| Date: | 01/05/2016 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 12-0006 |
Petitioner filed an Order to Show Cause (“OTSC”) on July 14, 2014, against Respondent, Agawam Police Department Lieutenant Edward McGovern. The OTSC alleges that McGovern violated G.L. c. 268A, § 23(b)(2)(ii) by giving preferential treatment to an Agawam Police Officer suspected of driving her personal vehicle the wrong way on a state highway in Agawam while intoxicated.
An evidentiary hearing was held on September 11 and 15, 2015.1 At the hearing, the parties made opening statements and introduced evidence through witnesses and exhibits. Both parties filed briefs.2 The parties presented closing arguments to the Commission on November 18, 2015.3
The Commission began its deliberations in executive session on this matter on November 18, 2015, and continued deliberations on December 16, 2015.4 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.
1. Edward McGovern (“McGovern”) is a Lieutenant in the Agawam Police Department (“APD”), a position he has held since May 2010.
2. As a Lieutenant, McGovern reports directly to the Police Chief. Pursuant to the APD chain of command: Patrolmen are subordinate to Sergeants and other superior officers; Sergeants are subordinate to Lieutenants and the Police Chief; and Lieutenants are subordinate to the Police Chief.
3. At approximately 9:15 pm on Friday, June 29, 2012, the West Springfield Police Department (“WSPD”) received an anonymous call reporting a wrong-way driver on Route 5 North.5 This information was transmitted over the Western Massachusetts Law Enforcement Communications (“WMLEC”) radio, and McGovern heard the report over his police-issued portable radio.6
4. WSPD Patrolman Eric Johnson (“Johnson”), and APD Patrolmen William Pierson (“Pierson”) and James Wheeler (“Wheeler”) were dispatched to the area to locate the wrong-way vehicle. Minutes later Johnson located a tan sport utility vehicle (“SUV”) on Route 5 North in Agawam near the Agawam/West Springfield town line.
5. When Johnson found the SUV it was stopped facing the wrong direction (south-bound), in the middle of the left-hand travel lane, next to the guardrail separating the divided highway. The speed limit where the SUV was located was 55 miles per hour and there were no sidewalks, businesses, or residences nearby.
6. Johnson pulled his cruiser in nose-to-nose with the SUV and reported the license plate to his supervisor over the radio. Johnson then saw Danielle Petrangelo (“Petrangelo”) sitting on the guardrail next to the passenger side of the SUV. She had red eyes and was crying. Johnson recognized Petrangelo; they had gone to high school together and he knew that she was an APD officer.
7. Pierson arrived at the scene less than one minute after Johnson. Wheeler arrived several minutes after Pierson. The SUV was still running when Wheeler arrived. Johnson told Pierson that Petrangelo was at the scene. Pierson recognized the SUV as Petrangelo’s vehicle. Pierson and Wheeler observed damage on the passenger side of the SUV consistent with striking a guardrail. Wheeler, a trained accident investigator, believed the damage was “fresh.”
8. Pierson, Wheeler and Petrangelo were co-workers at the APD. Pierson and Petrangelo were also close friends who frequently socialized together. Pierson knew Petrangelo had been placed on administrative leave from the APD pending an internal affairs investigation related to an incident in which she shot an unarmed woman in the face while handling a call (“shooting incident”).
9. Johnson, Pierson and Wheeler were all uncomfortable handling the incident because of their relationship with Petrangelo. Pierson believed his relationship with Petrangelo created a conflict of interest, and in order to avoid a conflict he called his supervisor, Street Sergeant Anthony Grasso (“Grasso”), to request assistance.
10. Grasso was handling another matter when he received Pierson’s call; he told Pierson that he would contact Lieutenant McGovern. Grasso then called McGovern and told him Petrangelo was involved in the incident, and the APD officers at the scene needed assistance from a supervisor. Grasso told McGovern he was unable to go because he was tied up with another call. McGovern agreed to go to the scene.
11. After speaking to Grasso, Pierson approached Petrangelo and asked her if she was okay and how she had gotten there. She said she could not recall how she had gotten there and she asked Pierson if he was going to arrest her. Pierson told Petrangelo a supervisor was on the way and it “was not his call” whether to arrest her. Pierson then helped Petrangelo into the front seat of his cruiser. He believed Petrangelo was intoxicated and that she had been driving the SUV.
12. In order to make Route 5 safe for oncoming traffic, Wheeler and Pierson moved the three police cruisers to the side of the road, and Wheeler backed the SUV into an access road directly off Route 5. The access road led to the back entrance of a water treatment facility. Approximately sixty feet from the side of Route 5 into the access road was a gate, which, when closed, prevented vehicles from entering the water treatment facility from Route 5. At the time of the incident, the gate was closed and locked, so that the only way to enter or exit the access road where Wheeler parked the SUV, was from Route 5.
13. McGovern arrived at the scene shortly after the vehicles were moved. As a Lieutenant, and the highest ranking officer present, McGovern became the officer-in-charge when he arrived.7
14. McGovern had known Petrangelo since 2000, when she became an APD Officer, and he served as her direct supervisor from 2007-2010. McGovern recognized Petrangelo’s SUV and he saw her sitting in the front seat of Pierson’s cruiser. He also observed that the police officers, cruisers, Petrangelo, and SUV were the only individuals and vehicles present at the scene.
15. When McGovern arrived at the scene he spoke to Petrangelo. He asked her how she had gotten there, where she had been, and who she had been with. She told him she had been in Springfield with her friend, Sara, but she “didn’t know” how she had gotten there. McGovern asked her if Sara had been driving. Petrangelo’s demeanor then changed, her tone became serious, and she said, “[y]ou’re here to hurt me.” McGovern told her he was not there to hurt her, he was just trying to figure out what had happened. Petrangelo said, “[n]o, you’re not. You’re the boss. I know the game. I’m not taking your tests. I’m not going to the hospital. I’m not answering your questions.” McGovern understood this to mean that Petrangelo was not going to cooperate with any type of investigation, and she was not going to take field sobriety tests.8 McGovern asked Petrangelo how her SUV had been damaged, but she refused to respond. He then told her to get back into Pierson’s cruiser. McGovern concluded that Petrangelo was incoherent, intoxicated, and drunk.
16. As McGovern finished talking to Petrangelo, Sergeant Grasso arrived at the scene. Grasso was Petrangelo’s direct supervisor and had a close relationship with her. Petrangelo told Grasso, “I’m sorry. I screwed up. I did it to you again. I’m embarrassed.” According to Grasso, Petrangelo was very emotional, smelled of alcohol, had slurred speech, glassy eyes and was under the influence.
17. After speaking with Petrangelo, McGovern talked to Johnson, Pierson and Wheeler. First, McGovern asked Johnson whether there were any charges pending against Petrangelo in West Springfield. Johnson responded that there were none. Second, McGovern asked the Officers whether there were any witnesses and they responded that there were not. Third, McGovern asked the Officers whether they had any evidence that Petrangelo had been operating the SUV. Johnson, Pierson and Wheeler all told McGovern that they did not have evidence Petrangelo had been operating the vehicle.
18. McGovern did not ask Johnson, Wheeler, or Pierson where the SUV was located when they arrived at the scene, or whether Petrangelo made any statements or admissions. Johnson, Wheeler and Pierson did not provide McGovern with additional information about the incident and McGovern did not inquire further.
19. Following his conversation with Johnson, Wheeler and Pierson, McGovern spoke to Grasso.9 McGovern told Grasso, “we can’t arrest her.” Grasso testified that he would have arrested Petrangelo, or issued a citation to her, for operating under the influence (“OUI”).10
20. Next, McGovern ordered Wheeler and Grasso to drive the SUV to the APD Station, and he ordered Pierson to drive Petrangelo to her residence.11 Pierson retrieved Petrangelo’s purse from the SUV and drove her home. McGovern followed them in his vehicle. While driving to Petrangelo’s house, Petrangelo told Pierson she had “fucked up.”
21. Petrangelo was not able to get into her house when they arrived because her house key was on the key ring with the key to her SUV. Pierson called Petrangelo’s boyfriend who had a key. McGovern, Pierson and Petrangelo waited outside for Petrangelo’s boyfriend to arrive with the key. While they were waiting, Petrangelo told Pierson that she “could have killed someone when she had been driving.” 12 Petrangelo’s boyfriend arrived with the key approximately ten minutes later and she went into the house. McGovern and Pierson went back to the APD Station, arriving shortly after 10:00 pm.
22. McGovern’s next shift began at 4:00 pm, Saturday, June 30, 2012. At the beginning of his shift, McGovern spoke to Acting Police Chief Richard Light (“Light”) about the incident. Light told McGovern he was going to assign the matter to an internal affairs investigation and advised McGovern that he did not need to take any other action in connection with the incident.
23. Light designated Lieutenant Eric Gillis (“Gillis”) to investigate Petrangelo’s actions on the night of the incident. Gillis interviewed Pierson, Grasso, Wheeler and McGovern and wrote an Internal Affairs Report (“IA Report”) based on the information he obtained during the interviews.13 The IA Report stated that it was, “quite clear that Officer Petrangelo was intoxicated on the evening of June 29, 2012. Her operation of her motor vehicle on Route 5, the wrong way not only jeopardized her own safety, but that of the entire motoring public as well. That her actions did not result in a devastating tragedy, is simply miraculous. . . .” The IA Report did not suggest that another individual could have been operating the vehicle.
24. Light subsequently asked Hampden County District Attorney, Mark Mastroianni (“Mastroianni”), to review the circumstances of the incident and undertake a further investigation into the matter. On October 24, 2012, Mastroianni advised Light that the District Attorney’s Office would not “initiate any further investigation” into the matter. Mastroianni stated that the although facts in the IA Report “overwhelmingly” demonstrated probable cause to arrest Petrangelo for OUI and operating to endanger, because Petrangelo was neither arrested, nor issued a citation by the officers at the time of the incident, criminal charges could not now be pursued against her in connection with the incident.14 Mastroianni also stated that the “failure of investigators to arrest or issue a citation for criminal motor vehicle infractions at the scene [was] inexplicable based upon the facts included in the [IA] report,” and a “reasonable conclusion from these circumstances suggests . . . Petrangelo received preferential treatment from the [APD] based upon her status as a police officer.”
25. APD policy regarding OUI states that “[a]ppropriate enforcement action consists of immediate arrest, or if circumstances do not allow for an arrest, issuance of a citation . . . Officers should be aware that arrests should be a priority for this event.” APD policy also states that the APD is “definitely and unequivocally opposed to preferential treatment pertaining to adjudication of traffic cases in any manner by any agency, official, or person.”
26. The penalties for an OUI violation may include incarceration, loss of driver’s license, and/or fines.
27. Pierson was not aware of any other situation in which a probable OUI driver who was suspected of going the wrong way on a highway was released by the APD without arrest or citation. Grasso was familiar with two cases involving wrong-way drivers other than Petrangelo occurring during his time with the APD; one of those incidents resulted in a head-on collision with two fatalities.
28. Grasso and Pierson both testified that they would have arrested Petrangelo for OUI and operating to endanger.
G.L. c. 268A, § 23(b)(2)(ii), prohibits public employees from knowingly, or with reason to know, using or attempting to use their official positions to secure for themselves or others unwarranted privileges or exemptions of substantial value which are not properly available to similarly situated individuals. In order to establish a violation of § 23(b)(2)(ii), Petitioner must prove by a preponderance of the evidence that:15 (1) McGovern was a municipal employee,16 (2) who knowingly or with reason to know used or attempted to use his official position; (3) to secure an unwarranted privilege or exemption for himself or others; (4) which was of substantial value;17 and (5) which was not properly available to similarly situated individuals. 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.18
We must first determine whether McGovern knowingly, or with reason to know, used or attempted to use his official position as an APD Lieutenant to give preferential treatment to Petrangelo in connection with the incident. McGovern maintains that Pierson, Wheeler, and/or Grasso were responsible for investigating the incident, and it was up to them to decide whether to arrest or issue a citation to Petrangelo. He also asserts that other officers could have issued a citation to Petrangelo the day after the incident following a subsequent investigation, in which he was not involved. Petitioner contends McGovern knew he was the ultimate authority at the scene, and he failed to act in accordance with his authority, and therefore used his position to allow Petrangelo to escape arrest or citation for charges arising from the incident.
Based on the evidence in the record, we find Petitioner has proven by a preponderance of the evidence that McGovern knowingly, or with reason to know used his official position as an APD Lieutenant to make a determination not to arrest Petrangelo, or to issue a citation to her. It is not disputed that McGovern, as the senior ranking official present, was the officer-in-charge when he arrived at the scene of the incident and that he remained in charge until the scene was cleared. McGovern made decisions and gave orders at the scene that he expected the subordinate officers to obey. The subordinate officers at the scene requested assistance from a supervisor, in part, because they were uncomfortable handling an incident involving a fellow APD Officer and were concerned that it would be a conflict of interest for them to be involved. Likewise, if McGovern was unable to act in an impartial manner, he could have attempted to contact his supervisor, the Police Chief, for assistance.
Next, we must determine whether McGovern used his position to obtain an unwarranted benefit or privilege for Petrangelo. The Commission has previously concluded that an “unwarranted privilege” is one that is “[l]acking adequate or official support” or “having no justification; groundless.” EC-COI-98-2; see, e.g., In Re Smith, 2008 SEC 2152 (employee who worked for the City Council violated § 23(b)(2) where, rather than take steps enabling a parking garage to conduct its usual investigation of a damage claim, he demanded an immediate resolution, saying that he was “on the City Council” and the garage’s permits went through his office and he would remember the name of the owner of the garage); In Re Haluch, 2004 SEC 1165, 1166 (“public employees may not threaten to use their official position or powers to obtain an advantage for themselves in a private dispute”).
To make an arrest for OUI, a Police Officer must have probable cause to believe that an individual: (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of intoxicating liquor or drugs.19 To make an arrest for operating to endanger, an officer must have probable cause to believe that an individual has: (1) operated a motor vehicle on a public way; (2) recklessly or negligently; (3) so that the lives or safety of the public might be endangered.20 Pursuant to APD Arrest Policy and Procedures, “[p]robable cause for arrest exists, if at the time of arrest, the facts within the knowledge of the arresting officer (or within the collective knowledge of the police) are reasonably trustworthy and are sufficient to warrant a person of reasonable caution and prudence to believe that the person being arrested has committed or is committing the crime for which the arrest is being made.” It is not disputed that Petrangelo was intoxicated. There was also evidence that the SUV traveled on a public way at or around the time of the incident.
McGovern contends that his decision not to effect an arrest or issue a citation was warranted because he lacked probable cause as to the required element of operation of a motor vehicle. We are not persuaded by this argument, and conclude that, to the contrary, there was sufficient evidence to support the inference that Petrangelo was the operator of the SUV at the time of the incident. Proof of operation of a motor vehicle in the context of an OUI or operating to endanger prosecution may be entirely circumstantial; in other words, there is no requirement that the defendant have been observed operating the vehicle or even to have been inside the vehicle. Commonwealth v. O’Connor, 420 Mass. 630, 632 (1995) (operation may be inferred from surrounding facts and circumstances); Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52-53 (2006) (sufficient circumstantial proof of operation where car’s engine warm, defendant was registered owner of car and appeared at scene shortly after police arrived, defendant had keys to car, defendant appeared intoxicated and confirmed that he had been drinking, defendant complied with field sobriety tests, and there was no evidence that someone other than defendant operated car); Commonwealth v. Cabral, 77 Mass. App. Ct. 909 (2010) (rescript) (sufficient circumstantial proof of operation where driver observed on her hands and knees outside of car at scene of accident).
We find that there was sufficient evidence for McGovern to arrest Petrangelo, or to issue a citation to her at the scene, for OUI and/or operating to endanger. This evidence included the following: (1) McGovern heard a radio report of a wrong-way vehicle on Route 5 on a Friday night at approximately 9:15 pm; (2) shortly after hearing the radio report McGovern received a telephone call that his subordinate officers needed his assistance handling an incident on Route 5 involving Petrangelo; (3) McGovern arrived at the scene on Route 5, an area where the speed limit is 55 miles per hour, and there are no sidewalks, businesses or residences nearby; (4) McGovern recognized the SUV as Petrangelo’s vehicle, and he observed that there were no other individuals present who could have been operating the SUV; (5) McGovern observed that the SUV was parked approximately sixty feet off Route 5 in an access road leading to a water treatment facility; (6) the only way to enter or exit the access road where the SUV was parked was from Route 5; and (7) Officer Pierson retrieved Petrangelo’s purse from the SUV after McGovern ordered Pierson to drive Petrangelo home. These facts, all known to McGovern, were strong circumstantial evidence of Petrangelo’s operation of the motor vehicle.
We also find that McGovern was the officer-in-charge, and as such, he was responsible for determining what occurred at the scene. While the subordinate officers, Johnson, Pierson, and Wheeler, were not forthcoming with their observations prior to McGovern’s arrival, McGovern failed to conduct any meaningful investigation. Although McGovern asked the subordinate officers whether they had “operation,” when they responded that they did not, he failed to make any additional inquiries, and he chose to ignore all other evidence indicating that Petrangelo had operated the SUV on a public way. McGovern never asked the subordinate officers where the SUV was located when they arrived at the scene. Nor did he ask the subordinate officers whether Petrangelo had made any statements or admissions. Had McGovern made these basic inquiries, he could have learned from Johnson, Pierson, and/or Wheeler that when they arrived at the scene, the SUV was stopped with the engine running, facing the wrong direction, in the left-hand travel lane, and that Petrangelo was sitting on the guardrail next to it. These facts would have been additional evidence of operation.
By failing to conduct a meaningful investigation, and failing to arrest or issue a citation to Petrangelo, despite having sufficient evidence that she operated the vehicle, McGovern used his APD position to provide Petrangelo with preferential treatment, which amounted to an unwarranted benefit or privilege.21
Finally, we must determine whether the unwarranted benefit or privilege Petrangelo received from McGovern as a result of not being arrested or issued a citation at the scene of the incident was of substantial value and was not available to similarly situated individuals. 22
McGovern asserts that APD Officers are not required to arrest all individuals who are suspected of OUI or operating to endanger and may use their discretion not to arrest or issue a citation, even when an operator appears intoxicated. Petitioner maintains that, unlike Petrangelo, other individuals suspected of OUI and/or operating to endanger in Agawam were unable to avoid arrest or citation because of their status as a police officer and/or their relationship with McGovern. Further, Petitioner contends that Petrangelo received a benefit or privilege of substantial value because the penalties for a first time conviction of OUI and/or operating to endanger may include fines, incarceration, legal fees, insurance increases, and suspension and/or loss of license.
We find that the Petitioner has met its burden of proving this element by a preponderance of the evidence. APD policy was to make arrests in circumstances such as this a priority, and it strains credulity to suggest that a civilian who came to police attention under these conditions would have avoided arrest.23 Although APD Officers have some discretion and are not required to arrest or issue a citation to all individuals who are suspected of committing a crime, there is sufficient evidence that Petrangelo was treated differently from similarly situated individuals. Grasso would have arrested Petrangelo for OUI and/or operating to endanger. Further, there was no evidence that the APD has ever released an individual suspected of operating a vehicle the wrong way on a public road while intoxicated without making an arrest or issuing a citation. To the contrary, Pierson and Grasso were not aware of any situation in which a suspected OUI driver, believed to have been operating a vehicle the wrong way on a highway, was released by the APD without arrest or citation. Avoiding arrest in these circumstances was a privilege not available to similarly situated individuals, and, given the possible penalties upon conviction, a privilege of substantial value.
Accordingly, we find that Petitioner has proved, by a preponderance of the evidence, that Edward McGovern violated G. L. c. 268A, § 23(b)(2)(ii) by knowingly, or with reason to know, using his position as an Agawam Police Department Lieutenant to provide an unwarranted privilege or exemption of substantial value to Danielle Petrangelo, a fellow Agawam police officer, by failing to arrest or to issue a citation, or even to properly investigate her for motor vehicle offenses on June 29, 2012, despite probable cause to believe she had committed a crime.
Having concluded that Respondent Edward McGovern violated G.L. c. 268A, § 23(b)(2)(ii) and pursuant to the authority granted it by G.L. c. 268B, § 4(j), the State Ethics Commission hereby ORDERS Edward McGovern to pay a civil penalty of $ 7,500.
