| Date: | 12/11/2014 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 13-0005 |
- Commissioners: Barbara Dortch-Okara, Chairman, William J. Trach, Regina L. Quinlan
- Presiding Officer: Regina L. Quinlan
- This page, In the Matter of Elizabeth Gorski- Motion to Dismiss, is offered by
- State Ethics Commission
Decision
Decision In the Matter of Elizabeth Gorski- Motion to Dismiss
Table of Contents
Order on Motion to Dismiss
Introduction
This case arises from complaints filed against Elizabeth Gorski, a Selectman in Groveland, with regard to her conduct after Groveland Police Chief Robert Kirmelewicz put her son, a police officer, on administrative leave, and, in particular, her conduct at a meeting on March 14, 2012. As testimony at an adjudicatory hearing on this matter indicated, complaints with regard to some of the same events and subject matter were also filed against Selectmen William Darke and Donald Greaney.[1] Transcript (“Tr.”) 334, 400.
Investigations of the related complaints proceeded. Darke and Greaney each gave sworn interviews. Tr. 335; 400-401. Each was offered the opportunity to submit a brief statement to the Ethics Commission, and each submitted such a statement (“Statement”). Tr. 338-339; Ex. 8; Tr. 402-403; Ex. 10. By e-mail, Greaney also sent notes that he had taken at the time of one of the incidents to an Investigator at the Ethics Commission. Tr. 387, 413. The Investigator, however, apparently did not open the attachment to Greaney’s email. (Petitioner’s Opposition, pg. 14).
The Commission found reasonable cause to believe that Gorski violated G.L. c. 268A, and an Order to Show Cause was filed. No public cases were brought against Darke or Greaney.[2]
As preparation for the adjudicatory hearing regarding Gorski proceeded, there was extensive motion practice which focused primarily on Petitioner’s production (or refusal to produce) and/or redaction of documents. Prior to the hearing, Petitioner filed a witness list which included Darke and Greaney. Both testified at the hearing, called by Gorski rather than the Petitioner.
Motion to Dismiss
On the second day of hearing, Gorski moved to dismiss the case on the grounds that the Petitioner had failed to produce or identify the written Statements from Darke and Greaney. Gorski’s counsel reported that he received a copy of Darke’s Statement not from Petitioner, but directly from Darke during preparation for the hearing. Tr. 287. He received Greaney’s Statement and notes directly from Greaney on the evening of the first day of the hearing. Tr. 417. Gorski complained that her right to a fair trial was violated by Petitioner’s failure to produce or even identify these documents during discovery.
At the hearing, Gorski objected that the documents pertained in particular to events involving Chief Kirmelewicz, who already had testified. Gorki asserted that she was prejudiced because, as a result of Petitioner’s failure to have produced the documents, she could not effectively cross-examine Kirmelewicz about information in them. Presiding Officer Quinlan noted that “the Chief is here in the event that he needs to be called by either side.” Tr. 295. Neither party elected to recall the Chief
Gorski filed a written Motion to Dismiss on May 15, 2014. In the Motion, Gorski argues that the two Statements and Greaney’s notes fell within the scope of discovery requests she made about issues relevant to the allegations against her. Gorski contends that the documents are directly relevant to the case against her and are exculpatory in that they directly refute allegations made against Gorski and contradict testimony by Petitioner’s two primary witnesses, Chief Kirmelewicz and Deputy Chief Jeffrey Gillen. In particular, Gorski contends that “Petitioner proceeded at the Adjudicatory Hearing on the theory that Gorski had abused her power as a selectwoman, and portrayed Chief Kirmelewicz as an aggrieved police officer who Gorski had tried to harm,” but “[i]n fact the documents that Petitioner withheld support Gorski’s theory that Chief Kirmelewicz filed complaints against each of the selectmen and used the [Ethics] Commission as a tool for personal gain.” (Respondent’s Memorandum, p. 10).
Gorski complains that Petitioner’s preliminary inquiry related to Gorski, Darke and Greaney, and that Petitioner could not use confidentiality requirements as a reason to withhold documents that related to her case just because cases were not eventually brought against the other two Selectmen. She contends that, especially in light of the earlier significant motion practice which focused on production and/or redaction of documents, Petitioner’s failure to produce or identify the documents was egregious, and, as previously noted, prejudicial to her case.
Petitioner responds that, by law, where a preliminary inquiry does not result in a public case against a subject, the Enforcement Division is required by strict statutory and regulatory provisions to keep the memoranda and other materials submitted by a subject confidential, so that the documents which the Petitioner refers to as “submissions” were properly withheld. In addition, Petitioner contends that the information contained in the documents already was available from other materials that Petitioner had produced. For example, Petitioner had produced Darke and Greaney’s sworn interviews. With regard to Greaney’s notes concerning his telephone conversation with Police Chief Robert Kirmelewicz, Petitioner argues that they could not be produced on grounds of confidentiality, or, in the alternative, that the failure to produce them was inadvertent. Finally, Petitioner argues that because Gorski had all of the documents and in fact used them during the adjudicatory hearing, and the Presiding Officer gave her an opportunity to call back Chief Kirmelewicz to examine him about the documents, she was not prejudiced.
Analysis
Responsive to document requests, relevant and exculpatory
In the Motion to Dismiss, Gorski argues that Darke and Greaney’s Statements were within the scope of her discovery requests and clearly relevant to her case. In addition, according to Gorski, they contradicted allegations made against Gorski and testimony by Petitioner’s key witnesses, and thus contained exculpatory information which Petitioner had an obligation to produce. These points appear to be well supported by the documents.
The Order to Show Cause (“OTSC”) with regard to Gorski alleges that Gorski’s son, Eric, was a police officer in the Groveland Police Department and that Police Chief Robert Kirmelewicz placed Eric on administrative leave on November 7, 2011. Employment contracts for the Chief and Deputy Chief Jeffrey Gillen were due to expire on June 30, 2012. The Selectmen were the appointing authority for Police Department personnel.
The OTSC alleges that Gorski, while serving as a Selectman in Groveland, violated § 23(b)(2), § 17, § 19 and § 23(b)(3). The allegations break down into two main categories. First, Petitioner alleges that Gorski misused her official position as a Selectman and improperly advocated on behalf of her son with Deputy Chief Gillen and a detective in the Police Department to get Eric returned to active duty. Second, Petitioner alleges that Gorski told Selectmen Darke and Greaney that she was upset about her son being put on administrative leave, improperly influencing them to take actions with regard to Eric’s employment status and the renewal of the Chief’s employment contract, and that she improperly met with Chief Kirmelewicz about Eric’s employment status and Kirmelewicz’s employment contract during executive session of a Selectmen’s meeting on March 14, 2012. The documents withheld by Petitioner relate to the second set of allegations.
The Requests for Production of Documents ask broadly for “All documents in Petitioner’s files concerning Respondent” and “All... witness statements prepared by, taken or received by Petitioner in connection with this matter.” They specifically ask for documents relating to allegations that on March 14, 2012, the Selectmen “held an executive session with Chief Kirmelewicz to discuss his contract,” or that Gorski “allegedly participated in a meeting of the Groveland Board of Selectmen, whether an executive session or otherwise, on March 14, 2012.” The Requests ask for documents about all exchanges between Gorski and Chief Kirmelewicz at the alleged meeting.
The withheld Statements were in Petitioner’s files, and were witness statements received by Petitioner. Both Statements include information about the Selectmen’s meeting with Kirmelewicz on March 14, 2012 and the exchange between Gorski and Kirmelewicz that evening. Consequently, the Statements fall within the scope of the Requests.
In addition, the Statements include exculpatory information. In Darke’s Statement, he directly refutes allegations made against Gorski. He states that Gorski did not attempt to get Darke to coerce the Chief into bringing back Officer Gorski and that Gorski never said anything to him about not rehiring the Chief.[3] On this point, the Statements also contradict testimony by Chief Kirmelewicz. Kirmelewicz testified that, at a Selectmen’s meeting on February 27, 2012, Darke stated that Gorski was pressuring him, but Darke, in his Statement, stated that he “was never pressured by Gorski to behave in any manner toward the Chief.” Ex. 8.
A factual issue in the case is whether Gorski attended a Selectman’s meeting in executive session when she came to Town Hall on March 14, 2012 and spoke with the Chief and the other two Selectmen. Minutes of a Selectmen’s meeting on March 14, 2012 indicate that the Selectmen met in executive session to discuss renewal of Kirmelewicz’s employment contract and include the discussion between Gorski and Kirmelewicz. Kirmelewicz testified that Gorski spoke with him at Town Hall during the formal meeting on March 14 and that the meeting at all times was in executive session.
In his Statement, however, Darke states that the March 14, 2012 meeting never went into executive session and that the conversation between Gorski and Kirmelewicz was not part of the Chief’s contract negotiations and “was not regarding town business.” He explains that he called Gorski down to Town Hall “to patch up a relationship.” Ex. 8.
Greaney, in his Statement, likewise denies that the meeting on March 14 was in executive session and explains that the Selectmen’s contract negotiations with the Chief ended before Gorski came to Town Hall. He also explains that the discussion between Gorski and Kirmelewicz came about because Darke spoke with the Chief about “how bad this had gotten with people that were all friends.” Ex. 10.
Kirmelewicz testified that Darke and Greaney pursued a management review of the Police Department because of pressure from Gorski relating to her son’s employment situation. Darke’s Statement refers to concerns he had regarding the Chief’s performance that had nothing to do with Gorski or her son. He wrote that he was told by other people off the record about problems with the Chief and his management, and that these people would not come forward because they feared retaliation from the Chief. In particular, he mentioned that the Chief had fired one officer and had two MCAD complaints filed against the town by his employees, and that the Town was incurring thousands of dollars in legal fees and insurance premium increases defending against the MCAD complaints. Had this information been produced to Gorski during the discovery period, Gorski could have developed a defense with regard to the reasons for the management review.
Darke and Greaney’s Statements and Greaney’s notes also relate to Gorski’s defense that Kirmelewicz filed or threatened to file a series of actions with state agencies as a tool to force the Selectmen to renew his contract. Kirmelewicz testified that he felt “extorted and under duress” because Selectmen Darke and Greaney asked him to confirm that he would not file a complaint with the Ethics Commission if they invited Gorski to come to Town Hall to speak with him on March 14. Both Darke and Greaney wrote in their Statements, however, that the coercion came from the opposite direction. Darke states, “I have been continually pressured, bullied and threatened by the Chief.” Ex. 8. Greaney stated, “If anyone was threatened during the contract talks, it was me.” Ex. 10.
Greaney’s notes report that in a telephone call on March 8, 2012, Kirmelewicz said that Gorski was directing Darke about how to attack him about his contract. The notes say that Kirmelewicz threatened “terrible things” if Greaney “doesn’t hurry up and renew his contract” and an ethics complaint against all of the board if he didn’t get his contract by Friday. Greaney wrote, “After the discussion I felt I had been given an ultimatum and I now would be unethical to vote either way.” Ex. 9.
Darke, in his Statement, wrote that “[t]he Chief repeatedly stated that ‘he had nothing to hide,’ but that he wanted a new contract before he would agree to a performance review.” Darke also reported the threat that Kirmelewicz made to Greaney. Darke wrote, “The Chief told Selectman Greaney that Selectwoman Gorski was already in trouble, and that the same thing would happen to us if he did not get his new contract.” Darke explained that in June – after the Chief’s contract already had been renewed – the Chief continued to badger him about his proposal to do a management review of the Police Department, threatened a complaint to the Attorney General, and followed up the next week with a letter to the Attorney General. Since Kirmelewicz presented himself as a victim of Gorski’s pressure, these statements in the documents withheld by Petitioner relate directly to his credibility as a witness.
Confidentiality obligations
Gorski points out that the sworn interviews for all three of the Groveland Selectmen – Gorski, Darke and Greaney – have the same Preliminary Inquiry number. Even if Petitioner was conducting three investigations, Gorski contends that Petitioner should not be able to manipulate the system through its own internal, self-determined filing procedures, withholding information that relates to Gorski on grounds of confidentiality because it was provided by Darke or Greaney. Gorski argues that if Petitioner’s reason was preserving confidentiality, it was inconsistent for Petitioner to produce Darke and Greaney’s sworn interviews, but withhold their Statements and Greaney’s notes. Gorski further argues that Petitioner should have identified the documents in order to bring the issue to the Presiding Officer’s attention.
Petitioner counters that the law requires Petitioner to keep Darke and Greaney’s Statements confidential. First, Petitioner argues that, by law, the Enforcement Division must keep confidential:
All commission proceedings and records relating to a preliminary inquiry or an initial staff review to determine whether to initiate an inquiry. G.L. c. 268B, § 4(a).
All commission proceedings and records relating to a preliminary inquiry or an initial staff review where the preliminary inquiry has been terminated because it failed to indicate reasonable cause for belief that G.L. c. 268A or G.L. c. 268B has been violated. G.L. c. 268B, § 4(b)
The nature or existence of a preliminary inquiry involving allegations of G.L. c. 268A or G.L. c. 268B, or of an initial staff review to determine whether to conduct a preliminary inquiry. 930 CMR 3.01(2)
The consequences of violating the confidentiality provisions under G.L. c. 268B, § 4(a) include criminal penalties: a fine of not more than one thousand dollars or imprisonment for not more than one year, or both. G.L. c. 268B, § 7.
The Commission’s Enforcement Procedures provide that, prior to submitting a preliminary inquiry report, the Enforcement Division must notify the subject of the date the Commission is expected to meet to consider whether to find reasonable cause to believe that a violation of G.L. c. 268A has occurred. They further provide, “The subject may submit a brief written memo (generally not exceeding five pages in length) to the Commission regarding the allegations.” Enforcement Procedures, § 4(C).
Commission regulations provide that any Party to an adjudicatory proceeding may request that any other Party produce “any documents or tangible things not privileged, and not previously supplied, which are in the possession, custody, or control of the Party upon whom the request is made and which are relevant to the proceedings.” 930 CMR 1.01(7)(b).
Petitioner argues that a “Statement” is a document made by a subject of an initial review or preliminary inquiry, so that producing a Statement from “Subject A” to a Respondent in an adjudicatory proceeding would mean disclosing to the Respondent the existence of an initial staff review or preliminary inquiry with regard to “Subject A.” Petitioner maintains that this is prohibited by law, and such a Statement must be kept confidential.
With regard to why Petitioner produced the sworn interviews of Darke and Greaney but not their Statements, Petitioner explains that, unlike a sworn interview, a Statement is prepared by a subject to defend against the specific allegations as to him. Consequently, disclosing a Statement in all likelihood would confirm the existence of an investigation.
In addition, Petitioner explains that the sworn interviews of Darke and Greaney “were used in the investigation of Respondent.” Because the Commission found reasonable cause to believe that Gorski violated G.L. c. 268A, the records and proceedings from the preliminary inquiry regarding Gorski, including these sworn interviews, are discoverable. However, unless the Commission found reasonable cause to believe that Darke and/or Greaney violated G.L. c. 268A, Petitioner maintains that their Statements must remain confidential. Confidentiality protects the privacy and reputation of a subject where no case will be brought against him.
The Statements
Having considered the arguments, we are not convinced that the confidentiality provisions in the statute and regulations justified Petitioner’s conduct in withholding the two Statements by Darke and Greaney without even noting their existence. The mission of the Ethics Commission is to enforce the conflict of interest law through fair proceedings that provide due process to Respondents, and Petitioner, in carrying out that mission, must scrupulously play by the rules. If Petitioner conducts related investigations of more than one subject, Petitioner, to the maximum extent allowable by law, must disclose factual information provided by one subject that is relevant to a public case brought against another subject. Withholding an entire document that relates to a Respondent’s case because some of the information in the document indicates that an investigation also proceeded against a different subject deprives the Respondent of information to which he is entitled during discovery. The obvious concern is that Petitioner benefits from knowing information that Respondent does not have. This advantage is particularly troublesome if the information withheld is exculpatory or unfavorable to Petitioner’s case, as it is in this case. It raises the risk that Petitioner could selectively use documents which support a case against a Respondent while withholding other documents which do not.
The reality of this risk is demonstrated by the fact that, in the final witness list filed before the adjudicatory hearing, Petitioner listed Darke and Greaney as witnesses Petitioner intended to call – without having identified or produced their Statements. Had Petitioner called Darke or Greaney as a witness, Gorski, on cross-examination, potentially would have been unable to highlight facts in the Statements that were supportive of her defense. In the end, Gorski, not Petitioner, called them as witnesses, and had the benefit of the Statements only because she received them from the witnesses themselves.
In our view, Petitioner was required at least to identify the Statements in a privilege log or in camera to the Presiding Officer so that the question about whether they could be produced in whole or in part could be addressed. Raising the issue with the Presiding Officer on an ex parte basis was another possibility. The information in the documents that had to be kept confidential was reference to any preliminary inquiry or initial staff review of either Darke or Greaney. Whether redactions would have made it possible to produce Darke and Greaney’s Statements without such references should have been raised with the Presiding Officer.
There were no fewer than seventeen motions regarding discovery in this case, most of which had to do with efforts by Gorski to eliminate extensive redactions from documents which Petitioner had produced, many of which included statements by or about Selectmen Darke and Greaney. Repeated attention to these questions and repeated requests to the Presiding Officer to resolve these questions should have put Petitioner on notice that the same questions should have been addressed to the Presiding Officer about the Statements created by Darke and Greaney. Under these circumstances, the failure to disclose the Statements even to the Presiding Officer was, in our estimation, egregious.
Greaney’s notes
Greaney’s notes were created by Greaney contemporaneously with events at issue in the Gorski case. The fact that the notes may have been provided to Petitioner in the course of an initial staff review or preliminary inquiry regarding Greaney’s conduct does not mean that confidentiality provides a justification for withholding the notes from Gorski or failing even to disclose that they were being withheld.
Greaney testified that he attached them to an e-mail he sent to an Investigator at the Ethics Commission. Petitioner reports that the Investigator inadvertently failed to open the attachment, so that Petitioner was unaware that the notes had been received before Gorski moved to dismiss the case at the hearing. Petitioner contends, therefore, that Petitioner could not produce what it did not know it had.
When bringing a case against Gorski, Petitioner had a responsibility to know what information had been provided by witnesses about the facts and events relative to Gorski’s conduct. Confidentiality would not have provided a basis for withholding the document, and the failure to have produced it cannot be excused by a failure to notice that it had been received.
Prejudice
Petitioner argues that Gorski was not prejudiced by reason of having no access to the Statements or Greaney’s notes, but to find for Petitioner on this point would mean that Petitioner would benefit unduly from the fact that documents Petitioner failed to produce were made available to Gorski anyway by the authors of the documents before the case was fully tried. As mentioned earlier, having the documents during the discovery phase may well have made a difference for Gorski in refining cross-examination of witnesses or bolstering defenses.
Consequence of Petitioner’s failure to identify or produce the documents
The rules governing this agency’s adjudicatory proceedings provide that a Respondent may move to dismiss for failure to comply with those rules or with any order of the Commission or Presiding Officer. Gorski moves that we dismiss this case as a result of Petitioner’s failure to comply with the rules regarding requests for documents. See 930 CMR 1.01(7)(b).
While the regulations do not provide any other specific sanctions that may be imposed for failure to comply with discovery requirements or orders, we note that “dismissal of the action or proceeding or any part thereof” is a sanction provided in the Massachusetts Rules of Civil Procedure for failure to obey an order to provide or permit discovery.[4] Other sanctions provided in that Rule include:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
Similar sanctions for failure to obey a discovery order are provided by regulations governing adjudicatory proceedings of state agencies bound by the mandate of G.L. c. 30A.[5] See 801 CMR 1.01(8)(i).
In determining what the consequence of Petitioner’s failure to produce or identify the documents should be, we note that dismissal is a drastic sanction, and that “our system favors the substantive resolution of disputes on the merits in most instances.” Grassi Design Group, Inc. v. Bank of America, N.A., 77 Mass. App. Ct. 456, 461 (2009). The better approach would be to fashion a sanction that is tailored to the disadvantage visited on Gorski by reason of Petitioner’s failure to produce the specific documents. Id. at 460.
This case is unusual in that the failure to produce documents came to light during the course of an ongoing hearing. The motion to dismiss and the case on the merits are simultaneously before the Commission.
Our review of the evidence at the hearing indicates that Petitioner has failed to prove by a preponderance of the evidence the claims under § 23(b)(2), § 17(c), § 19 and § 23(b)(3) to which the documents which Petitioner failed to disclose relate. Specifically, we have found that Gorski did not violate these provisions through her conduct in relation either to Selectmen Darke and Greaney or to Chief Kirmelewicz, or her activities during a discussion with these individuals on March 14, 2012. Details regarding this conclusion are included in a Decision and Order that has been issued contemporaneously with this Order. Under these circumstances, we are conscious that dismissing or otherwise issuing an appropriate narrower sanction on the basis of Petitioner’s discovery error rather than reaching a resolution of these claims based on the evidence would compound the unfairness to Gorski by depriving her of a decision on the merits.
Accordingly, in light of the conclusion we have reached on the merits, the Motion to Dismiss is moot insofar as it relates to these claims. We are issuing this Order on the Motion to Dismiss notwithstanding its mootness to state explicitly that we reject the argument that Petitioner’s actions were justified by applicable confidentiality requirements and to emphasize that Petitioner was required both by our rules and by due process to raise issues about the confidentiality of documents with the Presiding Officer.
As noted previously, the documents which Petitioner failed to disclose do not relate to the claims based on the allegations that Gorski improperly contacted Deputy Chief Gillen and a detective about her son’s employment situation. The Motion to Dismiss is denied as to these claims, which are also decided on the merits in the separate Decision and Order. (See OTSC, paragraphs 10-15).
Conclusion
Accordingly, we hold that Gorski’s Motion to Dismiss is MOOT in part, and DENIED in part, to the extent explained above.[6]
Commissioner Quinlan (concurring): I concur with the conclusion reached by my fellow Commissioners that Petitioner has not proven by a preponderance of the evidence the claims under § 23(b)(2), § 17(c), § 19 and § 23(b)(3) regarding Gorski’s conduct in relation to Selectmen Darke and Greaney and Chief Kirmelewicz. I specifically find, however, that Petitioner’s discovery error provides a separate basis for dismissing these claims with prejudice.