| Date: | 12/09/1991 |
|---|---|
| Organization: | State Ethics Commission |
| Referenced Sources: | G.L. c. 268A, Conflict of Interest Law |
- This page, Public Education Letter 92-1: Kevin Fitzgerald, is offered by
- State Ethics Commission
Letter Ruling
Letter Ruling Public Education Letter 92-1: Kevin Fitzgerald
Table of Contents
Representative Kevin Fitzgerald
Dear Representative Fitzgerald:
As you know, on September 11, 1991, the State Ethics Commission commenced a preliminary inquiry into allegations that you violated G.L. c. 268A, §§3, 23(b)(2) and (b)(3) by your official dealings with Mary Guzelian (Guzelian) and your ultimate acceptance of a bequest from her estate. On October 25, 1991, the Commission found reasonable cause to believe that you violated §§3 and 23(b)(3). (The Commission has not voted to find reasonable cause to believe you violated §23(b)(2).) Aware that the Attorney General and the United States Attorney may be conducting investigations into your dealings with Guzelian or her estate, the Commission also directed the staff to refer its investigative materials to those agencies for any action they deem appropriate. Finally, in view of certain mitigating circumstances discussed below, the Commission voted to resolve its inquiry by issuing this Public Enforcement Letter.[1]
By agreeing to this public letter as a final resolution of this matter, the Commission recognizes that you do not admit to the facts and law as discussed below. (You deny or have no knowledge of many of the facts and you maintain that your conduct did not violate the conflict law.) The Commission and you are agreeing that there will be no formal action against you and that you have chosen not to exercise your right to a hearing before the Commission. You have waived no other rights other than the right to have a hearing.[2]
I. Facts[3]
1. As a member of the House of Representatives of the General Court you are a “state employee” for the purposes of the conflict of interest law, G.L. c. 268A.
2. You have served as a state representative, first from the 17th and now the 16th Suffolk District, since you were first elected in 1974. As a state representative, you served first on the Health Care and Transportation and then Ways and Means Committees. You were on the Committee on Post Audit and Oversight from 1979 through 1984.[4] You were vice-chairman from 1979 through 1981, and chairman thereafter.[5] In 1985, you left Post Audit and became chairman of the Joint Housing and Urban Development Committee. In 1990 you left the Joint Housing and Urban Development Committee to become the majority whip. You have served in that position to the present.
3. As a member of the House of Representatives, your duties and responsibilities include participating in the drafting of, conducting hearings on, and ultimate passage of legislation. In addition, however, through your own actions and the actions of your staff, you provide assistance to people who come to your office looking for help regarding various problems. The Commission views this assistance as constituent services. While most such assistance is given to people who live in your district, your office frequently helps people who live outside the district as well.
4. In or about November 1979, Patricia McDermott (then Ford) began doing volunteer work at your State House office as an administrative assistant. Her duties included answering the phone, dealing with mail, and responding to requests for information and/or assistance from citizens who contacted your office. In or about June 1980 McDermott became a so-called “03” employee[6] of the Post-Audit Committee, but her duties remained the same as they were when she was providing volunteer services. In or about November 1981, McDermott became a so-called “02” employee[7] of the Post-Audit Committee. In that capacity she continued to work for you as an administrative assistant performing the same duties as described above. McDermott has continued to serve as your administrative assistant to the present.
5. According to her death certificate, Guzelian was born August 26, 1916 in Camden, New Jersey. Guzelian married Krikor George Romian of Lowell, Massachusetts on July 11, 1943. Nine months later the marriage broke up. The couple were finally divorced on September 24, 1949, when the decree nisi became absolute. Thereafter, Guzelian appears to have lived with her mother at various addresses until her mother’s death in 1974.
On August 25, 1952, Guzelian purchased 47 Payson Road, Belmont. She and her mother lived there until 1969, when Guzelian sold that property. At or about the same time, Guzelian purchased 27 Cleveland Street, Arlington, a two-family house in which she and her mother lived[8] until sometime in or about July 1970, when they purchased (and moved into the downstairs unit of) a two-family house in Cambridge, 118-120 Aberdeen Avenue. Thereafter, Guzelian rented out the two-family house in Arlington, as well as the upstairs unit at 118-120 Aberdeen.
On May 6, 1974, Guzelian’s mother died. Between the time her mother died and Guzelian herself died in 1985, she appears to have frequently appeared in public as a destitute, oddly dressed older woman, who carried some of her possessions in shopping or garbage bags.[9] Many people who knew her have described her as a “bag lady.” During this same time period, Guzelian did a considerable amount of pan-handling, especially near the Lenox Hotel area and in the gay community. She also pan-handled from the taxi cab drivers who operated in the Lenox Hotel area, and became a well-known figure to those drivers, the Lenox Hotel management, and owners or customers of several other business establishments in the area. During much of this same time period, Guzelian continued to own the Arlington and Cambridge properties, and collected the rents from those properties.[10] She also opened and maintained numerous savings accounts, kept savings bonds in a safe deposit box (the bonds she purchased before her mother’s death had a payment on death (POD) designation for her mother; the bonds purchased after her mother’s death had no such feature), and received monthly United States Civil Service and Social Security checks (which she arranged to have directly deposited into one of her accounts). In addition, she regularly attended prayer groups in Quincy and Boston.
On August 16, 1976, Guzelian, using the name Romano, obtained a Boston Housing Authority (BHA) subsidized apartment, No. 6, at 1871 Commonwealth Avenue, Brighton (hereinafter sometimes referred to as the “Brighton apartment”). She was a tenant there until July 9, 1981, as discussed below. While leasing the Brighton apartment for her own use, she continued to rent out the Cleveland Street, Arlington units, and the second floor of 118-120 Aberdeen Street, Cambridge. She did not rent out the first floor unit. That space she used for herself (hereinafter sometimes referred to as the “Cambridge apartment”).
During the time period between her mother’s death in 1974 and her eviction from the Brighton apartment in July 1981, it is unclear where Guzelian was living. She spent some nights at Rosie’s Place and other shelters. New England Deaconess Hospital records indicate that Guzelian was admitted and treated for frostbite between February 11, 1976 and February 14, 1976. The extent to which she lived at either her Brighton or Cambridge apartments is unclear. What is clear, is that the living conditions in both places, to varying extents at various times, were deplorable. In the summer of 1976, the Cambridge Board of Health obtained an order allowing it to enter her Cambridge apartment and clean the premises. The problem at that time was that the apartment contained an enormous number of bags containing trash, clothing, and rotting food which created a considerable odor, as well as fire and health concerns. When the inspectors entered the premises, they also found a certain amount of money and other valuables along with the trash and other materials.[11]
At the request of the Cambridge authorities, Guzelian was seen by a psychiatrist at Cambridge City Hospital.[12] He examined Guzelian and observed that although she was anxious and bizarrely dressed, she had appropriate affect and no formal thought disorder. He concluded that she was suffering from a psychotic grief reaction arising from her mother’s death. He did not believe she was committable.[13] The authorities were advised and were satisfied.
After her Cambridge apartment was cleaned, it is not clear to what extent Guzelian used it thereafter, as she appears to have obtained the Brighton apartment at just about this time. However, she would go to the Cambridge property to collect the rent from the tenant upstairs. She would also keep flowers in the downstairs unit. She also received mail there. It appears that she frequently stopped by the Cambridge apartment in conjunction with visiting her mother’s grave site, which was at Mt. Auburn Cemetery in Cambridge. The Cambridge apartment, however, at least as of July 1981, when it was first visited by McDermott, did not have running water or gas for the stove. Some furniture was still there. Some bags of materials were there as well, but apparently nothing like the situation that existed in 1976.
Nor is it clear to what extent, if at all, Guzelian then lived in her Brighton apartment. As with the Cambridge apartment before it was cleaned, she appears to have used the Brighton apartment to hoard an enormous amount of trash and other materials, including money, much of it in bags piled virtually from the floor to the ceiling as is discussed further below. And, as of July 1981, there was no running water in the Brighton apartment.
Between 1976 and 1981, Guzelian was treated by Dr. Randolph Reinhold, a physician associated with the New England Deaconess Hospital. He basically treated her for circulation problems in her legs throughout these years. A consistent theme in his evaluation notes is that Guzelian was unable to follow through with the course of treatments he had recommended, and that she consistently suffered from very poor personal hygiene.[14]
6. On March 28, 1981, the BHA served Guzelian with a notice to quit her Brighton apartment. On April 24, 1981, the Boston Rent Equity Board (BREB) conducted a hearing (Dkt. E-5334) regarding certain efforts to evict Guzelian from her Brighton apartment. According to the BREB records, the tenant involved was Mary Romano, represented by McDermott (then Ford).[15] The landlord was the BHA. The BHA was presented by Marcia Peters and David Allen represented Scott Management, the business entity which managed the apartments at 1871 Commonwealth Ave. The findings were: “tenant keeps apt. in deplorable and dangerous conditions. See pictures.” The hearing officer’s recommendation was “grant #2 and 3.”[16]
7. On May 26, 1981, the BHA initiated an action in the Boston Housing Court to evict Guzelian (BHA vs. Romano; DKT. 20177). On June 4, 1981 there was an agreement for judgment- “Def’t agrees to sort through her possessions in the apartment with volunteers to be supplied from a local church, during the month of June, so that she will be ready to move by June 30.” Apparently, Guzelian did not satisfy these conditions, because on July 9, 1981, the Housing Court ordered her evicted.
8. When we informally interviewed you, you explained the circumstances surrounding your initial contacts with Guzelian as follows: Guzelian first approached you near a gym where the Mission High basketball team, which you were coaching, was scheduled to practice. You could not and cannot recall for certain when this meeting occurred, although your best recollection was that it occurred sometime during the 1979-1980 or 1980-1981 basketball season. In any event, Guzelian approached you on the street and asked for your help. You gave her a slip of paper on which you wrote McDermott’s name and your State House telephone number. You told Guzelian you were late for practice, you had unsupervised players in the gym, and suggested she call McDermott.
The next time you recalled seeing Guzelian, after seeing her outside the gym, was when you were exiting the Paulist Center from a noon mass. You were walking up Park Street. Guzelian stopped you and reminded you of your first meeting. You and she then walked up to your State House office. At your office, you got her a cup of tea. You recalled kneeling in front of Guzelian to make eye contact and learning that she had some type of medical problem. McDermott then joined you. You talked about a number of matters, including “assistance,” medical problems and a housing problem. You decided to take Guzelian on “as a project,” to try to help her to the extent possible.[17] You essentially dictated a game plan on a yellow pad to McDermott, who implemented it. You could not recall any specifics as to what the plan entailed.
In doing all of this, you indicated you were not dealing with Guzelian as a state representative. You were assisting Guzelian as a private person trying to help another private person with problems. The reason you helped her was because she was someone in need who had asked for help.
Thereafter, you would see Guzelian in your office with varying degrees of frequency. On average, you would see her there approximately once a week. Sometimes you would just say “hi,” other times you would sit and talk at greater length. There were periods of greater frequency of contact than others. One period of more frequent visits was that leading up to her eviction and the discovery of the money. After the money was found in Guzelian’s Brighton apartment and the conservatorship was in place (as described below), you saw her on a less frequent basis.
You knew about the BREB and Housing Court eviction issue involving Guzelian’s Brighton apartment. You were kept informed. You made no contacts with either entity. During this time, you did not socialize with Guzelian outside of the office. She did not visit your home, nor you hers. You could not recall attending any political or social events with her.
9. Under oath, you testified about these initial contacts as follows: Your best recollection was that you first met Guzelian outside the basketball gym in 1980. You also testified that when you met Guzelian for the second time and went to your State House office with her, as you were discussing her problems with her, McDermott gave you a look and otherwise made it clear to you that she was already working on Guzelian’s situation. You had no discussion with McDermott during your meeting with Guzelian concerning what McDermott was doing for Guzelian. Basically, McDermott handled everything.
We asked you about your statement to the effect, “We decided to take her on as a project.” You explained that the reference to “we” reflected a habit of yours of substituting “we” when you really meant “I.” Moreover, you explained that you really did not develop a “game plan” with McDermott. She was already on top of the issue. You meant by that reference to a “game plan” that you were aware that McDermott had identified the problems that needed to be addressed, and was addressing them. Although you could not recall the specifics of any discussion you had with McDermott as to what those actions were, you were certain that you would have had such a discussion. Again, you insisted that you were not providing Guzelian with a constituent service at this point. You noted that Guzelian was not someone living in your district; and helping such people is not part of your duties as a state representative.
You testified that during this time period before the money was found, you spent a significant amount of time with Guzelian in your office talking to her about politics, current events, or family. You shared a cup of tea with her, and maybe a hug as well as the conversation. You formed a bond of friendship. You found her intelligent and engaging. You liked her personality. Although you did not see her frequently outside the office, she did call you on many occasions at home.
10. McDermott testified. She provided the following information. According to McDermott, her first contact with Guzelian was on the telephone. (You had told her that a lady would be calling.) McDermott’s best guess was that this call was approximately in April 1980, because it occurred a few months prior to McDermott becoming an “03”[18] The woman first introduced herself as Mary Romano. This was an introductory call. Guzelian indicated she would call McDermott at a later time with some questions. She did not ask for anything in that first phone conversation Guzelian then began calling her on a more frequent basis with a lot of general questions. They were questions about housing, welfare, elderly lunches. There were a number of phone conversations before McDermott actually met Guzelian. McDermott could not recall the number of phone calls she had with Guzelian before they met.
Finally, McDermott met Guzelian after receiving a telephone call from her in which Guzelian said she had a problem at the BREB. Guzelian asked if McDermott would be able to go there and help her. McDermott cannot recall when this conversation took place vis-a-vis her first telephone conversation with Guzelian. McDermott met Guzelian outside of the Brigham’s next door to the BREB.
McDermott asked Guzelian about her problem. Guzelian was not certain. They went into the BREB together. At the BREB, McDermott ascertained there was no reason for Guzelian to be there that day.
We asked McDermott whether it was fair to characterize her dealings with Guzelian up until that point as part of her job as an administrative assistant in dealing with someone whom you had met. She replied “no.” She too noted that Guzelian did not reside within your district. Therefore, she did not consider any assistance to Guzelian part of her job, to be within her job description, and, in any event, to constitute “constituent services.” We asked McDermott if she ever assisted someone who was not a constituent as part of her job. She replied she did typically by referring them to their own legislators. She indicated that she does not on a regular basis take constituents before government bodies, and though she could recall some instances of doing so with a non-constituent, she did not consider such assistance as being part of her job. McDermott stated she was trying to help Guzelian privately. They had become friendly over the telephone and had already established a “little bit of a relationship.” Guzelian needed some help and Guzelian stated she had no one else to help her. That is why, according to McDermott, she helped her.
McDermott testified that after the BREB meeting, the frequency of her contacts with Guzelian increased both by phone and in person. They developed a real friendship. They exchanged correspondence. McDermott would see Guzelian at your office. She would also see her sometimes at Brigham’s or at the Paulist Center or the Arch Street Church. McDermott did not visit Guzelian’s home until Guzelian was being evicted. She believed she had Guzelian to her house before the eviction.
Sometime beginning in March 1981, McDermott on several occasions accompanied Guzelian to the BREB. McDermott introduced herself as a friend of Guzelian’s at the BREB. She made no reference to her affiliation with you. McDermott testified that Guzelian’s building was being converted into condominiums, there were a number of tenants that had problems. McDermott’s visits to the BREB ended; there was nothing the board could do, and the matter was referred to the Housing Court. McDermott could not recall whether you were aware that she accompanied Guzelian to the BREB. She stated you were aware that she and Guzelian were friends.
The eviction issue moved from the BREB to the Housing Court. McDermott made a number of trips to the Housing Court in May and June, 1981. McDermott dealt with various housing specialists affiliated with the Court. The representative from the management company, David Allen, was also present. McDermott characterized his attitude towards Guzelian as “mean” and “condescending.” All of these meetings took place during normal business hours at the Housing Court. It became obvious that Guzelian was not going to be allowed to stay in the Brighton apartment. McDermott and Guzelian then began talking about alternatives.
McDermott testified that as part of her job, she was attending more and more community meetings during the evenings. She did not need your permission to take actions on Guzelian’s behalf during normal working hours. She stated that she assisted Guzelian as a friend. It had nothing to do with her job. McDermott did not keep any record of the number of hours she put in when she was an 03 consultant, from June 1980 until November 1981. There was no doubt in her mind that she made up for the number of hours she was away assisting Guzelian through her attendance at the community meetings at night. McDermott did not obtain any legal advice for Guzelian regarding the eviction issue. She thought Guzelian may have discussed the matter generally with Michael Muse.[19]
According to McDermott, you and Guzelian had established a friendship by the time the money was found in July 1981. She was welcome in the office and everyone knew this, to the point the Capitol Police would help her up the stairs when they saw her coming in. According to McDermott, Guzelian liked the attention she received from you. “She just absolutely shone in [your] presence...it was like she had a school girl crush on [you].” She testified Guzelian wanted to look her best when she saw you, asked McDermott not to share with you concerns about her personal hygiene, and that the two of you had a “real warm reciprocal rapport.” You discussed your children with Guzelian and you shared your respective feelings about your mothers. All of this lead McDermott to say the two of you were genuine friends.
11. Former Boston Housing Authority Attorney Peters informed us that she recalled a young woman who became involved in the Guzelian eviction matter. That woman introduced herself as being from a state representative’s office. Peters agreed to allow some additional time before the eviction would take place and was pleased to have someone involved to whom Guzelian listened. Peters was surprised to find a state representative taking such an interest in an eviction matter, as it had never before happened in her experience. However, the state representative (you) never contacted her and did not ask for any favors.
12. David Allen informed us that in the six to eight week period before Guzelian was evicted from her Brighton apartment, he put a great deal of pressure on the BHA to do something about the situation.[20] During that same time period, he received numerous calls from your office concerning Guzelian. The calls were from McDermott. In her first conversation, Allen said she identified herself as being from your office, and wanted to know why Guzelian was being evicted. Thereafter, whenever McDermott called, she would always identify herself as being from your office. Allen had no doubt in his mind that McDermott was trying to put some pressure on him to keep Guzelian in the Brighton apartment. Allen stated he never had the impression that, when McDermott called, she was calling for Guzelian as a friend.
Allen did not speak with you. His view, however, was that as a state representative you were trying to prevent the eviction. This was based in part on the calls from McDermott, but also on Guzelian telling Allen that she had someone working for her regarding the eviction, and that person was you (“Representative Fitzgerald”).
13. George Traylor, your senior legislative aide at the time, testified that it was not at all unusual for your office staff to be providing what was, in effect, a constituent service for someone who did not live within your district. He explained that this was something your office staff did all of the time. Basically, your office would help anyone who needed assistance, regardless of whether they were a constituent.
14. Numerous other witnesses working in the Room 146 suite of offices at the time informed the Commission that Guzelian was seen frequently at your office prior to the money being found. These Room 146 employees had varying recollections as to when they first saw Guzelian in your office. Traylor recalled it as being several months before the money was found. Timothy Burke recalled it was at least nine months to a year before the money was found, because he recalled your office receiving a poinsettia from Guzelian in December 1980. The receptionist, Marjorie Murphy, and your secretary, Camille Austin, had no clear recollection.
In any event, from the witnesses we talked to, a picture emerges indicating that, for some not insignificant period of time prior to the discovery that Guzelian had assets, you frequently met with her in your office, sometime merely to say “hi,” other times to sit and have tea and socialize for longer periods of time. You would hug her, kiss her, make her feel comfortable. You directed your office to make her feel welcome as well. You did this notwithstanding the fact that you knew she could not vote for you and notwithstanding her frequently being dirty and foul-smelling. (In fact, on one occasion one of the employees in Room 146 threatened to quit because Guzelian’s presence was so unpleasant.)
15. McDermott testified that once she knew that Guzelian would have to leave the Brighton apartment, she made arrangements for Guzelian to move to the local YWCA. She asked you if she could borrow one of your brothers to help with the move. At your suggestion, she contacted your brother Thomas Fitzgerald who agreed to help. On July 9th or 10th, 1981, McDermott met Guzelian and the two of them went to her Brighton apartment. When they entered the apartment, McDermott was shocked to find it the way it was. It was a four or five room apartment virtually filled from floor to ceiling with various kinds of bags which were filled to varying degrees. There were so many bags that they actually defined narrow pathways through which one walked to get from room to room. There was no running water. McDermott could not recall whether there was electricity. There was a strong odor. McDermott described what ensued as being highly emotional. Guzelian was crying and said, “Thank God you are here. Please help me.” McDermott became very upset to see that Guzelian was living in these conditions and asked “How did this ever happen?” To which Guzelian replied, “I don’t know. I used to do everything with my mother.” Guzelian indicated that there were things in the bags and that they should go through them. Upon opening some of the bags, they discovered rotting food, trash, clothes, and money all mixed together. McDermott testified that feces were found in the bags nearest the bathroom. McDermott testified her reaction to all of this was overwhelmingly sad and that she was particularly saddened to discover that Guzelian had assets to take care of herself, and so there was no need to live in such conditions. McDermott was angered at the landlord, who had apparently shut off Guzelian’s water, as well as at the entire situation.
At some point, Tom Fitzgerald joined Guzelian and McDermott to help clean out the apartment. Later, as that process continued, McDermott went to the landlord, told him it would not be completed that day, she would be back with help, and asked him to secure the premises. He agreed. She also contacted you and informed you of what she found. Given her emotional state, you asked if she and Guzelian were all right. McDermott told you they were coming back to the State House to bring the money to your office. Thereafter, McDermott put a number of bags containing valuables into the trunk of the automobile she had driven, and returned to the State House along with Guzelian.
You stated that at or about that point you contacted John Gould of the Shawmut Bank and asked for advice as to the safekeeping of the money. He advised you to have the money brought to the bank and put in a safe deposit box. (Gould recalls being contacted by McDermott for this purpose. It was his impression that she was making this contact on behalf of a constituent of yours.) In addition, you arranged with the Capitol Police to have someone come to your office and provide security for the money. Officer Charles Dolan performed that service that day. You also contacted the State House press room and reached Bill Harrington, then a Channel 5 news reporter, and, according to Harrington, apprised him of the fact that your office had been helping a woman who appeared to be a “bag lady” who had just been discovered to have bags of money in the apartment from which she was being evicted.
16. Guzelian, McDermott and Tom Fitzgerald returned to the State House. Several bags of money were placed on or near the couch in the reception area of Room 146. Officer Dolan stood guard. Guzelian and McDermott withdrew to an inner office. Harrington interviewed you first off camera and then on camera. According to Harrington, off camera you told him that you and your staff had been trying to help a woman with a housing problem. You told him that when McDermott went to the apartment she found money in bags. You inquired whether this was a good human interest story. He said “yes.” Harrington brought Lisa Capone of the State House News Bureau in to write for the print media. Harrington interviewed you on camera in Capone’s presence.[21] No other reporters interviewed you on this matter. According to Harrington, you were asked who the woman was and you declined to identify her by name or have her filmed because you thought disclosure of her wealth would imperil her safety. You indicated your staff had been working with this woman trying to solve her housing problem and when they went to her apartment because she was being evicted, found it to be a derelict apartment - meaning it had no heat, light and was in disarray. You indicated the money was being placed in a special account and Guzelian’s medical needs would be met. In that interview, you stated, “She was most probably mentally ill.”[22]
Although memories differ on exactly who was present, it appears that thereafter you, McDermott, Guzelian, Traylor, and William Ezekiel, accompanied by Officer Dolan, proceeded to the Shawmut Bank. You and McDermott met briefly with Gould, who referred you to someone in the safe deposit division. You met with that person and secured the valuables. McDermott and Guzelian then proceeded to the YWCA. You agreed to meet McDermott and Guzelian at the Brighton apartment the next day.
Various witnesses have inconsistent memories as to whether the cleaning of the apartment and the opening of the bags continued the next day, or did not resume until Monday. In any event, you, McDermott and others, either that next day or the following Monday, helped complete the process of opening the bags, collecting the valuables, and otherwise cleaning the apartment. At one time or another, the following additional people were present for that purpose: Officer Dolan, Traylor, Muse and John Ryan.[23] In this follow-up clean-up, additional money and numerous bank passbooks were found. These additional valuables were also secured at the Shawmut safety deposit box.[24]
17. We interviewed a Father John Spenser, a Jesuit priest posted to St. Ignatius in Brighton between June 1981 and 1984.[25] Guzelian, known to him as Romano, would come to St. Ignatius periodically. According to Father Spenser, he visited Guzelian at her Brighton apartment on two occasions. The first visit occurred when Guzelian came to him asking for him to help her put a new lock on her door because the landlord was trying to evict her. (This was approximately one week before the Channel 5 broadcast discussed above.) At that time, Father Spenser went to her apartment and discovered it was filled with newspapers from floor to ceiling and wall to wall. He also found bags of money in the apartment. Guzelian told him that she obtained the money by begging for it.
At this point, Father Spenser telephoned your office. He does not recall with whom he spoke. Thereafter, according to Father Spenser, you, a woman and a man came out to Guzelian’s apartment to survey the situation; and the three of you stayed at the apartment for approximately 20 minutes before leaving to get more help.
Father Spenser also recalled that, at the time, you suggested that the matter not be publicly disclosed because disclosing the fact that Guzelian had assets could imperil her safety. Two to three days later, Father Spenser saw pictures of the bags of money in your office in the news. Finally, Father Spenser visited you in your office a week to ten days after the news broadcast. On that occasion you informed him that Guzelian had been relocated in an apartment and the valuables had been secured.
18. At some point during the weekend of July 11-12, 1981, either you or McDermott contacted Muse regarding what had been discovered at Guzelian’s Brighton apartment. (McDermott testified that Muse was contacted at Guzelian’s suggestion because as an attorney be could give advice on what to do.) While it is unclear who spoke to whom,[26] Muse agreed to attend a meeting at your State House office regarding Guzelian. That meeting took place on Monday, July 13, 1981. It was attended by Muse, McDermott and Guzelian. According to Muse, you were around and he thought you came by to say hello.
Muse and McDermott both testified that at this July 13, 1981 meeting, Muse outlined various options that could be used in dealing with Guzelian’s assets, from simply helping her as friends to using a power of attorney, a conservatorship, or a guardianship. His recommendation was a conservatorship based on physical incapacity in that Guzelian had various medical problems, including difficulty with her legs which affected her walking. According to Muse and McDermott, Guzelian fully understood what was being explained to her, and chose the conservatorship option, further choosing McDermott as her conservator and Muse as her attorney.
19. Thereafter, according to Muse and McDermott, they assisted Guzelian in finding all of her assets. They discovered, among other assets, approximately $60,000 in United States Savings Bonds dating from the 1940’s through June 1981, as well as Guzelian’s ownership of the Cambridge and Arlington two-family properties.
20. Muse testified that he arranged for Guzelian to be examined at Belmont Associates in Cambridge (Muse knew a Dr. Stephen Ranere who practiced there.)[27] On July 15, 1981, Guzelian was examined by a Dr. Michael Fuller of Belmont Associates. Guzelian was taken to the doctor’s office by you and McDermott. Dr. Fuller’s examination notes state as follows:
This is a 66 year old “bag lady” brought in by Representative Fitzgerald and social worker, Pat Ford, for the purposes of establishing that Mary is competent to make decisions about who should handle her money affairs, but not competent to handle them herself… Patient apparently walked into Rep. Fitzgerald’s office a couple of months ago and asked for help… When his workers went to help her move from her apartment on Commonwealth Avenue to new housing, they found the apartment full of feces and other excreta, as well as bags of garbage and trash. Upon further investigation, many of the bags had a great deal of money in them, both paper and coin, and part of today’s examination is to establish that Mary is competent to assign Representative Fitzgerald and/or his assistant Patricia Ford to handle her money matters... she has a considerable amount of body odor and hygiene is poor… neurologically she is alert and oriented times three, she knows her presidents; calculations were done poorly… I feel that she is competent to comprehend the nature of her act of assigning Representative Fitzgerald or Pat Ford to manage her money affairs, but I would consider her incapable of handling these affairs on her own, as is clear from her present situation.
At the completion of his examination, Dr. Fuller signed a medical certificate attesting to the fact that he had personally examined “Mary Romana” and she was incapable by reason of physical incapacity of caring for herself and her estate and had sufficient mental ability to comprehend the nature of her act in assenting to the petition.[28]
21. On July 16, 1981, Suffolk County Probate Court Judge Mary Fitzpatrick granted the conservator petition after a hearing at which Guzelian was present. Judge Fitzpatrick wrote the following note on the petition, “Age 67 - living in house with no running water. Dirty. She (one year ago) came to Mrs. Ford[29] at State House.”
22. According to Muse, on July 22, 1981, a Wednesday, Guzelian contacted him and asked to see him that day. A meeting was scheduled in Muse’s law office for that afternoon. Guzelian met him at his office that day at approximately 5:30 p.m., and told him she wanted to make out a will. He interviewed her at length. He asked her whether she was married and about relatives. She replied she was divorced, had a sister Elizabeth and identified no other living relatives. Guzelian stated she had no prior will. According to Muse, she was aware of the extent of her assets and was rational. She was fastidious about accounts, always involved and concerned about getting the best interest rates possible. She wanted to leave her estate equally to McDermott and Fitzgerald. According to Muse, she wanted to do this because “They’re my friends. They’re the closest friends I have. They’re almost like family and there’s no one else to give it to.” She said she wanted to leave only a dollar to her sister Elizabeth because Elizabeth had run out on her and her mother. According to Muse, he asked whether Guzelian wanted to leave anything to any charities. She said “no.” He then listed specific charities and Guzelian again demurred saying, “No they can take care of themselves.” We asked whether Guzelian linked the bequests to what you and McDermott had done for Guzelian as public officials. Muse said “no” and went on to state that Guzelian described you as “the most wonderful person in the world.”
Thereafter, Muse drafted the will on Thursday, July 23, 1981, gave Guzelian a copy that same day and asked her to read it, and then arranged to have her come into his office on Friday, July 24, 1981, to sign the will.
23. Muse further testified that, at the appointed time, Guzelian signed the will prepared by Muse at his 59 Temple Place office.[30] She read the original will and said it was exactly as she wanted it. The will signing was witnessed by Richard Leazott and Helen Chuminski. As of that time, Leazott and Chuminski were employees of the SEIU[31], but had and have no connections to Fitzgerald or McDermott. Both Leazott and Chuminski testified that they witnessed Guzelian sign the will. Neither noticed anything unusual about Guzelian’s behavior on that occasion.[32] Forensic tests done by the Secret Service indicate that the signature on the will is genuine and that the ink used to make that signature was commercially available as of 1981.
24. From August 5, 1981 through August 20, 1981, Guzelian was an in-patient at the Sancta Maria Hospital. The admission dealt primarily with the problems she was having with her legs. Her attending physician was Dr. Fuller. In his discharge note, he emphasized the importance of her having a bone scan to determine whether she had a tumor. He observed that she persistently refused a further work-up. He also recommended, “Evaluation by psychiatrist or psychologist.”[33] Both his notes and his testimony make clear that these recommendations were discussed with McDermott. According to both McDermott and you, you both visited Guzelian in the hospital during this stay.[34]
25. Beginning on or about August 14, 1981, Guzelian began a lease of an apartment at the Longwood Towers, 20 Chapel Street, Brookline, MA. She appears to have physically moved in sometime shortly after her release from the Sancta Maria Hospital.
26. On September 25, 1981, McDermott, as conservator, filed an inventory with the Probate Court indicating that Guzelian’s personal estate was appraised at $103,388, and the real estate, consisting of the Cambridge and Arlington properties was valued at $197,500.
27. On October 30, 1981, Dr. Ranere[35] signed a medical certificate indicating that Guzelian had sufficient mental ability to comprehend the nature of her act in assenting to a petition. It is not clear for what purpose the certificate was signed.[36]
28. Between November 9, 1981 and November 10, 1981, Guzelian was a patient at the Sancta Maria Hospital where she underwent a bone scan and was treated for phlebitis.[37]
29. On November 13, 1981, McDermott, as conservator, petitioned the Probate Court for authority to sell Guzelian’s Arlington property for $88,500. On November 16, 1981, Dr. Ranere signed a medical certificate stating Guzelian had sufficient mental ability to comprehend the nature of her act in assenting to the petition. The petition was granted on November 20, 1981. On December 18, 1981, McDermott, as Guzelian’s conservator, and with her consent, sold the property for $88,500. Muse apparently acted as the broker on the sale, earning a commission of $5,100.
30. On December 29, 1981, McDermott petitioned the Probate Court for partial conservator fees in the amount of $6,000 for the period July 21, 1981 through December 21, 1981. Guzelian assented. In an accompanying affidavit, McDermott stated she had expended over 750 hours since appointment, and she spent an average of around 20 hours per week as Guzelian’s conservator.
31. Between December 23, 1982 and January 24, 1983, Guzelian was an in-patient at the Sancta Maria Hospital as a result of being struck by a taxi cab near the Lenox Hotel. Guzelian was also evaluated for a change in personality because, according to the hospital records, “her friends [were] concerned about some possible changes in her mental status.” A January 4, 1983 nurse’s note states, “constantly yells out - bangs on rails, …obnoxious and crazy and dirty.” A January 23, 1983 neurological consultation report by Dr. A. Fullerton describes Guzelian’s mental status as follows: “Actually seems remarkably good…” Dr. Ranere’s discharge report concerning this hospitalization states, “Mrs. Guzelian is a 67 year old white female admitted to the hospital for treatment of phlebitis and question of altered mental status. Her friends also noted her to have a change in personality ... she was seen in consultation by Dr. Fullerton who felt that Mrs. Guzelian’s mental status was a little off.” It also appears clear that by this point she has been diagnosed as having Paget’s Disease.[38]
32. During the next several months of 1983, Guzelian’s condition deteriorated. She had both urinary and bowel incontinence problems. She had urinary and bowel “accidents” at the Longwood Towers in the public restrooms and common areas. Longwood Towers’ management complained to McDermott about the situation. Guzelian also began to see certain people, especially management at Longwood Towers, as much more threatening. McDermott discussed this with Dr. Ranere in the fall of 1983. He, and an endocrinologist who was apparently treating Guzelian for the Paget’s Disease, recommended that Guzelian be evaluated by a psychiatrist, and referred Guzelian to a local psychiatrist.[39]
33. On November 5, 1983, McDermott took Guzelian to see the psychiatrist. He examined Guzelian for approximately an hour. Based on the medical history he obtained and his examination, the psychiatrist diagnosed Guzelian as having chronic paranoid schizophrenia. (He observed in his interview of Guzelian that she was cheerful and cooperative, with generally appropriate affect, not clinically depressed, and oriented times three.) He concluded that she was not committable at that time, and he would work closely with McDermott. The psychiatrist scheduled Guzelian for another appointment for November 8, 1983.[40]
Thereafter, Guzelian failed to appear for her November 8, 1983 appointment with the psychiatrist. On November 14, 1983, he met with McDermott to discuss the situation. On November 18, 1983, McDermott called the psychiatrist stating that Guzelian had defecated in the lobby of Longwood Towers, was refusing to cooperate with suggestions from McDermott, and that Longwood Towers was in the process of obtaining an injunction against Guzelian.
As a result of this phone call, the psychiatrist, on that same day, completed a so-called “pink paper”[41] recommending Guzelian be committed to the Massachusetts Mental Health Center (MMHC). He may have brought a copy of the “pink paper” to the local police department. He also coordinated with a doctor (now deceased) from MMHC. (We have not been able to locate a copy of this “pink paper.”)
Nothing happened regarding this “pink paper” until November 26, 1983. At that time, two police officers took Guzelian to MMHC, accompanied by McDermott. Muse was also present at MMHC at that time. Guzelian saw an MMHC psychiatrist.[42] He examined her, and then apparently declined to admit her.
We contacted the MMHC psychiatrist. He has no current recollection of the events in question. He did observe that at that time no one would have been committed to MMHC unless they were in imminent danger to themselves or others. We have also contacted the MMHC. They cannot find any records regarding this or any other visit by Guzelian to the MMHC.
34. On February 23, 1984, McDermott, as conservator, petitioned the Probate Court to be allowed to purchase a condominium at 9 Corey Road, Brookline for Guzelian. On that same date, Dr. Ranere signed a medical certificate stating that Guzelian had sufficient mental capacity to assent to that petition. (There is no record that Dr. Ranere examined Guzelian at or about that time.[43] In addition, Dr. Ranere was not aware of the results of Guzelian’s visit to the psychiatrist or the MMHC. Neither Guzelian, McDermott nor the psychiatrist informed Dr. Ranere of the diagnosis or that she had been “pink slipped.” Dr. Ranere stated that he would not have signed the certificate if he had known about the “pink paper.” Dr. Ranere expressed surprise upon being advised of the chronic paranoid schizophrenia diagnosis and that Guzelian had been “pink slipped.”) The Probate Court approved the conservator’s petition that same day.
35. On or about June 11, 1985, Guzelian was struck by a taxi near the Lenox Hotel. She was taken to the Massachusetts General Hospital. She made sufficient progress at the hospital that a transfer to the Spaulding Rehabilitation Hospital was contemplated, but on June 25, 1985 her condition suddenly worsened and she died at 5:09 p.m. Cause of death on the death certificate is listed as pulmonary thrombosis.
36. On July 8, 1985, Muse, as executor, filed Guzelian’s will with the Norfolk Probate Court (Docket 85 P 1932 E 1). On July 30, 1985, Muse apparently sent you and McDermott notice that you were parties in interest in the will.[44] Muse, McDermott and you each stated that Muse did not inform you or McDermott that Guzelian had made you her co-beneficiaries, or indeed, had even drafted a will, until after this notice was mailed.[45] Once the notice had been mailed, McDermott and you contacted Muse, and be informed each of you of your status as beneficiaries. On October 25, 1985, the Guzelian will was approved by the Probate Court.
37. You have indicated that you never read the will and were not aware that it was signed in July 1981 until you learned of that fact through the Boston Globe in 1991. Muse testified, however, that he gave you the will shortly after you were notified that you were an heir.
38. On November 14, 1985, a column written by Peter Gelzinis appeared in the Herald characterizing Guzelian as a “bag lady,” and describing bow she had been befriended by you. The article discloses that Guzelian had an estate in excess of $300,000 and that you and McDermott are listed as her sole beneficiaries. The article generally applauds both what McDermott and you did for Guzelian, and the fact that you were being, in effect, rewarded for your efforts.
39. According to probate conservatorship records, McDermott received a total of $27,000 in fees for acting as conservator; and Muse received a total of $27,000[46]for legal services provided to the conservator.
40. Pursuant to Guzelian’s will, it would appear you and McDermott received a series of distributions beginning in 1985 and ending in late October 1988 totaling $393,784.98.[47] You received $200,142.49 of that amount, and McDermott received $193,642.49.[48]
41. In your deposition, we asked you to describe your contacts with Guzelian between the time McDermott was appointed conservator (July 16, 1981) and Guzelian’s death (June 25, 1985). You provided the following information: Guzelian still visited you at your office, but less frequently after the fall of 1981. She was still in frequent telephone contact with you. You attended birthday parties for Guzelian which took place every year, but you were not certain whether you attended each year. Guzelian picked the restaurant of her choice on her birthday. You recalled going to Jimmy’s Harborside one year. You did not recall who paid for these dinners. There were also unscheduled meetings with Guzelian when you would bump into her on occasion on Tremont Street. You would then have a sandwich or soft drink. You believe that Guzelian also visited your apartment on Hillside Street in Mission Hill. You did not recall ever visiting her at her Longwood Towers apartment, although you recalled giving her rides there on occasion and dropping her off at the lobby. When she was at your office at the end of the day, you would either give her a ride home, or a ride over to Quincy Market. You also gave her rides home to her 9 Corey Road, Brookline condominium, and visited her there on one or two occasions. Guzelian also attended and saw you at certain events sponsored by your office in conjunction with Thanksgiving or St. Patrick’s Day. You did not purchase any gifts for Guzelian, but recalled that McDermott purchased greeting cards and gifts for you to give or send to Guzelian. You did not receive any gifts from Guzelian, only greeting cards. You visited Guzelian in the hospital after her 1982 and 1985 accidents. You also attended Guzelian’s wake and funeral, along with members of your family.[49]
42. We asked McDermott to describe her contacts with Guzelian between July 15, 1981 and June 25, 1985. She provided the following information: She had almost daily contact with Guzelian. She telephoned Guzelian every morning and had general social conversations, and Guzelian contacted her almost every afternoon at the State House, or else Guzelian visited your State House office. During those conversations, they planned evening activities and McDermott advised Guzelian whether she would be stopping by Guzelian’s apartment that evening. When Guzelian visited the office, frequently near the end of the day, either you or McDermott gave her a ride from the State House to wherever she wanted to go.
Saturday was cleaning day at Guzelian’s Longwood Towers apartment and Brookline condominium. McDermott went there virtually every Saturday. Around the holidays, Guzelian visited McDermott at McDermott’s house. At various times during the year, McDermott and Guzelian shopped together. When McDermott was on vacation, McDermott’s mother took over the duties of daily contacting Guzelian. In addition, McDermott’s two brothers on occasion accompanied McDermott to Guzelian’s apartment. Guzelian liked McDermott’s brothers. In essence, according to McDermott, all of the normal routine activities that a family is involved in were done with respect to Guzelian. Guzelian was considered part of the family.
McDermott and Guzelian planned social events they would attend regularly. Once a month they had lunch or dinner at a predesignated restaurant. Birthdays were celebrated every year. McDermott and others, often including you and Muse, would take Guzelian to a nice restaurant on her birthday. McDermott or someone else in the group other than Guzelian would pay for the meal.[50] McDermott decorated Guzelian’s apartment or condominium with Christmas decorations. They exchanged presents at Christmas. They exchanged cards.[51] McDermott’s mother also always had a present for Guzelian. Every Mother’s Day, McDermott picked up Guzelian and they would buy a plant and visit the Mount Auburn Cemetery where Guzelian’s mother is buried.
McDermott had no knowledge that Guzelian ever spent the night sleeping away from her apartment or condominium. She had no knowledge of her ever sleeping at Rosie’s Place.[52] Guzelian called McDermott at night, sometimes very late at night, for rides home. This occurred predominantly whenever Guzelian failed to make the last MBTA trolley out of Arlington Station, at 1:00 a.m., or whenever the escalator was not working at Arlington Station and Guzelian could not climb down the stairs.
Guzelian often referred to McDermott as her daughter and introduced her as such when meeting people. She also referred to McDermott’s brother Douglas as her son.[53]
After Guzelian’s accident on June 11, 1985, McDermott visited Guzelian at the hospital daily.
43. You, McDermott, and Muse each testified that you had no knowledge of anyone putting any pressure on Guzelian to make you and McDermott beneficiaries of her will. You each testified that you had no knowledge of anyone unduly influencing Guzelian to make you and McDermott beneficiaries of her will. We have obtained no direct evidence indicating you put pressure on Guzelian or otherwise improperly influenced her in regard to her making you a beneficiary of her will.
44. We have interviewed approximately 75 witnesses, including numerous people who knew Guzelian well such as members of her various prayer groups, people who helped her at shelters, medical people, several of her tenants, and people who simply met her on the street and came to know her well. No one can offer any direct evidence that you directly or indirectly pressured Guzelian to name you as a beneficiary of her will.
II. Discussion
As a state representative you are a state employee for the purposes of the conflict of interest law, G.L. c. 268A. As noted in the beginning of this letter, the Commission’s inquiry focused on allegations that you violated G.L. c. 268A, §§3, 23(b)(2) and (b)(3) by your official dealings with Guzelian and your acceptance of a bequest from her estate. The basic §3 issue is whether by accepting the bequest you accepted an unlawful gratuity. The §23 issues are essentially two: First, under §23(b)(2) did you use or attempt to use your official position to pressure or otherwise improperly influence Guzelian into naming you a beneficiary? Second, under §23(b)(3) did your conduct create an appearance of impropriety, namely that Guzelian improperly influenced you or unduly enjoyed your favor in the performance of your official duties? We start with the §3 issue.
A. Section 3
Section 3(b) of G.L. c. 268A, in relevant part, prohibits a state employee, otherwise than as provided by law for the proper discharge of official duties, from soliciting or accepting anything of substantial value from anyone for or because of any official act or act within his official responsibility performed or to be performed by him.
As the Commission stated In the Matter of George Michael, 1981 SEC 59, 68:
A public employee need not be impelled to wrongdoing as a result of receiving a gift or gratuity of substantial value, in order for a violation of §3 to occur. Rather, the gift may simply be a token of gratitude for a well-done job or an attempt to foster goodwill. All that is required to bring §3 into play is a nexus between the motivation for the gift and the employee’s public duties. If this connection exists, the gift is prohibited. To allow otherwise would subject public employees to a host of temptations which would undermine the impartial performance of their duties and permit multiple remuneration for doing what employees are already obliged to do - a good job.
For §3 purposes, it is unnecessary to prove that the gratuities given were generated by some specific identifiable act performed or to be performed. It is sufficient that the gratuities were given to the official “in the course of his everyday duties for or because of official acts performed or to be performed by him and where he was in a position to use his authority in a manner which could affect the gift giver.” United States v. Standefer, 452 F. Supp. 1178, 1183 (W.D. Pa. 1978), aff’d on other grounds, 447 U.S. 10 (1980), citing United States v. Niederberger, 580 F.2d 63 (3rd Cit. 1978). See also United States v. Evans, 572 F.2d 455 (5th Cir. 1978). AB the Commission explained in Advisory No. 8:[54]
In fact, even in the absence of any specifically identifiable matter that was, is or soon will be pending before the official, §3 may apply. Thus, where there is no prior social or business relationship between the giver and the recipient, and the recipient is a public official who is in a position to use [his] authority in a manner which could affect the giver, an inference can be drawn that the giver was seeking the goodwill of the official because of a perception by the giver that public official’s influence could benefit the giver. In such a case, the gratuity is given for as yet unidentifiable “acts to be performed.”
In 1990 the Commission made clear that §3 would apply even where there is evidence of a private social relationship between the donor and donee unless the private relationship is the motive for the gift.[55]
In determining that reasonable cause exists to believe you violated §3(b) by accepting a bequest from Guzelian, the Commission first considered whether bequests are covered by §3[56] and concluded that they are. A bequest is clearly an item of substantial value.[57] If a state employee accepts such an item of substantial value for or because of official acts, or acts within his official responsibility, performed or to be performed, then the literal language of §3 is satisfied.
There are good policy reasons supporting this result. The conflict of interest law is a remedial statute. Everett Town Taxi Inc. v Aldermen of Everett, 366 Mass. 534, 536 (1974). It should be read broadly so as to effect its remedial purposes. See Levy v. Board of Reg. & Discipline in Medicine, 378 Mass. 519, 525 (1979). If a public official knows that he has been named a beneficiary in the will of someone with whom he has had official dealings, that person’s official treatment by that public official may be affected by the expectation of an inheritance. Even where a public official was not aware of the will while he was dealing officially with the citizen, the suspicion will always linger that he was so aware, no matter how much the matter is investigated. In addition, if a public official can inherit from a person with whom he has had official dealings, concerns will arise as to whether the public official may have in some way exerted undue influence on that person to persuade her to leave a significant bequest to him. In short, in the Commission’s view, confidence in government is undermined if public officials are allowed to inherit from people with whom they have had official dealings.[58]
You raise several objections both to the conclusion that §3 applies to bequests, and to the foregoing public policy discussion. First, you note that in G.L. c. 268B, §1(g), the definition of “gift” excludes “anything of value received by inheritance.” You argue that if, in 1978, when G.L. c. 268B was adopted, the Legislature determined that bequests need not be reported in SFIs, it should follow that there is an inference that bequests are not covered by G.L. c. 268A, §3.
We do not find that argument persuasive. While it is not irrelevant that the Legislature chose to exclude bequests from gifts for SFI purposes,[59] as the OGE opinion discussed above indicates, such an exclusion is not dispositive for substantive conflict of interest law purposes. The 268B reporting requirements serve purposes beyond just identifying possible 268A violations. (And not all relationships or events which would constitute c. 268A violations are required to be reported in SFIs.) It seems reasonable to conclude that in the absence of clear legislative language to the contrary, the exclusion of bequests from the term “gift” in 268B should have little impact on the question of whether bequests are to be included within the phrase “item of substantial value” as used in G.L. c. 268A, §3.
You also note that the House of Representatives, in adopting in 1977 a Code of Ethics for its members, officers, and employees, enacted a §12 which provided,
No member of the House, officer or employee shall knowingly accept gifts ... having an aggregate monetary equivalent value in excess of $35 in a calendar year from any person or entity having a direct interest in legislation before the General Court. Nor shall any member of the House, officer or employee accept any gift of cash from the aforementioned persons or entities. Gifts from relatives, bequests, awards of a nominal nature presented in recognition of public service, and commercially reasonable loans made in the ordinary course of business, are exempted from the aforementioned provisions.
Journal of the House of Representatives, 11/10177, at 2264-2265. In 1979, the House amended §12 to incorporate the definition of gifts as appearing in 268B, §1. The amended version has continued to appear in the House Rules to the present.
You argue that if the members of the House believed that it was acceptable for a member or employee to accept a bequest even from someone with a direct interest in legislation that was pending, then certainly they should be able to accept a bequest from a constituent with no such interest. The House’s Code of Conduct is not, however, determinative of how G.L. c. 268A, §3 should be construed. Again, as with the exemption of bequests from G.L. c. 268B, §1, in the absence of clear legislative language as to how G.L. c. 268A, §3 should be construed, the Commission will construe it broadly so as to achieve its remedial purpose.
You also argue that the purposes of the statute are not served if bequests are covered because at the time when the bequest becomes of value (that is, when it is received[60]), the decedent and the government official can no longer have a public relationship. Therefore, bequests should be distinguished because the decedent can no longer hope to gain anything by creating goodwill with the public official. Furthermore, if the public official did not know he was a named beneficiary while dealing with the testator, how could he be influenced in any way in the performance of his official duties? You argue that this fundamental difference between bequests and other gifts is the main underlying rationale for the House Rules cited above and the different treatment of bequests in the statute which created the Commission. St. 1978, c. 612.
While this argument is not without merit, the literal language of the statute makes no distinction between a person who gives an unlawful gratuity for past acts, with no expectation of any future dealings with the donee, and a person who gives a gratuity with an expectation of future acts to be performed. Both are explicitly covered. There are public policy implications in both situations. If a public official thought he might receive a gratuity for an official act even though he would know that he would never deal with that person again, that could influence the nature of his conduct in relation to the potential donor. If he knew he had been named a beneficiary by someone with whom he was having official dealings, that could very much influence his official treatment of the testator, just as it might influence a family member’s attitude towards a rich relative once the family member was named in the relative’s will. And, as already discussed, nothing should ultimately turn on whether it can be proved that the public official knew he was a beneficiary or that bequests are subject to change. The statute is prophylactic. It is intended to protect against the potential for conflict. See Quinn v. State Ethics Commission, 401 Mass. 210, 214 (1987).[61]There is a potential for conflict where a person who is having official dealings with a state employee makes that person a beneficiary of his will. The best way to prevent such conflicts from arising is to have a rule, as do judges, that requires the public official not to accept the bequest.
Applying the evidence to the elements of §3,[62] it is clear that you were a state employee at all relevant times. The distributions in dollar amounts were certainly items of substantial value. We are aware of no law or regulation which indicates that accepting such bequests is “otherwise provided for by law.”
The next question is whether there is reasonable cause to believe that when you accepted these distributions you understood the reason Guzelian made her bequest to you was “for or because of” official acts or acts within your official responsibility. Your understanding should be based on what Guzelian’s motive was on the day she signed the will, July 24, 1981, and not on the day she died.[63]
You performed acts within your official responsibility[64] affecting Guzelian. While it is unclear in what capacity Guzelian first approached you, you reacted as a state representative. She had no pre-existing social or business relationship with you. You directed her to your administrative assistant. You met with her in your office on repeated occasions, and as of the date the will was executed, July 24, 1981, rarely outside of your office. You received most of your telephone calls from her at your office, although you testified she would call you at your home as well. You approved your administrative assistant McDermott in intervening in her eviction issue, at that time an issue of paramount importance to Guzelian. You appear to have directed your office to basically help Guzelian with her problems.[65]
This conclusion is bolstered by the fact that McDermott appears to have introduced herself as your administrative assistant in dealing with Peters and with Allen, the Brighton apartment manager. And Guzelian, in telling Allen that a state representative was helping her regarding the eviction, appears to have been relying on your official influence. In addition, when the money was found at her Brighton apartment, you arranged to have Capitol Police provide security, and you appear to have directed another staff assistant, Traylor, albeit along with your brother, to go to the apartment to help with the cleaning. You contacted a banker (with whom you had worked as a state representative on the Tregor bill) to help with the safeguarding of the funds. You thereafter allowed Muse, McDermott and Guzelian to meet in your State House office to decide how to help Guzelian reorganize her affairs, and you stopped by at that meeting. All of these activities appear to be acts performed by a state representative as a state representative on behalf of a citizen.
You argue that these acts were not acts within your official responsibility, but rather private acts provided to a private friend; indeed, that even from the very beginning of your relationship with Guzelian, your acts were private, not acts within your official responsibility. This argument is based on Guzelian’s not having an interest in any matters that came before the legislature and her not living within the district. The Commission rejects this contention. Your office helps people who live outside your district.[66]
You argue that as a matter of law, even if what you did for Guzelian could be properly described as constituent services, broadly defined, those are not acts within your “official responsibilities” as defined in 268A, §1(i) (see fn. 57 above). The argument is that such acts do not involve the directing of agency action. We disagree. You, in effect, told McDermott and others to help Guzelian. That is directing agency action.[67]
The final issue is motive, i.e., whether you understood that Guzelian named you in her will for or because of acts within your official responsibility or because of friendship. The evidence, in our view, indicates that the motive was your official rather than your personal relationship. Your official dealings with the eviction issue and the events surrounding it were so close in time to Guzelian’s execution of the will and so important in her life that the Commission has concluded that her motive was to reward you for those acts.[68]
Even if friendship were a motivating factor, for all the reasons just discussed, it falls short of being the motive. Therefore, under the applicable test, we would still not accept your contention that friendship was the motive. Consequently, the “for or because of” element has been met here.
In short, each of the §3 elements, including the “for or because of” element, has been satisfied here. Therefore, the Commission found reasonable cause to believe that you violated §3(b).
B. Section 23
Section 23(b)(2) prohibits a state employee from knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated people.
In a series of disposition agreements the Commission had made clear that a public official may not put pressure on someone with whom he has an official relationship for his or anyone else’s private personal gain.[69] If you and/or McDermott pressured Guzelian to name you and McDermott beneficiaries of her will, that would be an unwarranted privilege of substantial value violating §23(b)(2). Indeed, while the above-referenced disposition agreements involve overt pressure, if you took advantage of Guzelian through your contacts with her as a public official by somehow exploiting the trust or reliance she had developed, that too could be an unwarranted privilege. See EC.COI-83-156.
The evidence the Commission has gathered from its investigation is not sufficient to warrant a finding of reasonable cause to believe that you put pressure on Guzelian or improperly influenced her to name you as a beneficiary, thereby violating §23(b)(2). Consequently, the Commission did not vote to find reasonable cause to believe you violated §23(b)(2). (In this regard, the Commission was mindful of the fact that, prior to the discovery of Guzelian’s assets, the evidence indicates that you treated her with respect and kindness.)
Finally, Section 23(b)(3) prohibits a state employee from knowingly, or with reason to know, acting in a manner which would cause a reasonable person knowing all the relevant circumstances to conclude that anyone can unduly enjoy his favor or improperly influence him.[70] The Commission has made clear in a series of disposition agreements that §23(b)(3) is concerned with the appearance of impropriety, and that a public official creates the appearance of impropriety by entering into a private financial relationship with an individual with whom the public official has or has had official dealings.[71]
The Commission found reasonable cause to believe you violated §23(b)(3) on these facts Under §23(b)(3) there is clearly a significant appearance of impropriety here. By your accepting the bequest under all of these circumstances, an impression arises that Guzelian either unduly enjoyed your favor or improperly influenced you. This appearance problem is exacerbated by the duration of your involvement with Ms. Guzelian prior to her will being executed, the proximity in time between the discovery of Ms. Guzelian’s wealth and the execution of the will, and your relationship to the will’s draftsman, Muse.
You have argued that this supplemental standard of conduct does not apply to your conduct with respect to the Guzelian bequest because the relevant facts known to you were disclosed in a manner that was public in nature starting in 1981 and continuing throughout the eighties. You point to your interview with Harrington and Capone in 1981 (which dealt with the discovery of Guzelian’s valuables), to the 1985 Gelzinis column (which disclosed your beneficial interest in Guzelian’s estate) and to the Probate Court records of the estate (which indicate the identities of the legatees, the draftsman and executor, and the date of the will). You suggest that these disclosures should preclude a reasonable person from concluding you violated §23(b)(3). You have also argued that in a 1986 amendment to §23, the Legislature eliminated the subjective “appearance of impropriety” standard for the more objective “reasonable person” standard.
In response, the Commission notes that at least some of the facts on which a reasonable person would rely in determining whether there was a §23(b)(3) violation here were not publicly disclosed. Thus, the relatively short duration of your involvement with Guzelian prior to her signing her will, the short time period between the discovery of the money and her signing the will and your relationship to the will’s draftsman, were not disclosed in the media, in court papers, or in any disclosure to the Commission. (As an elected official, any §23(b)(3) disclosure by you would be made to the Commission.)
As to your contention that §23(b)(3) no longer applies to appearances of impropriety, the Commission rejected that argument in Keverian, 1990 SEC 460.
Your contention that you did not know when the will was drafted until this past year cannot be corroborated and, in any event, the statute applies not just where one acts knowingly, but where one “has reason to know.” You certainly could have ascertained the facts at the time you accepted the bequest.
Finally, you argue that you had no knowledge of the will while Guzelian was alive, so your official treatment of her could not have been affected by an expectation of an inheritance. Under all of these circumstances, however, and without information from Guzelian, we cannot satisfy ourselves that that is true. From a policy point of view the only way to ensure that your actions were not influenced by the hope or expectation of inheritance was for you to disavow the inheritance.[72] That would have sent a clear message that all of your conduct with Guzelian was above-board and well-intentioned. Absent such action, an appearance of impropriety inevitably arises.
III. Disposition
Based on its review of this matter, the Commission has determined that the sending of this letter should be sufficient to insure your understanding of, and your future compliance with, the conflict of interest law. The Commission chose to resolve this matter with a public enforcement letter for the following reasons: (a) this matter involved events which occurred, for the most part, a decade ago, and many of the activities discussed in this letter are beyond the Commission’s statute of limitations and outside of this Commission’s jurisdiction; (b) there is no legal precedent until now which would put legislators on notice that they may not accept bequests from constituents or others with whom they have had official dealings; and (c) the Commission uncovered no direct evidence that you directly or indirectly coerced or induced Guzelian into making you a beneficiary of her will.
This Ethics Commission matter is now closed.[73]