| Date: | 04/26/2010 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 07-0013 |
Petitioner, the Enforcement Division of the State Ethics Commission, alleges that Theresa Lord Piatelli, who at all relevant times was a member of the Board of Governors of Quincy College, a municipal agency, violated the conflict of interest law by actions taken with respect to two of her relatives, her cousin, John Farrell, and her brother, Daniel Lord. Piatelli, an attorney, represented her cousin, John Farrell, in civil and criminal matters. In 2001, as part of a plea bargain, Piatelli asked the President of the College, Sean Barry, to arrange to have Farrell do 200 hours of community service at Quincy College. Petitioner alleges that on June 3, 2002, Piatelli asked President Barry to write a letter to the court misrepresenting that Farrell had completed his community service when in fact he had not completed it. With respect to this latter request, Petitioner alleges that Piatelli violated §§17(c), 23(b)(2) and 23(b)(3). Piatelli denies the allegations and contends that she asked for a letter stating the accurate status of Farrell's community service.
In addition, Petitioner alleges that in the spring of 2003, Piatelli imposed upon President Barry to hire her brother, Daniel Lord, to a position in the College's enrollment department for which he was not qualified. About two months after Barry hired her brother to the position, Lord was transferred from the Quincy campus to the Plymouth campus of the College. Petitioner alleges that Piatelli again imposed upon President Barry to transfer her brother back to the Quincy campus in the position of Allied Health Staff Specialist. Petitioner alleges that in taking these actions, Piatelli violated G.L. c. 268A, §§ 19, 23(b)(2) and 23(b)(3). Piatelli counters that, as a Board of Governors member, she did not engage in any conduct or use her position to seek any advantage for her brother, and she denies the allegations.
Petitioner issued the Order to Show Cause in this matter on May 2, 2007. An adjudicatory hearing commenced on March 11, 2009.
On April 1, 2009, Piatelli filed a motion for summary decision dismissing the alleged violations of G.L. c. 268A, § 23(b)(2) and § 23(b)(3) regarding John Farrell. The motion did not seek dismissal of the § 17(c) allegation with regard to Farrell. The Presiding Officer reserved the motion for consideration by the full Commission. See 930 CMR 1.01(6)(f). Piatelli renewed the motion at the end of Petitioner's case in chief, and the Presiding Officer again reserved decision.
The adjudicatory hearing concluded on May 26, 2009. A motion to allow Petitioner to file an Amended Order to Show Cause ("Amended OTSC") was allowed on November 4, 2009. The Amended OTSC corrected certain language in the allegations regarding Farrell to conform to the evidence.
In rendering this Decision and Order, each undersigned member of the Commission has considered the testimony, the evidence in the public record and the arguments of the parties.
1. Piatelli was a member of the Quincy College Board of Governors (“BOG”) from 1994 to 2006, and its Chair from 1998 forward. The BOG hires and fires the President of the College. Piatelli also is an attorney.
2. John Farrell is Piatelli’s first cousin. Farrell retained Piatelli as his attorney in relation to an indictment in the Norfolk Superior Court on criminal charges and in subsequent civil suits from 1997 through 2001. The criminal case was resolved with a plea bargain on January 8, 2001. Among other conditions, the plea bargain included 60 days in the house of correction, which was suspended for two years subject to probation with conditions that included the performance of 200 hours of community service.
3. Piatelli called Sean Barry,[1] President of Quincy College, from the court and arranged to have Farrell do community service at the College. On January 12, 2001, Piatelli sent a letter to the office of the Massachusetts Attorney General confirming this arrangement.
4. After the court appearance, Piatelli did not hear from Farrell because he was angry about the amount of her legal bill.
5. At the end of May or beginning of June, 2002, John Farrell received a letter from Joan Rockett at the Probation Department of the Norfolk County Superior Court notifying him that he had to appear at the probation department or the court on a specific date. Because he was recovering from back surgery, Cindi Farrell, John’s wife, dropped off the letter at Piatelli’s office, left a message that John could not make the court appearance and asked Piatelli to get another date. Piatelli called Rockett on June 3, 2002 to ask if she could give Farrell another date. In the same conversation, Rockett asked Piatelli if she knew if Farrell had completed his community service. Piatelli then called Sean Barry at the College.
6. On June 3, 2002, Piatelli sent a letter to Rockett, with a copy to John Farrell. The letter stated: “This is to confirm our telephone conversation of earlier today, wherein you had advised that you were looking for confirmation of Mr. Farrell’s community service at Quincy College. I understand from speaking with President Sean Barry that you will be receiving that confirmation within the next few days.”
7. Sean Barry wrote a letter on Quincy College stationery dated the same day, June 3, 2002, to Rockett at the Norfolk Superior Court. The letter states, “I understand that Mr. John T. Farrell III has, since February 2001, performed more than 200 hours of service, as community service, to the college on matters related to our technology systems. I understand that this information will be helpful to you.”
8. Piatelli received and read the letter from Barry to the court.
9. Farrell did not in fact begin or complete 200 hours of community service at Quincy College, either before June 3, 2002 or at any time thereafter. Farrell had a conversation with Barry in which Barry indicated that his community service would consist of basic set-up of computers and cabling, and that Barry or someone else would get back to him. Farrell left two messages, and received no response. He had one further short phone call with Barry, and no one from the College followed up.
10. Farrell’s probation was terminated and the case against him was closed on March 20, 2003.
Section 17(c) prohibits a municipal employee from acting as attorney for someone other than the municipality in connection with a particular matter in which the municipality or a municipal agency is a party or has a direct and substantial interest. Petitioner has proved that Piatelli violated § 17(c) by acting as attorney for her cousin in seeking certification from President Barry that Farrell had performed community service at the College.
As a BOG member, Piatelli was a municipal employee of the City of Quincy for purposes of the conflict of interest law. Having just spoken to the Probation Department on behalf of Farrell in her capacity as Farrell's attorney, Piatelli continued to act in her capacity as his attorney when she called President Barry to ask for a letter about Farrell's community service, a condition of Farrell's probation. Piatelli does not dispute that she made that call.
Barry, acting as College President, previously had agreed with Piatelli that Farrell could complete his community service requirement at the College. The College, a municipal agency, was a party to the agreement. In addition, the community service to be performed by Farrell had a value to the College since the College would receive the benefit of his services at no cost. Accordingly, we find that Piatelli, acting as attorney for Farrell, violated § 17 when she represented the interests of her client in seeking certification from Barry of Farrell's community service obligation.
Under § 23(b)(2), a municipal employee may not, knowingly or with reason to know, use or attempt to use his official position to secure for himself or others an unwarranted privilege or exemption of substantial value which is not properly available to similarly situated individuals. Petitioner alleges that Piatelli "told the President to write a letter stating that her cousin had completed the community service at the College, even though her cousin had not yet performed the work." The allegation is that, "by asking her subordinate to write a letter misrepresenting that her cousin had performed community service work at the College, Piatelli knowingly or with reason to know used her BOG chairperson position to secure for her cousin an unwarranted privilege of substantial value that was not properly available to similarly situated individuals."
There is no question that Farrell received an unwarranted privilege. Farrell indisputably never performed the community service, but the letter that President Barry wrote to the probation department indicated that he had completed it. [3] The false information in the letter enabled Farrell to meet a condition of his probation.
We are unable to find, however, that it was more likely than not that Piatelli asked Barry to misrepresent the facts about Farrell's community service. The only account we have of the request Piatelli made to Barry about the community service is Piatelli's, and she testified that she told Barry "they're looking for a letter or some confirmation that this has either happened or is going to happen…" Petitioner challenges Piatelli's credibility, contending that Barry would not have written a false statement to the probation department unless Piatelli had asked him to do so. The fact that Barry's statement in his letter to Rockett was untrue and gave Piatelli's client what he needed does not necessarily prove that instead of requesting a status report, Piatelli actually requested what Barry wrote, however. Petitioner has not presented sufficient evidence to persuade us that Piatelli was not credible or that Barry did not give a false report of the actual status of Farrell's community service of his own accord.
Petitioner has not proved by a preponderance of the evidence that Barry made the misrepresentation at Piatelli's instruction, and therefore has not proved a violation of § 23(b)(2) with respect to Piatelli's conduct regarding her cousin. Whether Piatelli was professionally obligated once she received Barry's letter to inquire into whether Farrell had completed his community service is not an issue before this Commission.
Petitioner alleges that, "[b]y asking her subordinate to write a letter misrepresenting that her cousin had performed community service work at the College, Piatelli knowingly or with reason to know acted in a manner which would cause a reasonable person, knowing all the facts, to conclude that her cousin could improperly influence or unduly enjoy her favor in the performance of her BOG duties or that she was likely to act as a result of her relationship with her cousin and/or undue influence from him." (Emphasis added).
Petitioner has not proved that Piatelli violated § 23(b)(3) for two reasons. First, as discussed above, the evidence does not prove that Piatelli asked Barry for a letter misrepresenting that her cousin had performed community service work at the College. Second, there was no evidence that Piatelli performed any official duties as a BOG member in relation to her cousin's community service. While Piatelli served on the BOG, the BOG had never addressed any issue about anyone's community service at the College. Accordingly, the § 23(b)(3) allegation with respect to Piatelli's conduct as to her cousin was not proved.
In light of the foregoing findings that Petitioner did not prove that Piatelli violated § 23(b)(2) or § 23(b)(3) through her conduct in relation to her cousin, Respondent's Motion for Summary Decision Dismissing the Alleged Violations of G.L. c. 268A, §23(b)(2) and § 23(b)(3) Regarding John Farrell is moot.
1. In the spring of 2003, Piatelli's brother, Dan Lord, called her because he had seen advertisements for three entry-level positions at Quincy College and wanted to know if it would be a conflict if he were to apply for a job at the college. Piatelli told him that she would find out and get back to him.
2. About a day later, Piatelli called President Barry and asked if it would be a problem for him if her brother were to apply for an entry-level position. Barry had previously told Piatelli that over the years, Daniel Raymondi, who was another member of the BOG and also a City Councilor, had forced him to hire people, including Raymondi's friends, clients and campaign workers, whom Barry considered unqualified. Piatelli told Barry that she "did not want to be perceived as one of those people" who hampered him this way.
3. Piatelli held a position superior to Barry and a leadership position within the Board of Governors, and had joint responsibility for decisions about hiring or firing him as President.
4. Piatelli promoted her brother's interests during the telephone call with Barry by telling Barry that her brother had graduated from Harvard (in fact, he had graduated from the Harvard Extension School), and that he "had the same passion and belief in affordable educational opportunities" that Piatelli herself had.
5. Piatelli's brother's suitability for the enrollment specialist position was a topic of Piatelli's discussion with Barry, and Barry said that he thought her brother would be "a good fit for the position."
6. After her call with Barry, and at Barry's suggestion, Piatelli called Daniel Raymondi. Raymondi had no responsibility for the hiring process as a fellow member of the BOG, but was influential at the College and in relation to Barry.
7. Piatelli told Raymondi that her brother had recently graduated from Harvard but was having difficulty finding a career, and the college position would be a good fit. Piatelli said she wanted this position badly for her brother, and that she had dedicated an awful lot of time and service on behalf of the college, and her day had come. Piatelli wanted Raymondi to talk to Barry about it.
8. Piatelli also called Thomas DeSantes, who was vice president of marketing and, like Barry, held a position subordinate to Piatelli. DeSantes had responsibilities directly related to the hiring process. DeSantes was "a bit surprised" by the call because it was rare that members of the BOG would call him. According to DeSantes, Piatelli "wanted to discuss her brother's candidacy. She was basically putting in a good word for him telling me that he was a good guy and actually at that time I had learned that he had actually gone or graduated from the college and it had given him a good stepping stone for his education and he wanted to give back and do something for the college." DeSantes told President Barry about this conversation.
9. DeSantes updated the job description, wrote the ad and chose three members of a search committee for the enrollment specialist position. He saw Lord's resume and did not think Lord was qualified for the position.
10. DeSantes had conversations with President Barry at this time. As a result of these conversations, DeSantes and a member of the search committee, Michael Collins, added Lord to the interview pool because they "understood Lord would be getting a position and he had to be part of the process so we could put him in."
11. Beverly Furtado was on the search committee. When Furtado reviewed Lord's resume, and again later when she interviewed Lord, she did not think he was qualified for the position, and neither did the other members of the search committee, including Michael Collins. In both instances, however, Collins passed him on to the next stage of the hiring process. When Furtado learned from Collins that Lord was related to Piatelli, she understood why they were calling him in.
12. DeSantes interviewed the final candidates. During his interview with Lord, he did not talk about qualifications because "I didn't believe it was relevant because I knew him to be getting the position."
13. The President hired Lord on May 2, 2003. Lord was appointed at a yearly salary of $32,186.
14. On May 27, 2003, Piatelli, as Chair of the BOG, signed a new employment contract for Barry with a term from July 1, 2003 to June 30, 2007. This contract superseded a previous contract, which was due to expire on June 30, 2004. Because there still was one year left on Barry's contract, the renewal of the contract was voluntary rather than required.
15. Shortly after Lord was hired, DeSantes transferred Lord to an enrollment specialist position on the Plymouth campus because he "didn't want it to be so glaring that the Chair's brother was working on the Quincy campus."
16. There were subsequent communications about transferring Lord back to a position on the Quincy campus. On June 17, 2004, DeSantes wrote a memorandum to Lord to let him know about his transfer status. The memorandum stated, "Due to unforeseen developments and circumstances beyond my control your reassignment to the Quincy campus office of admissions/advising has been delayed. I anticipate a move in September. In the meantime you shall remain at the Plymouth campus. I apologize for any inconvenience."
17. There is contradictory testimony about whether Lord even sought a transfer back to the Quincy campus. DeSantes testified that he "knew from Lord" that Lord wanted to move from Plymouth to Quincy. He also testified that Collins, who handled new postings, told him that Lord had been letting him know he wanted to move. The first statement is vague and undetailed; the second is totem pole hearsay. Lord, for his part, testified that he never had any communications with DeSantes, Barry or Piatelli about wanting to be moved to the Quincy campus, and that "it just came as a surprise to me" when he received DeSantes' June 17, 2004 memorandum talking about the transfer.
18. A memorandum dated July 26, 2004 to Lord stated that Lord would be transferred to the Quincy campus in October 2004. The memorandum stated further, "I want to stress the need for you to indulge me this time and to apply no further pressure upon me regarding your assignment." While DeSantes testified that he wrote the memorandum, DeSantes' assistant secretary testified that he told her at the time that Barry was the actual author.
19. On February 28, 2005, Barry notified Lord that he would be reassigned to the Allied Health Office at the Quincy campus, effective April 4, 2005. This was a new position.
Petitioner alleges that by asking the College President, a subordinate, to hire her brother, Piatelli knowingly or with reason to know used her position as Chair of the BOG to secure a position at the College for her brother. Allegedly, this was an unwarranted privilege not properly available to similarly situated individuals because Lord got the job despite the fact that a search committee and a hiring manager determined that he was not qualified for the position. We agree that Piatelli violated § 23(b)(2) with regard to the hiring of her brother.
It is undisputed that, at all relevant times, Piatelli was a member of the Board of Governors of Quincy College, and therefore a municipal employee for purposes of the conflict of interest law.
Piatelli's own statements about her conversation with Barry provide sufficient basis for a finding that Piatelli knowingly used her position as a BOG member to influence Barry to give a job to her brother. After learning from her brother of his interest in the Quincy college positions, Piatelli contacted President Barry and advocated for her brother's candidacy by telling him of her brother's educational achievements and goals. Piatelli acknowledged that Barry stated during the conversation that her brother would be "a good fit for the position," indicating that his fitness was a subject of discussion between them. Piatelli's admitted reference during her conversation with Barry to Raymondi's behavior in forcing Barry to hire unqualified people makes it clear that she was conscious of her superior position and the influence she had as a BOG member in relation to Barry.
Furthermore, the context in which this conversation took place was that Barry had an even greater incentive than usual to cater to the BOG members' wishes: as Piatelli knew, Barry's upcoming contract renewal made it unlikely that he would fail to take her wishes into account. In sum, the evidence amply demonstrates that Piatelli knowingly used her position as Chair of the BOG to influence Barry's decision about hiring her brother.
The evidence also shows that as a result of Piatelli's use of her position, her brother received an unwarranted privilege. Although a search committee and DeSantes considered Piatelli's brother not to be qualified for the position of enrollment specialist, he nonetheless was interviewed and hired, thereby obtaining an unwarranted privilege.
Appointment to the enrollment specialist position was a privilege, and the privilege was of substantial value, i.e., worth $50 or more. See Comm. v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976), EC-COI-89-32.
Collins, DeSantes and, apparently, Barry kept Lord in consideration and Barry eventually hired him despite the fact that he was considered unqualified for the position. This was an advantage that other unqualified applicants did not receive.
In sum, Petitioner has met the burden of proving that Piatelli violated § 23(b)(2) by using her position as BOG Chair to impose upon Barry to hire her brother.
Petitioner alleges that Piatelli used her position by repeatedly asking President Barry and Vice President DeSantes to transfer her brother back to the Quincy campus. Petitioner alleges that Lord consequently received an unwarranted privilege of substantial value not properly available to similarly situated individuals because when Barry transferred him back to a position in the Allied Health Office at higher pay, the transfer was not on the merits of his application or performance, but as a result of Piatelli's position and advocacy.
Where witnesses on both sides are credible, the Petitioner has not satisfied the preponderance of the 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 (1952). If the Commission finds that some testimony was credible and some was not credible, the Commission is required to provide a reason or explanation for so finding. Kinsella, 1996 SEC at 835.
The evidence that Piatelli advocated for her brother's transfer is either slight or insufficiently reliable, and it is contradicted by Piatelli. Raymondi testified that he knew from Barry, DeSantes, other individuals and Piatelli that Piatelli had conversations with Barry at the time "about her brother's employment at Quincy College." This was the only evidence that Piatelli spoke with Barry. Raymondi's testimony constitutes double hearsay, and does not even include anything anyone told him about what Piatelli purportedly said to Barry. Piatelli, meanwhile, testified that she refused to speak with Barry about the transfer.
Raymondi testified that Piatelli participated in a vote on the budget to create a retention position and told him her brother would be a good fit for the position, but Raymondi could not remember the name of the position or who got the position. Piatelli testified that she was not present for any votes of the BOG involving her brother's position or department. No documentary evidence was introduced about the vote. Raymondi's testimony was too vague and unspecific to be reliable, and is not more credible than Piatelli's denial that she voted.
With regard to the two memoranda from DeSantes about Lord's transfer, the reference in the July 26, 2004 memorandum to "pressure" is to pressure imposed by Lord. The memorandum makes no reference to pressure imposed by Piatelli. DeSantes explained that, by "pressure," DeSantes meant that "it was another way of me letting him know that I really didn't have a hand in it and I just wanted it to stop." This comment, as well, is about pressure from Lord rather than Piatelli. The credibility of DeSantes' statement about pressure on him is undermined by his former secretary's detailed testimony that it was Barry, not DeSantes, who wrote the "pressure" memorandum. The memorandum, whose authorship is in doubt, does not prove by a preponderance of the evidence that Piatelli used her position to secure a transfer for her brother.
DeSantes testified that in the fall of 2004 or winter of 2005, he received a call from Piatelli, who wanted to know why the President had not moved her brother. His testimony about this one telephone call is contradicted, however, by Piatelli's statements that it was DeSantes who initiated any conversation they had about her brother's transfer, and that she told DeSantes she was not interested in discussing her brother's employment.
On balance, the evidence with regard to Lord's transfer is contradictory, and there is insufficient reason to credit Petitioner's witnesses rather than Piatelli's. Petitioner has not proved by a preponderance of the evidence that Piatelli used her position to influence Barry to transfer her brother back to a job on the Quincy campus.
Section 19 prohibits a municipal employee from participating "as such an employee" in a particular matter if an immediate family member has a financial interest in the matter. In G.L. c. 268A, § 1(j), "participate" is defined to mean "participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise." Under § 19(b)(1), an appointed municipal employee may file a disclosure and seek authorization from his appointing authority to exercise his responsibility or authority as he ordinarily would, notwithstanding a financial interest.
Petitioner alleges that Piatelli violated § 19 by asking the College President to hire her brother. A § 19 violation, however, requires participation as a municipal employee in agency action or a particular matter. Piatelli testified that the authority of the BOG "is limited to policy making decisions only, not day-to-day operations of the college." Although she used her clout as a BOG member in her conversation with Barry, and violated § 23(b)(2) by doing so as discussed above, she was not acting on behalf of the BOG or with its authority when she touted her brother's qualifications for an entry-level position. [4]
Piatelli's involvement in the hiring process was limited to at most three conversations in which she spoke about her brother's Harvard degree and passion for public service with Barry and DeSantes, who had responsibility for the hiring process, and Raymondi, who did not. While she clearly communicated her preference and will be held accountable for using her position to influence Barry's hiring decision, as a BOG member she made no decisions and played no part in the College's formal process of determining the qualifications for the enrollment specialist position, screening or interviewing applicants or making the final selection. Accordingly, we find that her conduct did not amount to substantial participation as a municipal employee in agency action or a particular matter.
Petitioner also alleges that Piatelli violated § 19 by asking Barry and DeSantes to transfer her brother back to the Quincy campus. As already discussed above, the evidence is not sufficient to prove by a preponderance of the evidence that she advocated for the transfer. In addition, while Raymondi testified that Piatelli took action as a BOG member by voting to create a position for her brother in the budget, that evidence, as stated previously, was insufficiently reliable to prove a violation.
Petitioner alleges that by asking her subordinates to hire and transfer her brother, Piatelli knowingly or with reason to know acted in a manner that would cause a reasonable person, knowing all the facts, to conclude that her brother could improperly influence or unduly enjoy her favor in the performance of her BOG duties or that she was likely to act or fail to act as a result of her sibling relationship with her brother and/or undue influence from him.
Section 23(b)(3) requires that a municipal employee file a disclosure prior to performing official duties if the circumstances suggest a potential for favoritism or influence when the official duties will be performed. As discussed above, although Piatelli improperly used her position to influence her brother's hiring in violation of § 23(b)(2), Piatelli performed no official duties as a BOG member with regard to the hiring of the enrollment specialist. Because she had no official duties, she had no obligation to alert the public that she could perform her official duties free of favoritism or influence. Piatelli therefore did not violate § 23(b)(3) by failing to file a disclosure when her brother applied for the job. There was also no reliable proof that she performed any official duties as a BOG member with regard to her brother's transfer.
At the time of Piatelli's violation of § 17, the maximum civil fine allowed in that provision was $2,000 per violation. For her violation of § 17(c) by acting as attorney for her cousin, John Farrell, in seeking certification from the College President with respect to community service Farrell was to perform for the College, we assess the full penalty and order a fine in the amount of $2,000.
Pursuant to G.L. c. 268B, § 4(j)(3), a maximum civil penalty of $2,000 was provided for a violation of § 23(b)(2). For her violation of § 23(b)(2) by using her position as a BOG member to influence her subordinate, President Barry, to hire her brother, Piatelli is ordered to pay $2,000. The total penalty therefore is $4,000.
