• This page, In the Matter of Elizabeth Gorski Decision and Order, is   offered by
  • State Ethics Commission
Decision

Decision  In the Matter of Elizabeth Gorski Decision and Order

Date: 12/11/2014
Organization: State Ethics Commission
Docket Number: 13-0005
  • Appearance for Petitioner: Karen Gray, Esq.
  • Appearance for Respondent: Mark D. Smith, Esq., Marc Laredo, Esq.
  • Commissioners: Dortch-Okara, Trach and Quinlan[1]
  • Presiding Officer: Commissioner Regina L. Quinlan

Table of Contents

Introduction

The Order to Show Cause (“OTSC”) in this case alleges that Respondent Elizabeth Gorski (“Gorski”), a Selectman in Groveland, repeatedly violated four provisions of the conflict of interest law after Robert Kirmelewicz (“Kirmelewicz”), Chief of the Groveland Police Department, placed her son, Eric, a police officer, on administrative leave on November 7, 2011.

First, the OTSC alleges that Gorski violated § 23(b)(2)(ii) by calling or speaking personally with police officers and her fellow Selectmen to advocate for returning her son to active duty.  Specifically, the OTSC alleges that Gorski used or attempted to use her official position as a Selectman when she engaged in the following conduct:

  1. Advocated for her son with Deputy Chief Jeffrey Gillen (“Gillen”) on multiple occasions, stating a number of times that employment contracts for him and the Chief were coming up for renewal; and
  2. Advocated for her son with a detective, James Morton;
  3. Told the other two Selectmen, William Darke (“Darke”) and Donald Neil Greaney (“Greaney”), that she was upset about her son being placed on administrative leave; and
  4. Spoke directly with Chief Kirmelewicz about her son’s situation during executive session of a Selectmen’s meeting on March 14, 2012.

The OTSC further alleges that the actions described above violated § 17(c) in that Gorski acted as her son’s agent in connection with a matter in which the Town was a party or had a direct and substantial interest.

In addition, the OTSC alleges that Gorski violated § 19 by participating in her capacity as a Selectman in the decision whether to restore her son to active duty, a matter in which her son, an immediate family member, had a financial interest.

Finally, the OTSC alleges that, by acting officially as a Selectman in the ongoing controversy as to whether her son should return to active duty and in the contract negotiations regarding the chief of police while her son had a pending personnel action before the chief, Gorski knowingly or with reason to know acted in a manner that would cause a reasonable person to conclude that her son could improperly influence her or unduly enjoy her favor in the performance of her official duties in violation of § 23(b)(3).

As explained below, we find that Petitioner has proved that Gorski violated § 23(b)(2)(ii) when she spoke with Deputy Chief Gillen about her son’s employment situation at a restaurant in Georgetown on January 26, 2012 and threatened to take action with regard to Gillen and Chief Kirmelewicz’s employment contracts.  Otherwise, we find that Petitioner has not proved any other allegations by a preponderance of the evidence.

Procedural History

Petitioner, the Enforcement Division of the State Ethics Commission, filed the OTSC on March 27, 2013.  An adjudicatory hearing was held on April 30 and May 1, 2014.

At the beginning of the second day of hearing, Gorski moved to dismiss the case on the grounds that during the discovery phase, Petitioner had failed to produce certain documents created by Gorski’s fellow Selectmen, Darke and Greaney.  Both Darke and Greaney testified that Ethics Commission investigations had proceeded against them, both with regard to their conduct in relation to “the handling of the Officer Gorski situation” and with regard to the March 14, 2012 discussion between Gorski and Kirmelewicz, but no cases were filed against them.  While the investigations were pending, Darke and Greaney each submitted a statement to the Ethics Commission (“Statement”) and Greaney sent an e-mail to an Investigator at the Ethics Commission attaching notes of a conversation he had with Chief Kirmelewicz on March 8, 2012.  Gorski obtained these Statements and notes from Darke and Greaney directly while preparing for the hearing – receiving Greaney’s documents on the evening of the first day of the hearing.

Decision on the motion was deferred, and the adjudicatory hearing proceeded to completion.  Gorski introduced the Statements and Greaney’s notes into evidence.  The full Commission heard arguments on the Motion to Dismiss as well as closing arguments in the adjudicatory hearing on September 18, 2014.  A decision on the Motion to Dismiss has been issued contemporaneously with this Decision and Order.

Undisputed Facts

Elizabeth Gorski was a Selectman in Groveland in 2011 and 2012.  She received a summary of the conflict of interest law on December 17, 2009, and completed on-line training with regard to that law on December 17, 2009 and March 2, 2012.

In 2011 and 2012, the other two Selectmen were Darke and Greaney.

The Selectmen were the appointing authority for all police officers in the Groveland Police Department (“GPD”).  In 2011, the Chief of the GPD was Robert Kirmelewicz and the Deputy Chief was Jeffrey Gillen.  Each had a three-year employment agreement that was going to expire on June 30, 2012.  The agreements included a clause stating that six months prior to the expiration of the contract, negotiations would begin with regard to the next employment contract.

Gorski’s son, Eric, was a police officer in the GPD in 2011.  On November 7, 2011, Chief Kirmelewicz placed Eric Gorski on administrative leave.   Thereafter, he was relieved of all of his police duties and was not eligible for assignments or promotions and could not work details.

Chief Kirmelewicz sent a letter to the Board of Selectmen advising them that he had placed a full-time police officer on administrative leave, without naming the officer.  Selectman Greaney subsequently called the Chief and found out that the officer was Eric Gorski.

Eric Gorski was placed on sick leave in January, 2012.  He was returned to active duty with the police force on July 13, 2012.

Evidence

Gorski’s Conversations with Deputy Chief Gillen

November 7, 2011.

On the night of November 7, 2011, after learning that her son was placed on administrative leave, Gorski called Deputy Police Chief Gillen.  According to Gorski, Gillen was a “good friend.”  Both Gorski and Gillen testified that Gorski wanted to know “what was going on” with her son.

Gillen testified that during the phone call, Gorski said, “I was told not to call you, but I’m going to.  I want to talk to you.”  Gillen testified that Gorski was very upset and not happy with the Chief.

According to Gorski, Gillen told her that that the chief had made the decision to put Eric on administrative leave, and that Gillen didn’t necessarily agree with it.

Chief Kirmelewicz told his officers that he does not want them talking to the Board of Selectmen about police matters.  After speaking with Gorski on November 7, Gillen reported to the Chief that he received a phone call from Gorski.

December 3, 2011.

On December 3, 2011, Gorski went to the police station to talk to Gillen about Eric’s situation.  Gorski testified, “I just wanted to ask him a couple of questions because Eric wasn’t sharing information with me, and I know Eric and Jeff are good friends.”  She explained, “We talked about what was happening.  I said Eric’s not telling me anything….  Maybe you can help me understand what’s happening.”

According to Gillen, Gorski related her concerns with her son being out of work and said that she “wanted me to fix it, wanted him back.”  Gillen stated, “She wanted him back to work was something she said many times.”  Gillen testified that Gorski made negative comments about the Chief.  She said, “He’s the problem.  He doesn’t know how to treat people.  He’s a bully.”  Gillen testified that Gorski ended the conversation by saying, “You know, you have to come before the board for your contracts and appointments.”

Contradicting Gillen’s account, Gorski testified that, on December 3, she never discussed the Deputy Chief’s or Chief’s contracts.

December 4, 2011

Gillen is the emergency management director for the Town of Groveland.  Gillen received a call from Gorski the next day at the police station.  He testified, “And she said, ‘You know, when I was in yesterday to see you, we were talking about emergency management stuff,’… She said, ‘That’s why I was in to talk to you, about emergency management.’”

Other contacts with Gillen

Gillen testified that he received “many calls, several calls” from Gorski – “at least ten” – and that “[t]hey were usually pretty threatening and intimidating.”  He testified, “She said that she wasn’t happy.  She wanted me to fix it.  She wanted her son back to work.  That the chief was more the problem.  That she had the votes of the Board of Selectmen when it came to issues involving her son.  A couple of times she mentioned our contracts and our negotiations or appointments were coming up.”  Gillen testified that he felt “threatened” and “very uncomfortable” and that it was “intimidating.”  Gillen reported these conversations to the Chief.

January 26, 2012 – Coach’s Restaurant.

Gillen testified as follows.  On January 26, 2012, Gillen was at Coach’s Restaurant in Georgetown with a friend, Don Cudmore.  Cudmore and Gillen were best men at each other’s weddings.  At the time, Cudmore was a lieutenant for the Georgetown Police Department, and now is its chief. 

Gillen described what happened at the bar.  He saw Eric Gorski leaving from the other side of the bar and said to Cudmore, “Oh, there goes Eric Gorski.”  Elizabeth Gorski then came up to Gillen and said, “I can read lips, you know.”

She started asking me about Eric.  I said, “Well, how are things going with you?”  She said, “Not good when people are making accusations about you,” with her son.  And I said, “Betty, nobody would be saying anything bad about Eric.  Everybody likes him.  We all want him back to work.”  She went on to make some comments about the chief.  Then she said, “I suppose you’re going to report that I talked to you to your buddy Bob [Kirmelewicz]?”  And I said, “Yes, Betty, I told you I’m going to report – that I’m supposed to report things to the chief.  I am going to do that.  I told you that.”

After some comments by Cudmore, the conversation proceeded as follows, according to Gillen:

At that point, she was tapping her finger aggressively on the bar, very agitated.  Was saying he has no right treating people the way he does, telling people who to go out to eat with, putting postings in the police station.  I said, “Betty, if you have a problem with the chief, you should talk directly to him…”  I went on and said, “I know you’re going to think I’m a bad guy now, but if I go along with you, what you want me to do, you’re going to wake up some day and see I’m a bad guy.”  I said, “I’m not doing that.  I’m going to do the right thing.”  That really irritated her.  She was banging her finger on the bar saying, “You call this doing the right thing?”  And I said, “Yes, I want to help Eric, and I’m trying to do the right thing.”  She then ended the conversation with saying that, “I may not be able to sign the payroll, but your appointments and contracts are coming up, and I’m going to invoke the rule of necessity.”  And I said, “Well, good, Betty, you should.”

In notes he made about the conversation, Gillen wrote that Gorski said, “I can be involved in some of the votes and contracts coming up.”

Gillen described Gorski’s tone during the conversation as “Very aggressive, intimidating.  Very threatening and upsetting to me.”  He explained that he was intimidated because he thought his job was on the line.

Cudmore testified that Gorski was the first to bring up the subject of Eric.  He explained, “They were talking about Officer Gorski had been placed on administrative leave.  So they were talking about whether it was appropriate he was on leave…”  He recalls Gorski said “[t]hat it was wrong what was going on with Eric, and that she would have to invoke the rule of necessity pursuant to the contracts between the deputy and the police chief.”  Cudmore described her tone as “pointed.”  Cudmore offered his opinion that with regard to the Board of Selectmen, “if there’s a conflict…. It’s not just as easy as invoking the rule of necessity.  There’s a process for it.”  He observed that, after the conversation, Gillen “was clearly upset.”

Gorski reported the following about the same conversation.  She heard Gillen say, “oh, there[’s] Eric Gorski.  And I kind of made a joke, I said yeah, and here’s Betty Gorski”.  She said to Gillen, “I don’t know, Jeff, what’s happening; Eric tells me nothing…. what’s the conclusion of all of this?”  Gillen said, “Betty, I never would have done this.”  She testified that a woman began chatting with Gillen.  After that, Gorski did not have any further conversation with Gillen.  Her testimony did not include any mention of the contracts for Gillen or the Chief or of the rule of necessity.

Gorski’s Conversation with Detective James Morton

In 2011, James Morton was a detective in the Groveland Police Department and the union steward for the Groveland Police Union.  He testified as follows about an incident in which he had contact with Gorski about her son’s administrative leave.  Morton was working a shift in uniform in a cruiser in the center of town.  Gorski spotted him, stopped and asked him “if I thought that the union was doing everything they should for Eric.”  Morton said yes.  He said to let him know if there’s anything else that he needed to do or if Eric needed anything.  Morton did not consider the conversation threatening in any way.  He thought it was concern that a mother was expressing for her son.

The Chief asked Morton to write a report about this.  At the hearing, Morton confirmed that he wrote: “At no time did Selectman Gorski and I discuss anything concerning her son’s circumstances.”  He also wrote, “At no time did Selectman Gorski say or do anything to me I considered to be intimidating towards me.”  The report was not introduced as an exhibit.

Gorski testified that she talked to Morton “about how Eric is and what’s going on.”  Gorski testified that she was not trying to influence Officer Morton when she had that discussion.

Gorski’s Conduct with Regard to the Chief and Deputy Chief’s Employment Contracts

January 30, 2012 meeting.

The BOS had a meeting on January 30, 2012.  This meeting occurred four days after Gorski’s conversation at Coach’s Restaurant with Gillen.  The executive session minutes indicate that the Board of Selectmen had planned to go into executive session to discuss contract strategies for the Chief’s and Deputy Chief’s contracts.

Previously, Gorski had a policy of abstaining from police matters.  At the meeting on January 30, 2012, Gorski announced that she wanted to participate as a Selectwoman in police personnel matters.  She specifically indicated that she wanted to participate in the Chief and Deputy Chief’s contract negotiations.  Gorski told the Board that she had filed a § 23(b)(3) disclosure which she believed would allow her to participate in such matters. The disclosure discloses that she is the mother of GPD Police Officer Eric Gorski, but makes no reference to the fact that her son was on sick leave from the GPD.  Selectmen Darke and Greaney voted to schedule contract negotiations for four weeks later to allow Gorski to receive a ruling from the Ethics Commission.

Gorski called the Ethics Commission on January 31, 2012 and had a discussion with Attorney David Wilson, Deputy Chief of the Legal Division.  She told him she was on the Board of Selectmen in Groveland and was a police officer’s mother.  From Gorski, Atty. Wilson understood that her son was on sick leave against his wishes, and that he had a dispute with the Chief about it.  Gorski indicated that she wanted to participate in negotiations about the Chief’s employment contract.

In a data entry, Atty. Wilson wrote that it does not appear that Gorski’s son has a financial interest in whether the Chief is re-hired.  Wilson advised Gorski that she could not participate in negotiations about the Chief’s employment contract unless she filed a full written  § 23(b)(3) disclosure.  According to Wilson, the fact that her son was on sick leave was one of the relevant circumstances that would have to be disclosed in Gorski’s §23(b)(3) disclosure.  This was confirmed by the last line in his data entry: “Given that EG states that she does not want to disclose her son’s sick leave issue, EG must abstain from participating in the Chief’s contract renewal.”  Exhibit (“Ex.”) 4.

Gorski testified that after the discussion with Wilson, she decided it was not in her best interest to participate in the contract negotiations, and she did not get involved with the negotiations of the chief and deputy chief’s contract at all.

Gorski’s Communications with Selectmen Darke and Greaney

Selectman Darke testified that he and Selectmen Greaney had several meetings with the Chief about Eric Gorski.  Gorski did not participate in any of those meetings because she had to recuse herself.  In his Statement, Darke wrote, “…I told the Chief that, even though I felt that he had handled it poorly, now we needed to follow the process.”  Ex. 8.  He outlined some steps and meetings that took place after Officer Gorski was put on administrative leave.  Gorski was not involved at any point.

Gorski testified that she had no conversations with Selectmen Darke and Greaney about Eric’s situation, but that they could see that she was very upset.  She also testified that she told Darke and Greaney, each maybe twice, that she was upset about Eric’s situation.  She admitted that she spoke to Darke about Eric’s situation about not being at work and spoke to Greaney about Eric being on administrative leave.

Gorski testified that she never tried to influence the other Selectmen in their actions dealing with Eric’s administrative leave.   Darke also testified that Gorski did not influence him or attempt to influence him in any way whatsoever in connection with her son Eric’s situation.

After Gorski consulted with the Ethics Commission and elected to recuse herself, she did not attend the following Selectmen’s meetings at which police matters or the renewal of the Chief’s and Deputy Chief’s employment contracts were addressed:  meetings on February 6, February 27, and March 5, a posted meeting which was a tour of the police station on March 30, or a meeting on April 26 when Selectmen Darke and Greaney renewed the Chief’s contract.  Gorski did not vote on or sign the Chief’s contract.  Her conduct with regard to a meeting on March 14, 2012 will be discussed below.

Gorski testified that she never tried to influence Selectmen Darke and Greaney in their actions involving negotiations of the contracts with the Chief or Deputy Chief.  Darke and Greaney each testified that Gorski did not at any time influence him or attempt to influence him in any way whatsoever in connection with the Deputy Chief’s contract and did not participate in any manner whatsoever in connection with that renewal.  Darke additionally testified that Gorski did not contact him in any way regarding the Chief’s contract, and that he did not have any conversations with Gorski about the renewal of the contract.  In his Statement, he wrote that at no time did Gorski attempt to get him to coerce the Chief into bringing back Officer Gorski.

Subsequent meetings regarding the employment contracts

February 6, 2012 meeting.

On February 6, 2012, the BOS held another meeting.  The minutes indicate that Selectmen Greaney and Darke discussed “a few issues” with Chief Kirmelewicz, and then “asked the Chief to keep the Selectmen’s Office informed of any future issues and asked that he not take immediate action until he talks with the Board.”  An annual review was required in the Chief’s contract, and Darke told Kirmelewicz that they had been remiss in conducting it and would be doing that going forward.

Kirmelewicz’s actions after the February 6 meeting.

On February 9, three days after the meeting, Kirmelewicz met with John Blodgett, the District Attorney for Essex County.  According to the Chief, the point of the meeting was to ascertain whether Gorski was committing criminal conduct.  Blodgett told Kirmelewicz he was not going to take any action.

February 27, 2012 meetings

On February 27, 2012, Gillen was scheduled for contract negotiations with the Selectmen a half hour ahead of Chief Kirmelewicz.  Gillen testified that when he arrived for his appointment, the Selectmen were still meeting.  He explained, “I know Betty doesn’t sit in on our negotiations or my negotiations.  So I waited outside for them to finish their business.  I was down the hallway so I wouldn’t have an encounter with Betty.”  He testified:

As she came out, she stopped and she looked down the hall where I was.  Shaking her head with a smile on her face saying, “It’s too bad.”  I walked up and I said, “What’s too bad, Betty?”  She said, “All this, it’s sad.”  I said, “Yes, it is.”  She then walked away….

Gillen sent a text to Chief Kirmelewicz, saying he thought he was just threatened.

The following exchange took place at the hearing:

HEARING OFFICER QUINLAN:  Why did you take that as a threat?

THE WITNESS:  Because I was going in for my contracts and she was smirking at me saying, “It’s too bad.”

Gorski also testified that on February 27, 2012, she walked out of the Selectmen’s meeting, met Gillen, and said, “This is so sad, Jeff.”  She testified that she was not threatening Gillen in making that statement.  She explained, “…it was like we’ve always been friends and now we – it’s so strained with our relationship.”  It was sad “[b]ecause we were all close friends” and “[w]e weren’t talking as frequently as we had...”

Selectmen Darke and Greaney met successively with Deputy Chief Gillen and Chief Kirmelewicz about the renewal of their employment contracts.  At each of the meetings, Darke said that he thought the Selectmen should hire an outside evaluator to do a review of the Police Department before either contract was renewed.

Gillen testified about his meeting:

… the first thing Bill Darke said to me was, I’m not prepared to negotiate with you tonight.”  As I said before, I almost fell off the seat.  I was in shock after what Betty had just said to me to come in and being prepared to negotiate my contract and not expecting any problems….

Bill Darke explained to me that he’s getting a lot of pressure from Betty.  That she’s really upset what’s going on with her son Eric.  And that they’re talking about doing a review of the police department.

Kirmelewicz testified about his meeting:

Selectman Darke said that, “We were not prepared to negotiate with you tonight.  We want to do a management review of the police department.”  And I stated, “Is there a reason?  Can you tell me why?”  And he said, “We’re under a lot of pressure from Betty about what’s been going on with her son.”  So I said, “Well, is there a reason, you know, that this would be holding up my contract?”  I said, “Have I done anything wrong?  Have I had any complaints filed against me?”

They said no….  Selectman Darke specifically said, “You’re not getting it.  Do you know how much pressure we’re under from her?”  So I plead my case and tried to talk about negotiating my contract, and they weren’t receptive to it at all.  They told me they didn’t like the decision that I had made involving Officer Gorski.

As noted above, both Gillen and Kirmelewicz testified that Darke mentioned pressure from Gorski at the meetings.  The minutes of the two February 27, 2012 meetings, however, do not include any comments by Darke about being pressured by Gorski.  In addition, Darke testified that, at the February 27, 2012 meetings, he did not make a statement to either the Deputy Chief or the Chief that he was under pressure from Gorski.

Darke also testified that the management review was his idea, and that no outsider suggested it to him.  Darke explained at the hearing that he runs a small business and does reviews occasionally of his employees.  He explained that over the previous year and a half, there had been a number of issues or incidents with the Police Department, “each one on its own not a big deal … but when I start putting a few things together,” a review “seemed like a wise thing to do.”  He said, “…[w]e have one officer we terminated; we had another officer who filed an MCAD complaint against us; we had another officer being put out for paid administrative leave.”  In his Statement, he wrote that he thought a performance review would be in order because he “had been told by other people off the record about problems with the Chief and his management,” and that “[t]hese people would not come forward because they feared retaliation from the Chief.”   He mentioned that they were “incurring thousands of dollars in legal fees and insurance premium increases defending the town against these MCAD complaints.”  Ex. 8.  He asked, “… as the Chief’s supervisor, am I not allowed to ask for a review in light of this?”  Ex. 8.

The meetings with Gillen and the Chief on February 27, 2012 had two different outcomes.  Gillen argued that he was not the chief, and that his contract renewal should not be tied to a review of the department.  Darke agreed, and he and Greaney voted to renew Gillen’s contract.

Kirmelewicz testified that the two Selectmen told him that they should have been informed and consulted before he made a decision about Officer Gorski.  They said that he would hear at a future date about a management review of the police department before they could discuss his contract any further.  Kirmelewicz said he had no problem with an outside evaluation of the police force “[a]fter I received my three-year contract.”  Darke similarly noted in his Statement 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.”  Ex. 8.

March 5, 2012 meeting.

Kirmelewicz testified that he subsequently requested a follow-up contract negotiation.  The BOS met on March 5, 2012.  Kirmelewicz had prepared a two-page list of questions and statements relative to the management review that the BOS wanted to do.  He asked to read it into the minutes in executive session.  His questions included “Why are you doing this management study?  This has never been done in the history of the police department.”  “Even in the previous administration, there were corruption allegations.  There was never any type of management review or study done then.”  He testified that the Selectmen did not answer his questions, and he was told, “We’re getting a lot of pressure from Selectwoman Gorski.”

Darke testified that on March 5, 2012, the Chief accused him and, he thinks, also Selectman Greaney about being influenced by Gorski.  At the meeting, Darke told Kirmelewicz “that it wasn’t true; that I’ve never played politics with anything.  I served a lot of time on the board of selectmen, and it was always one issue at a time.  And – and I wasn’t influenced by anybody.”  They did not agree to a contract with the Chief at the end of the meeting.

Kirmelewicz’s actions after the March 5 meeting

On March 7, 2012, Kirmelewicz filed a complaint with the State Ethics Commission.  In the letter, he talks about “malicious manipulation” by Gorski and “a reign of terror” at the Police Department as a result of Gorski’s efforts.  He wrote that both of the other selectmen are intimidated by Gorski.

Kirmelewicz testified that he subsequently threatened a complaint against Greaney and the other Selectmen.  The next day, on March 8, 2012, Kirmelewicz called Selectman Greaney and advised him that he felt he was being treated unethically during his contract negotiations and was compiling a complaint to the Ethics Commission that he would file if this did not go right.

Kirmelewicz testified that, on the phone, Greaney said that he had been receiving calls from Selectwoman Gorski about the evaluation (i.e., the management review).  According to Kirmelewicz, Greaney did not agree with the evaluation and said that it was a waste of time and money, and that he told Gorski he did not want to play this game.

Greaney testified about the same conversation, and notes that he prepared immediately after the conversation include information about it.  Greaney’s testimony and notes include nothing about any phone calls from Gorski about the evaluation and do not indicate that he disagreed with the evaluation.

About the Chief, Greaney recalled:

He said that he had been advised by his attorney that he should contact the more reasonable selectman to let me know that if I didn’t finalize his contract, bad things were going to happen to Bill and I, and he was already going after Selectwoman Gorski, and he would drag us into the situation, and terrible things were going to come from it.

In his notes, Greaney wrote that Kirmelewicz acknowledged that Greaney and Darke had every right to do an evaluation of him and his department, and that it was fine as long as he got his contract Friday, otherwise he was going forward against all of the board.

Greaney regarded the chief’s statement as a threat.  He felt he was given an ultimatum that if he didn’t give Kirmelewicz his contract, Kirmelewicz was going to file charges against him with the Ethics Commission and “I now would be unethical to vote either way.”  Ex. 9.  Greaney described it as a “bullying situation.”

Greaney testified that, on the day after the phone call, Kirmelewicz called him and apologized for the wording that was used.

Meeting on March 14, 2012.

On March 14, 2012, Selectmen Darke and Greaney met with Chief Kirmelewicz, and Administrative Assistant Nancy Lewandowski took the minutes.

 According to the minutes, at the beginning of the meeting, Greaney stated he felt he had been threatened by Kirmelewicz the previous week.

The minutes state that, in reply:

Kirmelewicz told Darke that one of his attorneys had advised him to let the Selectmen know what was going on with his men being contacted by a Selectman; that he told Selectman Greaney that he had conducted an internal investigation with all of his officers and at least four of them admitted being contacted  and talked to about her son.  Kirmelewicz explained to Darke that he was following his counsel’s advice and was not trying to threaten anyone but was told to tell someone on the Board that they (Selectmen) could all be in trouble if reported to State agencies.”  Ex. 1L.

The minutes state that Selectman Darke told Kirmelewicz “that he wants all the nonsense that has been going on to stop; that he would prefer that Selectman Gorski not get into trouble and that all parties get back to where they were before; that we need this all to end now; and that he is willing to talk to Selectman Gorski and tell her not to be talking to the police officers about department business.”  Ex. 1L.

The minutes state, “Selectman Greaney stated that Officer Gorski was at his work place last Friday telling him various things that he feels had gone on and Greaney stated he told Officer Gorski he can’t make decisions based on anything other than facts.  Darke told the Chief that he resents the fact that he or anyone else thinks that Selectman Gorski is making a decision for him; that he will tell Selectman Gorski that he is following a process.”  Ex. 1L.  In the minutes, on two occasions, Darke stated that “Selectman Gorski has no influence over him or the decisions he makes” and that “nothing any of the Gorskis’ [sic] say to him are going to effect his decision.”  Ex. 1L.

Darke similarly testified that they talked about the performance evaluation, and the Chief reiterated that he thought that Darke was being influenced by Selectman Gorski.  Darke testified that this wasn’t true.  He testified that he said, “[N]o matter what you think you may have heard… I’m just here to do a job.  I’ll do my job like I’ve always done my job.”

Discussion about inviting Gorski

At this point, accounts differ about whether and how the meeting proceeded.  The minutes continue on without a break. 

Darke told Kirmelewicz that he does not feel giving him a new three year contract will fix the current problem; that he wants to mend the relationships and would like all parties to sit down and talk as people who know each other should.  Kirmelewicz stated everyone wants Officer Gorski to get the help they feel he needs and to return to work; that he felt if Eric had done what the doctor recommended, he would already be back to work.

Selectman Darke asked if he called the Gorskis now and they were willing to come to the meeting would Kirmelewicz be willing to try to talk things out and the Chief said he would.  Darke called and Selectman Gorski came to the meeting and stated that Eric Gorski was at a Conservation meeting regarding his lot of land.  Ex. 1L.

The minutes indicate that the discussions that next took place with Gorski present were part of the executive session.[2]

Kirmelewicz testified that Greaney and Darke said at the meeting that they were not happy how he had proceeded with the situation with Officer Gorski and wished that he had consulted with them prior to making any moves.  Kirmelewicz testified, “And Selectman Darke stated how he just wanted everyone to get along.  He specifically stated to me that I cannot reappoint you until we get the situation with Officer Gorski resolved.”  Kirmelewicz says he asked what this had to do with his contract.  He testified:

So at some point the conversation went to Selectman Greaney suggesting that Selectwoman Gorski come to my contract negotiation meeting and we sit and try to talk this subject out and come to a resolution.  So at that point Selectman Darke said, “Well the chief will have to agree not to turn us into ethics.”  And, of course, at that point I felt like I was extorted and under duress.  So I had to agree….

So I agreed that she could come to my contract negotiations.

Kirmelewicz testified that the meeting continued while Gorski was at Town Hall, and that the meeting was concluded and the Selectmen voted to go out of executive session after their conversation.

Both Darke and Greaney testified, however, that they discussed doing the Chief’s performance evaluation and then scheduled a meeting with the chief to go to the police department.  At that point, Darke believed the meeting was over because “they were done talking about the chief’s contract.”  Greaney said they “had finished the negotiation.”  In his Statement, Greaney wrote, “My understanding at that point is we ended our contract talks.”  Ex. 10.

Both Darke and Greaney stated that the next events – a conversation with Kirmelewicz, Darke’s call to Gorski, and Gorski’s arrival at Town Hall – occurred after they were done with their meeting.  Greaney testified that Darke started talking back and forth with the chief after they were done with their formal session.  Darke testified that it was customary after a Selectmen’s meeting to hang out and chat.

According to Greaney, Darke said he wished that the Chief and the Gorskis would get together and fix the long-term relationships that they had.  Darke testified that he said he was sure the Gorskis would probably like to put this – everybody being mad at each other – behind them.  He suggested that they all get together, and that he was willing to mediate.

Darke testified that he did not tell the Chief at any point that evening that he was not going to get his contract until the situation with Gorski was resolved.  Darke wrote in his Statement that Kirmelewicz “knew, as we all did, that this was not part of his contract negotiations, and had nothing to do with bringing back Officer Gorski.  The sole intention was to try to patch up a relationship.”  Ex. 8, Ex. 1L – first attached statement.  He wrote, “When Selectwoman Gorski met with us on March 14th, it was not regarding town business.  It was to heal relationships.”  Ex. 8.  He stated that they “were not participating in any kind of formal meeting of the board of selectmen when Mrs. Gorski was present.”

Both Darke and Greaney testified that Kirmelewicz said, “I’d give Eric a hug right now.”  They both testified that Kirmelewicz said he didn’t have a problem getting together with the Gorskis or with Darke calling them right now to come over.  According to Darke and Greaney, Kirmelewicz did not indicate or demonstrate in any way that he felt threatened or coerced to have Gorski join them.

Like Kirmelewicz, Darke and Greaney testified that when they asked Kirmelewicz if there would be any ethics complaints if Gorski joined them, Kirmelewicz said there would not be.  All testimony indicates that Kirmelewicz did not tell the others, including Gorski, that he felt “extorted and under duress” or coerced or intimidated.

Conversation between Gorski and Kirmelewicz

Gorski testified that Darke called her at home on March 14, 2012 and said they just concluded their meeting and “we’re trying to mend fences and relationships.”  Darke asked her and Eric to come to Town Hall.  When she arrived there, Darke said that “he wishes…  that Bob and Betty and Eric and everyone could get together and, you know, resolve their differences and get back to being the same people that they were before.”

The original minutes of the meeting state:

… Darke told Selectman Gorski that he wants to find a way to work things out and asked if she would talk with Kirmelewicz and whether she thought Eric would meet with the Chief and Darke to try to talk things out.  Selectman Gorski said she didn’t know if Eric would be willing to sit and talk with them; that Darke would have to call him and ask.  She expressed several of her feelings to Kirmelewicz about decisions he has made and Kirmelewicz in turn told her his concerns about her son that had caused him and others to be worried about him; that they had only wanted to get him help and thought he would be back to work by now; that he never thought this would go on for so long.

Darke told Kirmelewicz that he does not feel this situation is a fireable offense; that it’s a decision he made as Chief and he understands that; that he will call Eric Gorski the next day and try to arrange a meeting at the Police Station on Friday afternoon at 4:00pm, if Eric is willing to meet; and that he will let Kirmelewicz know if the meeting will take place.  Ex. 1L.

Kirmelewicz described the conversation with Gorski as follows:

Again, we started talking about her son.  I had said to her, “Why are you trying to take my job away”?  And she said, “I supported you to get this job.”  And I said I appreciate – “I appreciated your support at the time.”  I said, “But what you’re doing now is wrong.”  And she said, “You’re trying to ruin my son’s reputation and livelihood.”  And I said, “All I’ve tried to do is the right thing here, and I’m being persecuted for it.”

Gorski similarly testified:  “He said why are you trying to take my job away from me….  I said I’m not, Bob.  I said why are you trying to ruin Eric’s career, reputation and name.”

The only other testimony that any witness gave about the meeting was as follows.  Kirmelewicz testified, that “at one point Selectman Darke suggested that himself, me and Officer Gorski get together and have a meeting and discuss things.”  Gorski testified, “Not much happened after that.  Kind of came to a conclusion.”

Darke testified that the discussion between Gorski and Kirmelewicz “was like any other meeting if you’d been fighting with someone and say, well, why did you do that, why are you doing this, why did you do that.”  Darke wrote, “…we were just talking as people who have known each other for some time.  We were not conducting any town business.”  Ex 8.

Both Darke and Greaney testified that there was no discussion of the chief’s contract.  At the hearing, Kirmelewicz did not recall whether they discussed his employment contract, or exactly what was said about his contract.  He confirmed, however, that in a police report, which is not in evidence, he wrote that after Gorski arrived on March 14, 2012, they did not negotiate his employment contract.

Kirmelewicz’s actions after the March 14 meeting

Kirmelewicz testified that prior to the March 14, 2012 meeting, he filed a report about Selectwoman Gorski’s conduct, and after that date, in “several correspondence,” he made reports about her conduct.[3]

Meetings on March 30 and in late April

Subsequent to the March 14, 2012 meeting, Selectman Darke called Kirmelewicz and stated that Officer Gorski did not sound receptive to having any type of meeting.  A couple of weeks later, there was a posted meeting where Kirmelewicz showed Selectmen Darke and Greaney and Administrative Assistant Lewandowski around the police station.

Selectmen Darke and Greaney held a meeting in executive session on April 26 or 27, 2012.  At that meeting, Kirmelewicz signed a new three-year contract.

Aftermath of contract renewal meetings

 In June or July, 2012, Darke and Greaney each received letters informing them about complaints filed against them at the Ethics Commission relating to the Selectmen’s handling of Officer Gorski and the March 14, 2012 meeting.  There is no evidence about when the complaints were filed with the Commission or who filed them.[4]  After giving sworn interviews, Darke and Greaney submitted their Statements to the Commission.

Darke wrote in his Statement that, after signing Kirmelewicz’s contract, he still wanted to have a management review performed.  The Selectmen posted a meeting for the end of June, and he wanted to vote to get the review started.  According to Darke, the Chief again stated that “he had nothing to hide but did not want the review.”  Darke wrote, “He badgered me and ultimately said ‘maybe the Board of Selectmen should be investigated,’ and that ‘maybe AG Martha Coakley would like to know what is going on.’”  The next week, the Selectmen received a letter that he had cc’d to the Attorney General and the Ethics Commission.  Darke wrote, “Again, in my almost 18 years on the BOS, I have never seen anything like this.”  Ex. 8.

Darke complained in his Statement, “I have been continually pressured, bullied and threatened by the Chief.”  He summarized his frustration with the events regarding the renewal of Chief Kirmelewicz’s contract:  “The end result is that Chief Kirmelewicz got everything he wanted.  He got a new three-year contract...  There has not been a performance review of the chief done.  And, finally, as a result of the situation, I’ve decided not to run again when my term is up.  Even though I still care, it is not worth it.”  Ex. 8.

With regard to the Chief’s contract negotiations, Greaney likewise wrote:  “If anyone was threatened during the contract talks it was me.”  Ex. 10.  In his Statement, he apologized to everyone involved about “this Peyton Place drama.”  He wrote, “I find it all appalling!  I don’t understand why anyone would ever want to serve anyone at any level of the local politics level.  I wish I never got involved with serving my Town.  I will only finish my term as a Selectman at this point.  I most likely will never do anything for my Town after that…..”  Ex. 10.

I. Section 23(b)(2) Claims

To prove that Gorski violated § 23(b)(2)(ii), Petitioner must prove by a preponderance of the evidence that Gorski (a) knowingly or with reason to know (b) used or attempted to use her official position (c) to secure for herself or others (d) unwarranted privileges or exemptions (e) which are of substantial value, i.e., worth $50 or more and (f) are not properly available to similarly situated individuals.

  1. GORSKI’S CONVERSATIONS WITH GILLEN AND MORTON

We first address the allegations that Gorski violated § 23(b)(2)(ii) by communicating directly with Deputy Chief Gillen and Detective James Morton to advocate for her son’s return to active duty.

The Commission has found that public employees used or attempted to use their positions in violation of § 23(b)(2) where they threatened to exercise authority to a person’s disadvantage or they were in a position of authority in relation to a person who could deliver a privilege and they put pressure on the person.[5]  Having reviewed the evidence, we conclude that Gorski improperly used or attempted to use her official position on January 26, 2012 at Coach’s Restaurant when she spoke with Deputy Chief Gillen about her son’s leave, mentioned that “your appointments and contracts are coming up,” and stated that she was going to invoke the rule of necessity in order to address the contracts. 

Gillen’s testimony that Gorski made these statements was corroborated by Cudmore, who had no stake in the matter and seemed credible.  Cudmore reported that he even had a discussion with Gorski about how the rule of necessity works.

Where action on a matter is legally required, the rule of necessity is a procedure characterized as a “tool of last resort” by which an elected board member who otherwise is disqualified from participating in a matter may participate in order to enable a board to reach a quorum.  EC-COI-99-4.  Gorski’s reference to the rule of necessity indicated that she understood that she was prohibited from participating in discussions of the Deputy Chief’s and Chief’s contracts, but would take such action anyway.  Where Gorski previously consistently had recused herself with regard to police matters, her announcement that she would change this pattern in order to decide about the Deputy Chief’s contract and Chief’s contract amounted to a threat.

The evidence shows that Gorski made the statements at Coach’s Restaurant knowingly or with reason to know.  Gillen’s account of the conversation indicates that Gorski understood at the time that Gillen would report her statements to the Chief, providing an occasion for increased consciousness about what she would say.

We also find that Gorski made the comments to secure her son’s return to active duty.  As Gillen reported them, Gorski’s comments included criticism of the Chief’s actions with regard not only to her son’s leave but also other matters, but we are not persuaded that this was the moment when she realized that a totality of circumstances required her to get involved again in general oversight of the Chief’s performance.  Rather, the timing of the conversation, the fact that the initial topic was her son’s leave, and her reference not only to the Chief’s contract but also Gillen’s contract convince us that the purpose of the comments was to urge Gillen to take action to aid her son. 

As the Statement by Darke indicates, procedures were followed when an officer was placed on administrative leave, and whether a leave would end would be determined based on the circumstances of the case.  The Commission has previously concluded that an “unwarranted privilege” is one that is “[l]acking adequate or official support” or “having no justification; groundless.”  See EC-COI-98-2.  For Gorski to secure her son’s return to active duty just because she, a Selectman, asked for it would give her son an unwarranted privilege not properly available to similarly situated individuals.  The privilege was of substantial value because, if returned to active duty, her son would once again earn compensation and accrue benefits rather than using up sick time that he already had accrued.  Accordingly, we find that Gorski violated §23(b)(2)(ii) by threatening her subordinate with action on his contract in an attempt to influence him to secure a return to active duty for her son.

We decline to find that Gorski violated § 23(b)(2)(ii) in the other instances in which, according to Gillen, Gorski mentioned the employment contracts for the Deputy Chief and Chief, because of lack of corroboration or other reasons.  Gillen testified that she mentioned the contracts on December 3, 2011, but Gorski denied it.  If the Commission finds that two witnesses providing contradictory testimony as to a required element of the violation are both credible, Petitioner does not meet the preponderance of evidence standard.  “The 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, 587 (1952).

This principle also guides us with respect to Gorski’s statements to Gillen outside the Selectmen’s meeting on February 27, 2012 that “It’s too bad” and “It’s sad.”  Gillen regarded these statements and the “smirk” that accompanied them as threats about his contract because they came right before his contract negotiations with the other Selectmen.  Gorski explained that her statements were a comment about damaged friendships.  Objectively, the wording of the statements themselves is more a commentary than a threat, and what “it’s” refers to is unclear, so it would require a leap to conclude that the reference was to the contracts or any action by her with regard to them.  In addition, by February 27, 2012, Gorski had received advice from the Ethics Commission and again decided not to attend BOS meetings about the Deputy Chief and Chief’s employment contracts.  Gillen acknowledged that he was trying to avoid an encounter with Gorski when she left the Selectmen’s meeting because he knew she would not sit in on their negotiations.  When assessing the two witnesses’ credibility, it is at least equally persuasive that Gillen overreacted in perceiving Gorski’s statements as a threat.

Finally, Petitioner has not proven by a preponderance of the evidence that Gorski violated § 23(b)(2) by asking Detective James Morton whether the union was doing everything it could to help her son.  First, the evidence suggests that Gorski was communicating with him in his role as a union representative rather than trying to influence a police officer to reverse her son’s administrative leave.  Second, nothing in her question to Morton suggested that it was a threat, or that any consequence would follow for Morton for failure to respond to it, or that she otherwise invoked her authority as a Selectman.  Finally, Morton contemporaneously reported to the Chief and also testified at the hearing that Gorski did not discuss her son’s situation with him and that he did not feel intimidated during their conversation.  These statements are consistent with Gorski’s statements that she was not trying to influence Morton.

  1. GORSKI’S CONVERSATIONS WITH SELECTMEN DARKE AND GREANEY AND CHIEF KIRMELEWICZ

Petitioner alleged that Gorski violated § 23(b)(2)(ii) by telling Selectmen Darke and Greaney that she was upset about her son’s situation and by discussing her son’s situation at a March 14, 2012 BOS executive session concerning the Chief’s employment contract negotiations.  A thread in the testimony by Chief Kirmelewicz and Deputy Chief Gillen was that Gorski had misused her position either by pressuring Chief Kirmelewicz to improve her son’s employment situation or by influencing her fellow Selectmen to change her son’s employment status or pressure the Chief 3to do so.

As explained, below, however, the evidence does not support a finding that Gorski violated § 23(b)(2)(ii) in her conversations either with her fellow Selectmen or with Kirmelewicz.

Evidence with regard to Gorski’s influence on the Selectmen

The conversation on March 14, 2012 in which Gorski spoke directly with Chief Kirmelewicz and Selectmen Darke and Greaney will be addressed below.  Putting that conversation aside, there was no evidence that Gorski had any direct communications with Kirmelewicz about her son’s employment situation from November 7, 2011, when he put her son on administrative leave, until July 13, 2012, when her son was returned to active duty.

The only testimony by Gorski, Darke or Greaney about direct communications between Gorski and the other two Selectmen about her son’s leave was that she told Darke and Greaney, each maybe twice, that she was upset about Eric’s situation.  We do not conclude that these statements, without more, prove a § 23(b)(2) violation.  In these statements, Gorski expressed her own emotional state, but made no attempt directly or indirectly to secure a change in her son’s employment status.

Gorski testified that she never tried to influence the other Selectmen in their actions dealing with Eric’s administrative leave.  Darke also testified that Gorski did not influence him or attempt to influence him in any way whatsoever in connection with her son Eric’s situation.

Again momentarily putting aside the March 14, 2012 conversation, there is also no evidence that Gorski had any communications directly with the Chief about his employment contract from November 7, 2011 through late April, 2012 when the other two Selectmen renewed it.

Prior to January 30, 2012, Gorski consistently had recused herself as a Selectman from matters regarding the Police Department.  On January 30, 2012, during executive session of a BOS meeting, Gorski informed Selectmen Darke and Greaney that she wanted to participate in the negotiations of the contracts for the Chief and Deputy Chief.  What happened next, however, demonstrated that she did not hold sway over her fellow Selectmen with regard to these issues.  Rather than accepting that she would participate, the Selectmen postponed the negotiations so that Gorski could get an opinion from the Ethics Commission.

After receiving advice from the Ethics Commission, Gorski attended no BOS meetings with regard to the negotiations of the two employment contracts.  Gorski, Darke and Greaney did not testify about any communication by Gorski with either Darke or Greaney about either contract after January 30, 2012.  Gorski testified that she never tried to influence Selectmen Darke and Greaney in their actions involving negotiations of the contracts with the Chief or Deputy Chief.

Before Kirmelewicz attended his contract negotiation with Selectmen Darke and Greaney on February 27, 2012, he received a text from Gillen, who just previously had the conversation with Gorski in which she said, “It’s too bad” and “It’s sad.”  Nothing in those statements, however, suggested that Gorski had taken action unfavorable to the Deputy Chief or Chief’s contract negotiations or was pressuring the other Selectmen to act unfavorably with regard to either contract.

Next, there was conflicting evidence about whether Gorski pressured the other Selectmen or tried to influence them during Kirmelewicz’s contract negotiations.  At the two meetings with Gillen and Kirmelewicz on February 27, 2012, Selectman Darke suggested a management review of the Police Department.  About each of their meetings, Kirmelewicz and Gillen testified, in lockstep, that Darke stated that they were getting a “lot of pressure” from Gorski.

Darke, however, testified that at the February 27 meeting he did not tell either the Chief or the Deputy Chief that Gorski had pressured him.  He testified that Gorski did not contact him in any way whatsoever regarding either the Chief’s contract or the Deputy Chief’s contract, and that he did not have any conversations with Gorski about the renewal of either contract.  In his Statement, he also wrote that he “was never pressured by Selectwoman Gorski to behave in any manner toward the Chief.”  Ex. 8.

With regard to the February 27, 2012 meetings, Darke testified that he had a number of concerns about how Kirmelewicz treated personnel, including Officer Gorski.  His Statement also outlines these concerns, as previously noted.  Darke’s insistence that the management review was his own idea contradicts the suggestion that Gorski had imposed the idea upon him.

On March 5, 2012, Selectmen Darke and Greaney met again with Kirmelewicz.  Kirmelewicz testified that, at that meeting as well, he was told, “We’re getting a lot of pressure from Selectwoman Gorski.”  According to Darke, however, it was Kirmelewicz who accused the Selectmen of being influenced by Gorski.  Darke denied that he was “influenced by anybody.”

The clear contradiction between Kirmelewicz’s testimony and Darke’s testimony about whether Darke stated that Gorski was pressuring the Selectmen requires the Commission to assess the witnesses’ credibility.  Relying on the principle stated in Kinsella, it would be sufficient to conclude that Kirmelewicz’s testimony was not more credible than Darke’s to find that Petitioner fails to meet the burden of proof.   In actuality, however, Kirmelewicz’s testimony was less credible than Darke’s.

When Darke proposed the management review, Kirmelewicz repeatedly responded that the Selectmen should approve his contract first.  Insisting on having a contract renewed before a performance evaluation is done turns usual employment practice on its head.  Kirmelewicz’s entire course of conduct suggested that he regarded himself as a victim and consistently took self-protective action to make certain that the Selectmen would not evaluate his actual performance as police chief before renewing his contract.  This included bringing or attempting to bring to bear the authority of various state agencies.  Kirmelewicz took this action during a period of time when Gorski was not attending Selectmen’s meetings and had not even spoken with him directly since the previous November.

The Selectmen met with Kirmelewicz on February 6, 2012, and Gorski did not attend.  Subsequently, on February 9, 2012, Kirmelewicz met with District Attorney Blodgett in hopes that Blodgett would bring a criminal claim against Gorski, but Blodgett declined to file an action.  The Selectmen met on February 27 and again on March 5, 2012, and Gorski did not attend.  On March 7, 2012, Kirmelewicz filed a complaint with the State Ethics Commission against Gorski.  In the letter, he talks about “malicious manipulation” by Gorski and “a reign of terror” at the Police Department as a result of Gorski’s efforts.  He wrote that both of the other selectmen are intimidated by Gorski.  Greaney testified, and his notes confirm, that on March 8, Kirmelewicz threatened Greaney that he would file a second complaint, this time against the entire board, if his contract was not renewed at the next meeting.  According to Darke, in June, 2012, even after Kirmelewicz had gotten his new contract, he still resisted a management study of the police department and, to fend it off, sent a letter about the Selectmen to the Attorney General and the Ethics Commission.[6]

In a comparison of the testimony, Darke’s explanation that the management review was his own idea was supported by examples and was persuasive.  There was no testimony by Darke or Greaney that Gorski had orchestrated the management review from behind the scenes, or that she otherwise exerted any influence with regard to the Chief’s contract.  Rather, both Darke and Greaney wrote in their Statements that they were “threatened” or “bullied” by the Chief.   Ex. 8, 10.  In their Statements and the testimony about them, both Darke and Greaney made compelling comments that the sequence of events had lead them to decide not to continue to serve as Selectmen after their terms ended.  Ex. 8, 10.  On the whole, their testimony with regard to the contract negotiations was more credible than the Chief’s.

The March 14, 2012 discussion

Finally, Petitioner contends that Gorski misused her position as a Selectman by “participating extensively in the March 14, 2012 BOS executive session meeting concerning the Chief’s job contract negotiations.”  OTSC, par. 22.  The weight of the evidence, however, is that the meeting was over by the time Gorski arrived and that the Chief’s contract was not the subject of discussion.

The evidence shows that Selectmen Darke and Greaney met with Kirmelewicz about his contract, but Gorski initially did not attend.  Subsequently, Darke proposed to Kirmelewicz to have Gorski come to Town Hall.  There was differing evidence as to whether the discussion that subsequently took place between Gorski and Kirmelewicz was part of the Selectmen’s meeting or happened after the meeting had ended.

The original Executive Session Minutes indicate that the meeting included the discussion between Gorski and Kirmelewicz.  Kirmelewicz also described a continuous formal meeting.  He testified that Darke tied his reappointment to a resolution of Officer Gorski’s situation and then invited Gorski to his contract negotiation meeting, having extracted a promise not to report Darke and Greaney to the Ethics Commission.

Darke and Greaney, however, testified that the evening proceeded in two parts.  Initially, according to Darke, they again talked about a performance evaluation, and then they scheduled a time to meet with the Chief at the police station.  Both Darke and Greaney consistently stated that the meeting with regard to Kirmelewicz’s contract negotiations ended at that point.  They both testified that it was after this point that Darke raised the possibility with Kirmelewicz of meeting with Gorski.  Each of them added revisions to the minutes indicating that the conversation between Kirmelewicz and Gorski was not part of the contract negotiations.

Although it is a close call, and we are reluctant to distrust information contained in minutes kept contemporaneously with a meeting, Darke and Greaney’s consistent first-hand accounts convince us that, as Gorski contends, the discussion between Gorski and Kirmelewicz did not take place during the course of a Selectman’s meeting, and rather was an informal discussion that happened after the meeting ended.

In addition, apart from their opening salvos -- “Why are you trying to take my job away?” and “Why are you trying to ruin Eric’s career, reputation and name?” -- there was no other evidence that their discussion was about Kirmelewicz’s employment contract, or that Gorski used the opportunity to impose upon Kirmelewicz to change her son’s employment status.  Darke and Greaney’s testimony was consistent that the Chief’s contract was not the subject of the conversation, and even Kirmelewicz previously had acknowledged that Gorski did not negotiate his contract on March 14, 2012.  The only comment about a next step regarding Eric Gorski was Darke’s suggestion to have another meeting.  There was no testimony that Gorski made any substantive comment regarding her son.   This record provides no basis for finding that Gorski misused her position either to coerce Kirmelewicz to engage in the discussion or to pressure him in order to secure an unwarranted privilege for her son.

In In re Piatelli, 2010 SEC 2296,[7] the Commission found that a Trustee of Quincy College violated § 23(b)(2) when she contacted the President of the College, who was the appointing authority for positions at the College, and asked him if it would be a problem if her brother applied for an entry level position.  Although she claimed that she did not want to be perceived as someone who forced the President to hire people, she also told the President about her brother’s educational achievements and goals and stated that her brother would be “a good fit for the position.”  Id. at 2300.  The Commission concluded that Piatelli, through this communication, improperly pressured her subordinate to secure a privilege of substantial value for her family member. Id. at 2302.

By contrast, Gorski did not seek out the opportunity to speak with the Chief.  She responded to an invitation from a fellow Selectman to speak with Kirmelewicz.  Darke, Greaney and Kirmelewicz all testified that Kirmelewicz agreed to inviting Gorski, and that he did not express any objection.  Second, based on Darke’s invitation, the expectation was that the conversation would not be about police department business, but about healing relationships.  Even Kirmelewicz acknowledged that Darke “just wanted everyone to get along.”  The actual content of the discussion demonstrates that Gorski did not request a change in her son’s status or leverage any authority regarding his employment.  We conclude that Petitioner has not met the burden of proving by a preponderance of the evidence that Gorski violated § 23(b)(2)(ii) either through her communications with her fellow Selectmen or her discussion with Kirmelewicz on March 14, 2012.

II. Section 17 Claims

To prove a violation of G.L. c. 17(c), Petitioner must show that Gorski was a municipal employee and that in relation to a matter in which the Town of Groveland was a party or had a direct and substantial interest, she acted as agent for someone other than the Town.  To prove a  § 17(c) violation, Petitioner must prove that Gorski “acted for” her son as his “agent.” 

As a matter of precedent, the State Ethics Commission “is not restricted to the common law definition of agency…”  In Re Robert Sullivan, 1987 SEC 312, 314-315.

The Commission interprets “agent” as follows:

Within the meaning of the conflict of interest law, a municipal employee acts as an agent where he acts on behalf of some other person or entity.  In re Zora, 1989 SEC 401, 407; aff'd. No. 89-0937B (Mass. Super. Ct., Plymouth, January 2, 1991). The mere speaking or writing on behalf of another party satisfies the agency element of s. 17. Id.EC-COI-84-6.

In Re Dias, 1992 SEC 574, 575.

A footnote in Dias says:  “If the conduct of the parties is such that an inference is warranted that one is acting on behalf of and with the consent of another, an agency exists as a matter of law.  Choate v. Board of Assessors of Boston, 304 Mass. 298, 300 (1939); In Re Sullivan, 1987 SEC 312, 314.”  Dias, 1992 SEC at 575 n. 1.

The only evidence about communications between Gorski and her son is in an answer to interrogatories.  There, Gorski says that she had several conversations with Eric Gorski regarding his being on administrative leave from the GPD, but that she does not recall the dates or nature of those conversations.  Ex. 7, Interrogatory No. 7.

Gorski’s testimony indicates the opposite of agency.  By her own account, Gorski stated to Gillen on December 3, 2011 that “Eric’s not telling me anything” and on February 27, 2012 that “Eric tells me nothing.”  Similarly, during the discussion at Town Hall on March 14, 2012, when Darke asked Gorski if Eric would be willing to meet with the Chief and the Selectmen, she replied that she “didn’t know if Eric would be willing to sit and talk with them; that Darke would have to call him and ask.”  Ex. 1L.  There was no evidence that Gorski acted with her son’s knowledge or at his request rather than on her own initiative when she spoke about him to Gillen or Morton, to her fellow Selectmen, or to Kirmelewicz.  In addition, the evidence does not include any request by Gorski to any police officer or Selectman about what specifically should be done for her son.  On these facts, we find no violation of § 17.

III. Section 19 Claims

To prove that Gorski violated § 19 as alleged, Petitioner had the burden of proving that she participated as a Selectman in a particular matter in which her son, an immediate family member, had a financial interest.  With the exception of the January 30, 2012 meeting at which she only announced an intent to participate in the negotiation of the Chief and Deputy Chief’s employment contracts, Gorski recused herself as a Selectman from every BOS meeting regarding either their contracts or her son’s employment situation.  In light of our conclusion that her conversation with Kirmelewicz, Darke and Greaney on March 14, 2012 was an informal conversation that took place after  the end of the Selectman’s meeting about the Chief’s contract, we conclude that Gorski did not participate “as a Selectman” in that meeting.

Section 23(b)(3) Claims

To prove that Gorski violated § 23(b)(3), Petitioner was required to prove that a reasonable person would conclude that someone could unduly enjoy her favor or improperly influence her in the performance of her official duties, or that she was likely to act or fail to act as a result of kinship, rank, position or undue influence, and that, without filing a proper § 23(b)(3) disclosure, she nonetheless performed her official duties.  Petitioner alleged that Gorski violated § 23(b)(3) “[b]y acting officially as a BOS member in (1) the ongoing controversy as to whether her son should return to active duty as a GPD police officer and (2) in the contract negotiations regarding the police chief while her son had a pending personnel action before the chief.”

Although we have found that Gorski improperly misused her position when she berated Gillen at Coach’s Restaurant, we do not find that she performed official duties when she engaged in this conduct.  She also did not perform official duties as a Selectman when she approached Eric’s union representative to ask if assistance was being provided to him.  Finally, the evidence also does not show that Gorski performed any official duties with regard to the Chief’s contract, either when she spoke with Kirmelewicz on March 14, 2012 or at any other time.  Accordingly, we find that Gorski did not violate § 23(b)(3) by engaging in these conversations without having previously filed a § 23(b)(3) disclosure.

Conclusion

Petitioner has proved by a preponderance of the evidence that, in violation of § 23(b)(2)(ii), Gorski improperly used her position as a Selectman on January 26, 2012 when she made threats to her subordinate, Deputy Chief Jeffrey Gillen, about the renewal of the employment contracts for Gillen and Chief Robert Kirmelewicz in order to influence him to help return her son to active police duty.  For this violation, Gorski is ordered to pay a civil penalty of $2,500.

All other claims under § 23(b)(2)(ii), § 17, § 19 and § 23(b)(3) are dismissed with prejudice.

[1] Commissioner Murphy abstained from participating in this matter.  Commissioner Mangum participated in the deliberations, but is not a signatory to this Decision and Order because her term ended before it was issued.  Commissioner Mills did not participate in the deliberations.

[2] There is differing evidence about whether the meeting was an executive session.  The minutes indicate that executive session began at 6:16.  A vote by Darke and Greaney, but not Gorski, to close the executive session was recorded at 8:45.  The meeting then was adjourned at 8:46 p.m.  Kirmelewicz testified that the Executive Session placard was posted, the door was locked, and the Selectmen voted to go out of executive session.  On the other hand, after complaints were filed against Darke and Greaney at the Ethics Commission in June or July, 2012, Darke and Greaney each revisited the March 14, 2012 minutes and filed written statements revising them on February 11, 2013.  Darke’s attached statement says that they did not lock the door and did not post the Executive Session sign, and did not officially go into Executive session.  “We all just started talking.”  Ex. 1L – first attached statement.  Greaney’s attached statement says, “I still stand by the feeling we never went into executive session this particular evening….  Although it should have been in executive due to the process at hand.”  Ex. 1L– second attached statement.  Gorski testified that they did not have to unlock or open up to let her in.  She testified that they were not in executive session when she arrived at the meeting and did not go back into executive session when she was there.

[3]  In an affidavit dated February 14, 2014, Kirmelewicz waived confidentiality with regard to having filed a complaint with the Ethics Commission against Gorski on March 22, 2012 “asserting that Gorski intervened to get her son re-appointed to the police force and attempted to retaliate against me and the deputy chief by holding up our contract renewals as chief and deputy chief, respectively.”  Ex. F for identification.  This affidavit was marked for identification, but not introduced as an exhibit, so we do not rely upon it as evidence.

[4] Kirmelewicz was asked whether he ever told his deputy Chief that he had filed a complaint against Darke.  He replied, “At some point I’m sure we discussed that.”

[5] See, e.g,, In Re Haluch, 2004 SEC 1165 (Chairman of the Public Works Commission violated § 23(b)(2) when, in personal negotiations regarding a payment he would receive from a company that needed permits from the Commission to build a pipeline, he stated that he wielded a lot of power and influence in the town and threatened that the pipeline’s bonds would not be released and that he could shut down the pipeline); In Re Travis, 2001 SEC 1014 (state representative who was chairman of the Joint Committee on Banks and Banking violated § 23(b)(2) where he solicited a donation from a bank that had an interest in legislative matters before the banking committee and left phone messages saying “If we can’t deal with this issue, I’m sure we’ll have problems with others” and “I certainly will remember this particular incident.”);  In Re DeWald, 2006 SEC 2051 (Finance Committee chair, who had authority in his official position to review and approve money to pay legal bills for special counsel beyond those that were budgeted, violated § 23(b)(2) when, at the request of a friend who was representing the opposing party, he called special counsel, introduced himself as the Finance Committee chair and tried to persuade her to settle the case); In Re Singleton, 1990 SEC 476 (Fire Chief violated § 23(b)(2) where, at a time when a company was evaluating whether to use his son’s company as a drywall subcontractor for a project, he asked the company’s foreman whether he had decided who would get the drywall work and told the foreman “it could take forever” to obtain an inspection from the Fire Department).  See also EC-COI-87-31 (Chair of the Board of Health was advised that he could not put implicit or explicit pressure on the Health Agent or other Board members to treat his own restaurant differently from other food establishments with respect to licenses, permits, inspections and the like).

[6] While Chief Kirmelewicz is not the subject of this adjudicatory hearing, based on the testimony and Statements by Darke and Greaney and the notes Greaney wrote about Kirmelewicz’s call to him on March 8, 2014, we conclude that the Chief improperly engaged in threatening and intimidating conduct, including threatening these selectmen with complaints to the Ethics Commission in order to discourage them from assessing his job performance.   The purpose of a confidential complaint to the Ethics Commission is to alert our civil enforcement agency to instances in which governmental employees put their own personal, family and business interests ahead of the public interest.  We cannot condone the Chief’s aggressive, self-serving threat or use of this process in order to prevent governmental employees from properly performing public duties that could have proven disadvantageous to him.

[7] In Re Piatelli, 2010 SEC 2296, motion for judgment on the pleadings denied sub nom. Piatelli v. State Ethics Commission, Superior Ct. Civ. Action No. 2010-02123-B  (Oct. 19, 2011)  (Giles, J.), aff’d, 84 Mass. App. Ct. 1107, 991 N.Ed.2d 665 (2013), appeal denied, 466 Mass. 1108, 996 N.E.2d 474 (2013).

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