Decision  In the Matter of James B. Triplett

Date:	09/12/1996
Organization:	State Ethics Commission
Docket Number:	515

• Appearance for Petitioner: Stephen P. Fauteux, Esq. and Karen Gray, Esq.
• Appearance for Respondent: Michael P. Angelini, Esq.
• Commissioners: Brown, Ch., Burnes, Larkin, McDonough and Rapacki
• Presiding Officer: Commissioner Nonnie S. Burnes, Esq.

I. Procedural History

On January 19, 1995, the Petitioner initiated these  proceedings by issuing an Order to Show Cause ("OTSC") pursuant to  the Commission's Rules of Practice and Procedure. 930 CMR  1.01(5)(a). The OTSC alleged that Town of Oxford Police Chief  James Triplett ("Triplett"), violated G.L. c. 268A, s.23 in  relation to several different matters. In particular, the  Petitioner alleged that Triplett violated s.s.23(b)(2) and (b)(3)  by directing that Laurie Carlsen, the daughter of a former Oxford  police officer, be released from police arrest without a bail  hearing being held, and by delaying the initiation of a criminal  complaint against her.[2]   

Triplett filed an Answer on March 24, 1995 in which he denied  the charges relating to the Carlsen incident. He asserted various  affirmative defenses, including that the period of limitations for  such acts has expired. Numerous pre-hearing conferences were held  during 1995 and 1996. At those conferences, procedural issues were  discussed primarily focusing on discovery and scheduling.[3] The  Adjudicatory Hearing, with Commissioner Burnes presiding,[4] was  held on five separate dates: February 7, February 8, March 4,  March 5 and April 4, 1996.[5]   

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II. Findings of Fact

1. Throughout 1991 and 1992, Triplett served as the police  chief for the Town of Oxford.   

2. At 7:49 p.m. on Sunday, September 8, 1991, Oxford Police  Officer Carol LaFleche[6] was dispatched to the scene of a two-car  automobile accident on Clover Street in the Town of Oxford.  Officer LaFleche determined that one of the operators, later  identified as Laurie Carlsen, was intoxicated.   

3. Officer LaFleche identified herself as a police officer  and asked Ms. Carlsen for her driver's license and registration.  Ms. Carlsen refused to comply with Officer LaFleche's request and  responded to Officer LaFleche with profane language.    

4. Officer LaFleche attempted to place Ms. Carlsen under  arrest. Ms. Carlsen resisted and, in doing so, she physically  assaulted Officer LaFleche by kicking at her, trying to bite her  and by pulling a clump of hair from the officer's head.   

5. Oxford Police Officer George Vranos was dispatched to the  accident scene where he subsequently placed Ms. Carlsen into his  police vehicle in order to transport her to the police station.   

6. Ms. Carlsen was placed under arrest at the accident scene  for failing to submit to a police officer, assault and battery on  a police officer, operating under the influence of alcohol and  disorderly conduct.   

7. Ms. Carlsen was transported to the Oxford Police Station  by Officer Vranos.   

8. After being brought into the station, Ms. Carlsen became  combative as Officer Vranos attempted to un-handcuff her. Ms.  Carlsen charged at Dispatcher Patrick Purcell who was assisting  Officer Vranos.   

9. Ms. Carlsen refused to cooperate with Officer Vranos as  they attempted to conduct booking procedures. Because of her  combative behavior, Ms. Carlsen was not fingerprinted or  photographed.   

10. With the assistance of Officer McCann, Officer  Vranos placed Ms. Carlsen in the police station's "female cell." While  attempting to remove the handcuffs, Ms. Carlsen continued to be  combative. She grabbed the antenna of a police radio and stretched  it from its original position. As a result, Ms. Carlsen was also  charged with the malicious destruction of property.   

11. At 9:11 p.m., Officer LaFleche, accompanied by Officer  Vranos, entered the cell in which Ms. Carlsen was held and reread  her rights. Ms. Carlsen did not respond.   

12. Ms. Carlsen is the daughter of the late Robert Carlsen,  a former Oxford police officer. For a period of twelve years,  Robert Carlsen and Triplett both served in the Oxford Police  Department.   

13. At the suggestion of Sgt. Abrahamson, Robert Carlsen was  telephoned and subsequently arrived at the station. Robert Carlsen  asked of Officer LaFleche what had happened. Officer LaFleche  informed Robert Carlsen of the charges pending against his  daughter. He asked Officer LaFleche if there was anything she  could do for him. Robert Carlsen then asked Officer LaFleche to  call Chief Triplett. She did not respond. Dispatcher Purcell  subsequently telephoned Triplett at his home.   

14. Robert Carlsen spoke with Triplett over the telephone.    

15. Officer LaFleche subsequently spoke with Triplett using  a telephone in the sergeant's office. Among other things, Triplett  discussed with Officer LaFleche releasing Ms. Carlsen to her  father. There was no discussion, however, concerning whether Ms.  Carlsen had been bailed.[7] Triplett told Officer LaFleche that if  Ms. Carlsen gave her a hard time upon her release, she was  authorized to place Ms. Carlsen back in the cell.   

16. At 12:10 a.m. on September 9, 1991, Ms. Carlsen was  released from the cell to her father. Upon leaving the station Ms.  Carlsen called Officer LaFleche names and made profane gestures.   

17. During the evening of September 8, 1991, a bail  commissioner was never contacted by Police Department with regard  to Ms. Carlsen's arrest. Ms. Carlsen was, therefore, released by  the Oxford Police Department without a bail commissioner being  contacted or bail being set.   

18. Subsequent to Ms. Carlsen's release, Officer LaFleche  left the original paperwork concerning Ms. Carlsen's arrest on  Triplett's desk.   

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19. Triplett delivered the application for criminal complaint  concerning Ms. Carlsen to Dudley District Court on Friday,  September 13, 1991.[8]   

20. A magistrate's hearing concerning the charges against Ms.  Carlsen was conducted at the Dudley District Court on October 16,  1991.   

21. Ms. Carlsen's case was finally disposed of on March 19,  1992 when the three traffic violations with which she had been  charged (including Operating Under the Influence of alcohol) were  continued for one year without a finding and the assault and  battery on a police officer charge was dismissed. According to the  Application for Complaint, on October 16, 1991, the malicious  destruction of property and disorderly conduct charges were  dismissed. (Exhibit 61).   

22. Triplett and Robert Carlsen had not previously been and  were not at times relevant to the arrest of Ms. Carlsen friendly  with each other.[9]   

23. Triplett did not make a written disclosure to his  appointing authority regarding his involvement in events following  the arrest of Ms. Carlsen.[10]

III. Allegations

The Petitioner alleges that "[b]y directing Laurie Carlsen's  release from police arrest without a bail hearing first being held,  and by delaying the initiation of a criminal complaint against  Laurie Carlsen so that her father would have an opportunity to  persuade the arresting officer to drop the charges, Triplett  knowingly, or with reason to know, used or attempted to use his  office as chief of police to secure for Laurie Carlsen an  unwarranted privilege or exemption of substantial value which was  not properly available to similarly situated individuals." In  support of its allegation that Triplett thereby violated s.23(b)(2)  the Petitioner further alleges that "[f]ollowing Laurie Carlsen's  arrest and release, Robert Carlsen requested that Triplett refrain  from seeking a criminal complaint against his daughter until he had  the opportunity to persuade LaFleche not to pursue charges." The  Petitioner also alleges that "Triplett agreed, and held up the  Laurie Carlsen criminal complaint application for two weeks.  During this period, Robert Carlsen unsuccessfully tried to convince  LaFleche to drop the criminal charges."   

With regard to s.23(b)(3), the Petitioner alleges that "[b]y  directing Laurie Carlsen's release from police arrest without a  bail hearing first being held, and by delaying the initiation of a  criminal complaint against Laurie Carlsen so that her father would  have an opportunity to persuade the arresting officer to drop the  charges, Triplett knowingly, or with reason to know, acted in a  manner which would cause a reasonable person to conclude that he  can be improperly influenced and that Robert and Laurie Carlsen can  unduly enjoy his official favor as police chief." In support of  its allegation, the Petitioner alleges that "Robert Carlsen and  Triplett were friendly, and served together on the Oxford Police  Department for 12 years." According to the Petitioner, "Triplett  made no written disclosure to the Board of Selectmen detailing his  delay of the Laurie Carlsen complaint application, or his release  of Laurie Carlsen from police arrest."

IV. Decision

As a preliminary matter, we must decide whether, at the  relevant time, Triplett was a municipal employee[11] subject to  G.L. c. 268A. In his Answer, the Respondent admitted that he is  the chief of police, but he denied, without explanation, that he is  a municipal employee. We conclude that at the time relevant to the  allegations in question here, the Respondent was a municipal  employee who was subject to the conflict of interest law.[12]

A. Section 23(b)(2)

Section 23(b)(2), in relevant part, provides that "No current  officer or employee of a . . . municipal agency shall knowingly or  with reason to know: . . . (2) use or attempt to use his official  position to secure for himself or others unwarranted privileges  which are of substantial value and which are not properly available  to similarly situated individuals."   

We find that the Petitioner has failed to prove by a  preponderance of the evidence that Triplett violated s.23(b)(2).  The record is devoid of direct evidence that Triplett knew or had  reason to know that Ms. Carlsen had not been bailed prior to her  release during the early morning of September 9, 1991.  Furthermore, we cannot reasonably infer such a finding based on the  circumstantial evidence in the record. As to the allegation that  Triplett used his position to delay the initiation of a criminal  complaint against Laurie Carlsen so that her father would have an  opportunity to persuade the arresting officer to drop the charges,  the Petitioner has relied heavily on the deposition of Robert  Carlsen. After reviewing the deposition transcript, we   

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decline to credit Robert Carlsen's deposition on this point.  Moreover, the record does not contain sufficient other evidence of  Triplett's use of his position to secure for Laurie Carlsen an  unwarranted privilege or exemption of substantial value. We  therefore find that the Petitioner has failed to prove by a  preponderance of the evidence[13] that a violation of s.23(b)(2)  occurred.

B. Section 23(b)(3)

Section 23(b)(3) of the conflict of interest law provides that   

[n]o current officer or employee of a state, county or  municipal agency shall knowingly, or with reason to know:   

(3) act in a manner which would cause a reasonable person,  having knowledge of the relevant circumstances to conclude  that any person can improperly influence or unduly enjoy his  favor in the performance of his official duties or that he is  likely to act or fail to act as a result of kinship, rank,  position or undue influence of any party. It shall be  unreasonable to so conclude if such officer or employee has  disclosed in writing to his appointing authority or, if no  appointing authority exists, discloses in a manner which is  public in nature, the facts which would otherwise lead to such  a conclusion.   

We find that the Petitioner has failed to prove by a  preponderance of the evidence that Triplett and Robert Carlsen were  friendly as alleged.[13] Moreover, we find no other basis for  concluding that Triplett acted in a manner which would cause a  reasonable person to conclude that he could be improperly  influenced or that Robert and Laurie Carlsen could unduly enjoy his  favor in the performance of his official duties. Accordingly, we  find that the Petitioner has not proven by a preponderance of the  evidence that Triplett acted in a manner violative of s.23(b)(3).

V. Conclusion

After weighing the evidence, we conclude that the Petitioner  has not proven, by a preponderance of the evidence, that Triplett  violated G.L. c. 268A, s.s.23(b)(2) and 23(b)(3) by directing that  Laurie Carlsen be released from police arrest without a bail  hearing first being held, and by delaying the initiation of a  criminal complaint against her.

[1] This Amended Decision and Order supersedes a previous  Decision and Order.   

[2] The OTSC contained a total of ten counts alleging various  violations of s.s.23(b)(2) and (b)(3). In its Decision and Order  dated March 27, 1996, the Commission allowed a joint motion of the  parties requesting that it: (1) resolve charges 2, 6 and 8 by  authorizing the Commission's Executive Director to execute a  Disposition Agreement; (2) dismiss charges 1, 3, 4, 5 and 7; and  (3) continue the adjudicatory proceeding as to charges 9 and 10  (concerning the Laurie Carlsen incident). Accordingly charges 1,  3, 4, 5 and 7 were dismissed. The Commission's Executive Director  executed a Disposition Agreement in relation to charges 2, 6 and 8  by which the Respondent agreed to pay to the Commission the sum of  two thousand dollars ($2000) as a civil penalty for his course of  conduct in violating G.L. c. 268A, s.23(b)(3).   

[3] Commissioner Burnes was the duly designated presiding  officer in this proceeding. See G.L. c. 268B, s.4(e).   

[4] Oxford Selectman Herbert Rhinehart submitted a Statement  for the Record pursuant to 930 CMR 1.01(8) on April 29, 1995. That  statement was subsequently amended on several occasions and became  part of the record in this case.   

[5] LaFleche now uses the name Carol Knapp.   

[6] There was no direct evidence to contradict Triplett's  testimony that no discussion about bail occurred.   

[7] We credit the testimony of Triplett, Fleming and Black.   

[8] We credit the testimony of Triplett and Saad.   

[9] The Petitioner and the Respondent stipulated to this  factual finding.   

[10] Municipal employee is defined, in relevant part, as a  person performing services for or holding an office, position,  employment or membership in a municipal agency, whether by  election, appointment, contract of hire or engagement, whether  serving with or without compensation, on a full, regular, part-  time, intermittent, or consultant basis. . . G.L. c. 268A, s.1(g).   

[11] With respect to the Respondent's limitations defense, the  Petitioner has met its burden under the Commission's statute of  limitation regulation, 930 CMR 1.02(10), in that it has filed a  affidavit from the Enforcement Division Investigator responsible  for the case indicating no complaint relating to this alleged  violation was received more than three years before the OTSC  issued. (Exhibit 1). An affidavit from Triplett's public agency  employer was also submitted during the hearing indicating that the  agency was not aware of any complaint more than three years prior  to the issuance of the OTSC. (Exhibit 2). Pursuant to the above-  cited regulation, the Respondent may only prevail on a statute of  limitations defense if he can show that more than three years  before the issuance of the OTSC, the relevant events were a matter  of general knowledge in the community or the subject of a complaint  filed with the Ethics Commission, the Attorney General, the  District Attorney or the respondent's public agency (in the case of  a s.23 violation). We find that Respondent has failed to   

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meet this burden under the regulation and the statute of  limitations defense therefore must fail.   

[12] The Petitioner must prove by a preponderance of the  evidence that the Respondent violated the conflict of interest law.  See 930 CMR 1.01(9)(m)2; Craven v. State Ethics Commission, 390  Mass. 191, 200 (1983). The Respondent's assertion that the  Petitioner should be held to a standard of "clear and convincing  proof" is incorrect.    [13] To the contrary, the record suggests finding that a  certain degree of animosity had developed between Triplett and  Carlsen.   

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