more things or see [sic] [him] with [a] microscope so everything [Gomes] d[id] is not good, is not doing right.”  According to Gomes, it was “like when somebody’s in your skin.  . . . Like vague things.”     

In addition, Steiner and Gomes further testified that their schedules changed after Clark asked them for money.  Steiner testified that the very next day, his schedule was changed abruptly with no notice from the second shift, which was the night shift, to the first shift.   Gomes testified that his schedule was changed from the first shift to the second shift.[11]  Although Gomes testified he usually preferred the night shift, the summer of 2010 was different because he had his children with him which made it hard to work nights.  He asked Clark not to change his shift.  Although both Steiner and Gomes testified that they did not get any notice about the schedule change, their testimonies differed as to what notice, if any, was required.  Steiner testified that his shift had never been changed without notice and that he normally got two weeks’ notice.[12]  Gomes, however, testified that it was not his experience as a temporary MBTA employee that he got notice two weeks before a shift change and that he had not received notice before any other schedule change.

According to Clark, everyone got their shift changed at some point, including him.  He testified that there were a lot of shift changes in 2010.  According to Clark, sometimes shifts were changed at the request of, and for the benefit of, temporary employees, including Steiner and Gomes, because they did not have sick or vacation time.  Clark testified that they would ask to work a double shift so they would not have to lose hours when going to a doctor’s appointment or for some other personal reason such as a side job for Steiner.  Clark further testified that shift or location changes for temporary employees would also be made based on a specific need for workers at a location to perform a job.  According to Clark, although employees who reported to him made schedule change requests to him, Clark would run it by the MBTA Supervisor (“Supervisor”) because he did not have the power to say yes or no.  He would just put the request in.  Clark testified that work schedules and hours were controlled by the Supervisor, who would give him “leeway on it” as long as Clark kept him informed of who was switching or changing shifts.  According to Clark, if the request did not throw Clark off schedule, the Supervisor would not deny it.  

Reporting of the Alleged Solicitations

Both Steiner and Gomes testified that they reported to others that Clark had asked them for money.  Steiner testified that about two weeks after Clark’s request, in early June 2010, he reported it to Joe Guarino (“Guarino”), the union business representative for the MBTA painters.[13]  Steiner testified that after getting no satisfaction from the union, which told him there was nothing the union could do, he reported it in early December 2010 to Paul Miner (“Miner”), who was the Supervisor for the MBTA at the Cabot Car House.  Steiner also wrote up what happened and submitted it to “Mr. Butler” in the MBTA’s Office of Diversity (“Diversity Office”).[14]

Gomes testified that he reported Clark’s request for money to Miner a few months after it happened.  He waited a few months “because I thought everything was going to settle and then when I notice I was grand chance [sic] to loose [sic] my work, my job because the rumors start around.”  Gomes further testified that before his contract was ending, everyone was calling him and telling him things, including that Clark was telling everyone that Gomes was gone and was not going to renew.  When Gomes realized he was in jeopardy, he “ha[d] to do something to protect [his] job” because he “ha[d] to feed [his] family.”  Gomes testified that he did not know if Miner was the right person to report it to, but that he did what he thought was right and reported it to somebody above him, and that his doing so was not a “vendetta.”[15]   He just wanted “to protect [his] job.”  Gomes also testified that he reported it to a lawyer for the MBTA’s Diversity Office.[16]

The 2011 Non-Extension of Steiner’s and Gomes’ Contracts

Steiner testified that after he made his report to Miner, threats such as, “I’ll get back at you” and “you can be replaced” were made.  He further testified that Clark said he “can’t be fired.”  Gomes testified to hearing rumors that Clark was telling everyone Gomes was gone and he was not going to renew.  In contrast, Clark testified that he did not have any power to renew or not renew temporary employees’ contracts at the MBTA. 

Clark testified that in 2009, after the business agent told Steiner and Gomes that their contracts were coming up and were not going to get extended, Steiner and Gomes both came to Clark and asked him if there was anything he could do for them.  When Clark said he did not know of anything that he could do, he was asked if he could talk to somebody.  Clark then went to see Steve Atkins (“Atkins”), the MBTA Green Line Director, to ask if there was any way possible Atkins could extend Steiner and Gomes because they had already been through the training and knew the job.  Clark testified that Atkins asked Clark what he would have to do.  Clark told Atkins he’d probably have to call someone at the union hall and go from there.  After Clark gave him the union hall number, Atkins called, talked to Guarino, and Steiner’s and Gomes’ contracts were extended for 104 weeks.   

 Clark further testified that he did not try to help Steiner and Gomes get their contracts renewed after the summer of 2010.  He testified:  “[T]he business agent came out and let them know there’s not going to be any extension because of the allegations and stuff that was going on plus what it was people was [sic] trying to force the T to hire them permanent once they was [sic] on two years with no break in service ... .”  According to Clark, because people were trying to use that “loophole” of once they were on for two years with no break in service to get hired as permanent employees, the MBTA and the union were saying that there were no more extensions.  In 2011, Clark did not make a call or any efforts or behalf of Steiner and Gomes because nobody approached Clark and, furthermore, they had already been told by Guarino they were not being renewed.  Clark testified that it was after this notification of nonrenewal by Guarino that the allegations and the lawsuit started.        

When Gomes was asked what made him think that his contract not being renewed in 2011 had anything to do with Clark asking him for money, he responded: “Well, because - - I don’t know if I can say feeling [sic] but the odds are too bad for my side because I don’t have anybody to protect me.  I don’t have a last name.  I don’t have any relatives.  Basically I’m no one … .”[17]   Gomes left in December 2011 because they laid him off.  According to Gomes, Jeff Sullivan (“Sullivan”), the union business agent, was the person he spoke to in order to get hired at the MBTA, and that Sullivan and the MBTA were in charge of whether or not he got renewed.         

Clark’s Response to the Allegations

Clark argues that Steiner and Gomes concocted the allegations against him in an effort to get the MBTA to hire them as permanent employees.  He testified that in December 2010, Steiner and Gomes became aware that another individual had just been placed on permanent employee status.  Clark also testified Steiner was aware of an individual who sued the MBTA and was placed on permanent status.  According to Clark, on a Friday in December 2010, while working overtime at night at the Cabot Car House, Steiner was “very upset” about the employee who had just been placed on permanent status.  Clark told him that it had nothing to do with them, and that they had a job to do.  Clark further testified that Steiner said “I see now the only way to get on the T permanent is to sue.”  Clark stated he told Steiner to let his work speak for him.  Clark further testified that Steiner went “on and on” and said to Clark, “if you don’t like it, you can take it further.”  Clark asked Steiner what he meant about that. 

On the Monday following this conversation, Clark went and reported it to Miner and also called the business agent and business manager for them to come out and have a talk with Steiner because they were all in the same union.  The union officials called Clark and asked him to come down to the union hall, and Clark did so and told them what happened.  The business manager said that they would talk to Steiner and that they would take care of it.  Guarino, the union representative, subsequently came out and talked to Clark and James Blythe (“Blythe”), a permanent MBTA painter, separately, and then talked to Steiner and Gomes separately.  Clark testified that when he asked Guarino to get everybody together to talk and hash it out and get it over with, Guarino told him no, everything was fine.  From that day forward, Bobby Menyo (“Menyo”), the union steward, started meeting with Steiner and Gomes at the time clock.     

Clark also testified that Blythe came to Clark and told him that “they [were] out to get [him].”  Blythe told Clark that “they [were] going to say [that Clark] treat[ed] them unfairly,” and then “they changed their mind[s] and were going to say that [Clark] asked them for money.”  Clark testified that Blythe said they tried to get him to go along with them.  According to Clark, Steiner and Gomes made their allegations against him after Guarino came in at the end of 2010.  Clark further testified that Steiner and Gomes starting coming forward with their statements in 2011, but they tried to “backdate stuff” to 2010.

IV. Decision

Burden of Proof

To prove the alleged § 23(b)(2)(i) violation, Petitioner must demonstrate that (1) Clark was a state employee and that (2) knowingly, or with reason to know, (3) he solicited something of substantial value, i.e., worth $50 or more, for himself, (4) for or because of his official position as an MBTA Painters Foreman.  To prove the alleged § 23(b)(2)(ii) violation, Petitioner must demonstrate that (1) Clark was a state employee and that (2) knowingly, or with reason to know, (3) he attempted to use his official position as an MBTA Painters Foreman (4) to secure for himself an unwarranted privilege or exemption (5) which was of substantial value, and (6) which was not properly available to similarly situated individuals. 

Petitioner must prove each of these required elements by a preponderance of the evidence.  930 CMR 1.01(10)(o)2; In Re Jacques, 2013 SEC 2480, 2487; In Re Piatelli, 2010 SEC 2296, 2302, aff’m, 84 Mass. App. Ct. 1107 (2013); In Re Maglione, 2008 SEC 2172, 2173.

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 Re Jacques, 2013 SEC at 2487; In Re Maglione, 2008 SEC at 2173.

Analysis of the Evidence

To establish a violation of § 23(b)(2)(i), Petitioner was required to prove by a preponderance of the evidence that inter alia, Clark solicited something of substantial value for himself from either Steiner or Gomes for or because of his official position.  In a similar manner, to establish a violation of § 23(b)(2)(ii), Petitioner was required to prove by a preponderance of the evidence that inter alia, Clark attempted to secure for himself from either Steiner or Gomes, an unwarranted privilege of substantial value. 

Based on the testimony in the record, the Commission is confronted with two competing and entirely different versions of what occurred.  Steiner and Gomes testified that Clark asked each of them to loan him hundreds of dollars; Clark vigorously denied doing so.  Clark admitted to having only one conversation with Steiner about money, which he testified related solely to Steiner’s private side work.  Steiner, however, testified that no such conversation about his private work occurred.  Clark also admitted to occasionally sharing lunch money with Gomes.  There was no testimony in the record from Gomes about sharing lunch money with Clark.  In response to these allegations, Clark argues that Steiner and Gomes concocted the allegations against him in an effort to get the MBTA to hire them as permanent employees. 

These starkly different versions of the alleged solicitations are further compounded by the lack of any independent, corroborating evidence in the record to support either the version offered by Steiner and Gomes or the version offered by Clark.  For example, there is no other testimony or evidence in the record as to the reporting and/or any investigation by the MBTA or the union of Clark’s alleged solicitations of Steiner and Gomes, or as to the MBTA’s policies or procedures relating to shift changes, work allocation or renewal of temporary employees’ contracts. 

Because Petitioner has the burden of proving each element of the alleged violations by a preponderance of the evidence, the absence of independent corroborating evidence in this matter to support the allegations is fatal to Petitioner’s case.  In this case, where the evidence presents two competing versions of what occurred, with no independent corroborating evidence, Petitioner has failed to meet its burden of proving each element of the alleged violations by a preponderance of the evidence.  “Petitioner cannot prevail ‘if the question is left to guess, surmise, conjecture or speculation, so that the facts established are equally consistent [with no violation as with a violation.]’’ In Re Kinsella, 1996 SEC 833, 835, quoting Tartas' Case, 328 Mass. 585 (1952).  See In Re Jacques, 2013 SEC 2480, 2488; In Re Piatelli, 2010 SEC 2296, 2302, aff’m 84 Mass. App. Ct. 1107 (2013); In Re Maglione, 2008 SEC 2172, 2173.  Accordingly, Petitioner has failed to meet its burden.

V. Order

Petitioner has failed to prove by a preponderance of the evidence that Clark violated either § 23(b)(2)(i) or § 23(b)(2)(ii).  According, the allegations are hereby DISMISSED.

[1] Commissioner Murphy abstained from participating in this matter.  Because she did not participate in all of the deliberations, Commissioner Mangum is not a signatory to this Decision and Order.

[2]  Section 23(b)(2)(i) provides that no public employee shall knowingly, or with reason to know, solicit or receive anything of substantial value for such employee, which is not otherwise authorized by statue or regulation, for or because of the employee’s official position.  This provision of the law was added to c. 268A in 2009 as part of Chapter 28 of the Acts of 2009.

[3]  Section 23(b)(2)(ii) provides that no public employee shall knowingly, or with reason to know, use or attempt to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.

[4]  At the adjudicatory hearing, Clark objected to the Admissions only as to the fact that he was alleged to have “full control over setting schedules and duties” on the ground that he had denied it from the outset.  Commissioner Quinlan accepted that Admission, but permitted Clark to introduce evidence inconsistent with it, and placed the burden on him to prove it was incorrect.

[5]  There is no testimony in the record as to which year Clark was referring.

[6]  Clark also testified that in early 2011, when Paul Miner, the MBTA Supervisor at the Cabot Car House, called him when the allegations came forward, he told Miner about this conversation with Steiner.

[7]  In both the Order to Show Cause and its brief, Petitioner alleges violations only as to the second request for money testified to by Gomes, an alleged $300 loan request.

[8]  Clark testified he did not share lunch money with Steiner because Steiner brought his own lunch to work and so he never went out.     

[9]  He also denied asking Steiner for money at that time.

[10]  Clark testified that in early 2011, when Paul Miner, the MBTA Supervisor at the Cabot Car House, called him when the allegations came forward, he told Miner about the lunch money issue and that he had asked Gomes for lunch money.  Clark further testified that his conversation with Miner occurred prior to his testimony at the Commission in January 2012.  

[11]  Gomes was working the first shift at that time because he was filling in for an employee who was out sick.

[12]  Steiner further testified that he did not remember if his schedule changed a number of times after May 20, 2010, because he was at the MBTA for four years and did not remember every date that the schedule changed.   

[13]  There is no testimony in the record as to the reason for the timing of that report.

[14]  Steiner testified that in response, he was sent a letter two weeks later that said they found no cause on his complaint.  He further testified that he called to schedule a meeting, to talk about who did they talk to, how did they investigate it, but his call was not returned.    

[15]  He further testified that Miner took notes and told Gomes that he was “going to take care” of it, which he never did, according to Gomes.

[16]  There is no testimony in the record from either Steiner or Gomes as to when they made their reports to the Diversity Office.    

[17]  During his testimony, Gomes “guessed” that he recalled telling the Commission during his deposition that there are three ways to get a full-time job at the MBTA -- “[o]ne is if you know somebody, second is if you’re related to somebody and the third is if you sue.”  At the hearing, Gomes testified that he was not related to anybody nor was he connected to anybody politically.

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