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Letter Ruling

Letter Ruling Public Education Letter 92-1: Kevin Fitzgerald

Date: 12/09/1991
Organization: State Ethics Commission
Referenced Sources: G.L. c. 268A, the Conflict of Interest Law

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] 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]

[1] Pursuant to §5(D) of its Enforcement Procedures, in lieu of an adjudicatory proceeding, the Commission may resolve a matter through the issuance of a public enforcement letter which assesses no civil penalties but which publicly reviews the alleged violations of law for preventive and educational purposes.  A public enforcement letter may be authorized where the facts and alleged violations warrant a public resolution without the formality and expense of an adjudicatory proceeding or an admission that a subject has violated G.L. c. 268A or G.L. c. 268B.  A public enforcement letter may be issued only with the consent of the subject.

[2] You have raised concerns about the confidentiality of Guzelian’s medical records and her communications with doctors.  Your counsel has suggested these matters are confidential as a matter of law and that the record must reflect that by agreeing to the public release of this letter you are not participating in the dissemination of privileged material.

[3] The following statement of facts is the result of the Commission’s preliminary inquiry into the above-stated allegations.  The inquiry includes taking sworn testimony of many witnesses, unsworn personal interviews of many other witnesses, and the assembly and review of thousands of documents.

[4] The Committee on Post Audit and Oversight, unlike other Committees, does not hold hearings on bills.  It conducts investigations and issues reports.

[5] Beginning in January 1979, your State House office was located in the Post Audit Committee suite of offices accessed through Room 146.  That suite of offices had a common waiting room with a receptionist.  There was a couch in the waiting area on which visitors could sit.  Between January 1979 through the end of 1981, you shared space with your staff members and clerical help.  Beginning in January 1982, when you became Post Audit Committee chairman, your office was still located among the suite of offices in Room 146, but your obtained your own separate office.

[6] An “03 employee” has a contract with the state to be paid a certain amount per hour for a certain number of hours, but does not receive any other benefits beyond the hourly compensation.

[7] An “02” employee is a “regular” state employee, hired for an open-ended period of time and whose compensation includes benefits.

[8] Guzelian's neighbors at 23 Cleveland Street, Arlington, Sarah Sahagin and her daughter Diane Hansel, stated that Guzelian and her mother slept in the dining room among piles of boxes, with a blanket thrown over newspapers serving as a bed.

[9] You are quoted in a November 14, 1985 Boston Herald article as stating, “One day Mary followed me up the hill from Park Street and simply appeared in my office. She looked bad. She smelled bad. And it was pretty obvious that she had not taken care of herself in years.”

[10] In July 1981, Guzelian and a tenant at 118 Aberdeen agreed to a small increase in the monthly rent.

[11] Cambridge City Solicitor Russell Higley stated that there was a few thousand dollars in cash and approximately $40,000 in bank passbooks. The money and passbooks were held by the city until the solicitor's office was satisfied that it was appropriate to return them to Guzelian, i.e., once she had retained an attorney to help her with her financial affairs and perhaps serve as a conservator.  Higley could not recall who that attorney was.  However, according to Gloria Sannella, sometime prior to April 22, 1977, Guzelian came to Sannella's father, Attorney Vincent Mattola, now deceased, with a Board of Health problem.  She had photographs with her of an apartment with unsanitary living conditions.  (Higley showed us file photos of the Cambridge apartment depicting similar conditions.)  Mattola saw Guzelian several times regarding her apartment issue.  On or about April 22, 1977, Guzelian paid for and received a copy of a will drafted by Mattola.  Sannella's recollection is that Guzelian named family members as beneficiaries in that will.  (Sannella was a legal secretary for her father, and recalled typing and witnessing the will.)  We have found no such will.

[12] Consistent with a protective order obtained by another psychiatrist in this matter, the Commission will not disclose the identity of this psychiatrist or publish the contents of his notes or direct testimony. See infra.

[13] We deposed this psychiatrist pursuant to a court order.  He had no memory, independent of his notes, of his dealings with Guzelian.  In reviewing his notes, he observed that Guzelian was not a danger to herself, to others or unable to care for herself in the community.  Consequently, he did not recommend her commitment.  When asked whether Guzelian had testamentary capacity, he stated he could not determine from his notes whether Guzelian possessed testamentary capacity.  He currently is of the view that Guzelian could have developed a trusting and loving relationship with another person, if that person provided a mother substitute.

[14] In various notes Dr. Reinhold states the following:
7/8/80: “comes in today for the first visit in 3 months.  Again, in a dilapidated state of repair. Her mouth is filled with ulcers due to poor fitting dentures which she continues to wear. ... Her feet are again swollen and mildly cellulitis, in keeping with the fact it does not appear that she has had any personal hygiene for weeks.”
10/8/80: “It is virtually impossible to make her better when her life situation is so difficult. For example, she spent all night sitting up in a chair which is just about the most difficult thing for her legs.”
11/7/81: “She was finally able to take a bath recently which is a notable achievement.... Certainly her state of hygiene isn't helping.”
6/19/81: “She has not taken a bath in approximately four months.”

We deposed Dr. Reinhold.  He testified that he believes that Guzelian had some kind of underlying mental illness, although he noted that he is not a trained psychiatrist.  He stated she was competent enough to get around on the street with no apparent source of income and survive.  She did not, however, appear to be taking care of herself.  He had no way of judging her rationality.  At times, she was rational enough to seek and demand medical care; on the other hand, she did not follow through on his recommendations for treatment.  He had no professional opinion as to whether she should have been committed.
He described Guzelian as a pleasant, kind person, who was not suspicious and who could not be manipulated.  He made no contemporaneous findings of testamentary capacity, but he believed that she would have been capable of understanding a will and that she was leaving her money to certain beneficiaries named in the will.  She would be capable of identifying relatives that she may have had and naming them in a will.  He treated her through June 1981.

[15] Most BREB and BHA records for this time period have been destroyed.  However, based on extant BHA computer printouts, it appears that Guzelian, using the name Romano, had a tenancy in her Brighton apartment from 8/16/76 to 5/26/81, when she was evicted “for cause.”  We cannot explain why the BHA computer record cites 5/26/81 as the eviction date, when the court record and other evidence makes clear Guzelian was evicted on July 9, 1981.

[16] Ground two is “violation of covenant.” Ground three is “nuisance.” Xerox pictures of an apartment with an enormous number of bags are on the back side of the document.

[17] In the 1985 Herald article cited above, you are quoted as stating, “We adopted her.  I know that it sounds crazy, but Mary was ours.  And she wasn't even in my district.”

[18] On March 2, 1987, McDermott testified in a Cambridge Rent Control Board matter that she first met Guzelian in March 1981.  That involved an action (SCZ-86295) brought by several present and/or former tenants against the estate of Guzelian in which they sought a determination as to the proper rent for 118-120 Aberdeen Avenue.

[19] As of the spring of 1981, Muse was a Boston attorney involved in the general practice of law. A significant portion of his practice involved his acting as legal counsel to the Service Employees International Union (SEIU), Local 254. He was at that time your friend. He was a frequent visitor at your office. It would not be unusual for you and he to socialize after work. In addition, he was a registered lobbyist for various clients, and, on occasion, would lobby you regarding matters of interest to those clients.

[20] According to Allen, he had seen the extent of the garbage that was piled up in Guzelian's apartment and was concerned about a fire hazard. He had also received complaints from other tenants that Guzelian was screaming and urinating in the hallways.

[21] According to Channel 5, it broadcast this interview on July 10, 1981. The release date on Capone's print story is also July 10, 1981. These factors, combined with references in both stories to events taking place that day, suggest that this Harrington interview occurred on Friday July 10, 1981, rather than the previous day. Moreover, Harrington recalls that the story was broadcast on the same day that the interview was conducted.

[22] Apparently, not all of what Harrington recalled you stating on camera was used in the July 10, 1981 broadcast. (Channel 5 cannot find any “out takes” from this broadcast.) Thus, the description of the apartment and the references to medical needs being met and staff helping with the eviction issue, did not appear in the broadcast.  Harrington subsequently did a follow-up story in which, according to the broadcast, you said: “What we've done is we've put her in temporary housing, at the present moment. Within a month she will be in permanent housing. We've cleaned her up a bit. We've gotten clean linen and things like that. We're going to put her legal affairs in order, and most of all we're ... looking to take care of her overall needs for the near future.” Channel 5 informed us that this story was broadcast on July 24, 1981.

[23] Ryan was a local attorney who Muse knew.

[24] Shawmut Bank representatives informed us that the valuables only remained at the bank for a day or so.  The money was counted by representatives of your office, and then moved out of the vault.  As we understand it, the money was then deposited into the Provident Institution for Savings.

[25] You testified that in this time-frame you recalled a priest from St. Ignatius or St. Columbkille was helping Guzelian in some fashion.

[26] Muse, had little, if any, recollection of the specifics of the weekend conversation.  He only knew that based on the substance of the conversations at the subsequent meeting, it was clear to him that Guzelian wanted him to act as her attorney for purposes of dealing with any issues arising from the valuables which had been discovered.

[27] Subsequently, after reviewing his testimony, Muse informed the Commission through counsel that he did not make these arrangements and does not know who did.

[28] We deposed Doctor Fuller. He is an internist. He testified that in his view Guzelian did have sufficient mental capacity to understand the nature of her actions. He had no serious concerns that Guzelian was mentally ill at the time he examined her.

[29] Again, McDermott's name at that time.

[30] As noted earlier, Muse at this time was acting as legal counsel to the SEIU, Local 254. Consequently, the local gave him space at their offices.

[31] Leazott was a business agent for SEIU and Chuminski was a cleaning person.

[32] Chuminski only recalled seeing Guzelian for a few moments where they exchanged pleasantries.  Leazott recalled that these events took approximately a half an hour.

[33] As to his August 28, 1981 recommendation, “evaluation by psychiatrist or psychologist,” in his view Guzelian was competent to make her own judgments regarding whether she should have such an evaluation. He did not feel the need to make a referral. He could not recall the specific reason he made this recommendation.

[34] A Sancta Maria Hospital physical therapist recalled your visiting Guzelian in 1981.

[35] Dr. Ranere is an internist.

[36] We deposed Dr. Ranere. He testified that Guzelian was unique, eccentric, sometimes demanding, sometimes coy, and sometimes manipulative. She probably suffered from a personality disorder, but otherwise her thought processes were intact. This personality disorder was a form of mental illness, yet it would not prevent her from understanding the nature of her acts, and thus she had mental capacity to assent to the various petitions in the probate court, according to Dr. Ranere.

[37] Dr. Ranere stated that Guzelian's mental demeanor at this time was that she could converse normally, she understood what was being said, and generally had good thought process. She was, however, difficult to deal with sometimes.

[38] Paget's Disease involves an enlargement of and weakening of the bones through an overly rapid replacement process. Enlarged bones can press on nerves causing hearing, visual and other problems.

[39] This psychiatrist obtained a protective order from the Superior Court enjoining the Commission from publishing his identity, the contents of his notes or his direct testimony.

[40] We deposed this psychiatrist pursuant to a court order. He testified that in his current medical opinion, Guzelian lacked testamentary capacity in 1983 (and, based on his own records and knowledge only, her mental status was probably the same in 1981.) He based this opinion on his view that Guzelian had no appreciation of her assets and, that consistent with his diagnosis, she would have been incapable of love or emotional attachments to people. He qualified that statement by saying that someone with Guzelian's condition could make a bequest out of spite or to hurt someone she regarded with suspicion. He also observed that he felt McDermott genuinely loved Guzelian and was seeking to do what was appropriate for her.

[41] Applications pursuant to G.L. c. 123, §12, for the involuntary hospitalization of a person were, at the relevant time, on pink paper, hence the phrase “pink paper.” They were issued where, after examination, it had been determined that the failure to so hospitalize would create a likelihood of serious harm by reason of mental illness. Pursuant to §12, the subject had the option of invoking c. 123, §10's voluntary commitment provisions. Only if the application was made by a physician specifically designated to have authority to admit to a mental health facility, would the person be admitted immediately. Otherwise, such a person would be given a psychiatric examination immediately after his reception at such facility. Such admissions would last for no more than a 10 day period, unless an appropriate court order were obtained.

[42] Again, consistent with the above-cited protective order, we have not identified this psychiatrist.

[43] There is no record of Guzelian having been examined by Dr. Ranere or anyone else from Belmont Associates between the time of her January 24, 1983 discharge from the Sancta Maria Hospital and her death on June 25, 1985. Dr. Ranere did, however, order a CT scan for her in late August 1983. It is unclear what prompted that request.

[44] We have a copy of the July 30, 1985 notice sent to McDermott. No one can find any written notice to you; however, Muse testified that a notice similar to McDermott's was sent to you on or about the same date.

[45] We asked Muse whether he was familiar with the requirements of G.L. c. 201, §38, which provides that a conservator or guardian “shall have custody of all wills, codicils, and other instruments purporting to be testamentary dispositions executed by his ward.” Muse stated that he was aware of that law at the time he drafted the will. However, in his view, the law did not apply to the Guzelian situation. We do not understand why the law does not apply to this situation.

[46] A check issued on March 13, 1986, on Guzelian’s estate account, indicates that $32,730 was paid to Muse for legal fees regarding that conservatorship.  Muse testified that some portion of that amount was for his legal work for the estate.

[47] As noted above, the Commission completed its preliminary inquiry into certain G.L. c. 268A allegations on October 25, 1991. In the Commission's view, the only distribution you received which would be actionable under its statute of limitations would be the last one you received, i.e., the $21,892.49 check issued to you on October 25, 1988. (Similarly, the only then actionable distribution for McDermott would be the check issued to her on October 25, 1988, for $33,642.49.) You maintain that the statute of limitations bars action by the Commission even with respect to these final distributions.

[48] These figures are based on our review of the executor’s accountant’s records, the executor’s cancelled checks, and the probate records. We note that the probate records appear to be incorrect in indicating that McDermott received $198,642.49.

[49] One witness, Boston taxi cab driver Lawrence D. Cronin, stated that one night, perhaps in the fall of 1983, Guzelian asked him if he knew you. Guzelian then told him, “[Fitzgerald] is my boy.” And “he is my son.” Guzelian went on to say, according to Cronin, “He takes care of me and I am going to take care of him. His friend is wonderful. His friend comes over and cleans my house.”

[50] The conservatorship checking account ledger indicates check number 169, payable to Muse, totaling $294.09, was for “expenses at birthdays.” Neither Muse nor McDermott could recall any information regarding this check. The check itself is dated October 21, 1981 and bears only the notation “expenses.”

[51] We have copies of a Christmas card and two birthday cards sent by Guzelian to McDermott on December 25, 1981, November 25, 1981, and November 25, 1982, respectively. We also received four notes written by Guzelian to McDermott. One note states, in part, “Dear Pat: I love you and my son Douglas. You really did me a big favor. I won’t forget it. ... While you were here cleaning the sun was out. Then I got cold. Pat I love my refrigerator so don’t throw anything out. That will be my job to clean the refrigerator. I am free this Friday and Saturday all day. Please call the electrician and plumber for this (illegible). Thank you.  Pat would you please clean that little bit in the bathroom because when I bend down - I fall and I can’t get up.  Then will you please set the clock radio on loud on the station where the news and weather comes on set it for 8:00. Pat please call me tomorrow Thursday as early as 6:00 in the morning? This girl always gives me $50 once a month and second Thursday of the month and takes me to a hotel to eat. Thanks a million. Love Mary. P.S. Pat bring my prescription for two pairs of peds for my veins in my legs they help me a lot. Also please lock the storm window and the regular window because I have congested head failure. I had two blackouts already  - before I knew you.   Dr. Reinhold when he was good to me to wear a sheepskin hat. Thank you. Love Mary [underlining in original].” A second note reads, “Dear Pat: I love you and Doug, very much for helping me.  Pat dear please don’t put anything in the yellow trash can in the kitchen. Put it in the paper bags that I neatly folded on top of the trash bags I put on the floor next to the lamp then put this one you used where we put the trash, don’t throw away any bags away please!  The bananas I just brought home (illegible) put them in the bin because it’s very dirty and sticky.  I’m going to wash my clothes when I come home tonight.  Pat please open the clothes drawer and please put the white (illegible) tip that is on the table next to the dryer and then put it in the bathtub.  Thank you Pat. Love Mary. P.S. Please call me very early for mass Saturday. Set the clock radio for 8:00 but call me earlier if you are up.”

[52] In this regard, we note that at the Cambridge Rent Control Board March 2, 1987 hearing, McDermott testified: “Mary did not live the normal lifestyle that we did. She slept unusual hours... She had no conception of time or anything. If she happened to be downtown and it was late and she missed the last train, she would go into the Mass. General and sleep in the lobby... She would go to Rosie’s Place, or just whatever was convenient.” It is unclear from the Rent Control Board testimony whether McDermott was describing Guzelian’s lifestyle prior to Guzelian’s Cambridge apartment being rented (sometime in 1982) or through the time of Guzelian’s death.

[53] See the note quoted above in which she refers to “my son, Douglas.”

[54] Issued May 14, 1985.

[55] “Where a public employee is in a position to take official action concerning matters affecting a party’s interest, the party’s gift of something of substantial value to the public employee and the employee’s receipt thereof violates §3, even if the public employee and the party have a private personal relationship and the employee does not in fact participate in any official matter concerning the party, unless the evidence establishes that the private relationship was the motive for the gift.” In the Matter of Charles F. Flaherty, 1990 SEC 498,500.

[56] We are aware of no G.L. c. 268A precedent in which §3 in particular, or G.L. c. 268A generally, has been applied to bequests. There does not appear to be any G.L. c. 268A legislative history dealing with bequests. Nor do we find any cases dealing with the issue under the federal counterpart of our §3, 18 USC §201(g), or any other conflict of interest law. The only citation that we have found that is somewhat on point is a letter from the Office of Government Ethics (OGE) responding to a request for an opinion as to whether certain United States Post Office employees could receive bequest from a deceased patron of their post office branch. The opinion addresses the issue of whether the bequest would be compensation for services under the provisions of 18 USC §209, and thus barred. (The opinion also observed that on the facts presented therein the receipt of the bequest did not violate any other federal conflict of interest provision.) The opinion concludes that the receipt of the bequest under the circumstances of the facts presented would not be prohibited by §209(a). The opinion makes clear, however, that bequests are covered by §209(a).            In reaching that conclusion, the opinion makes reference to §209(3A) of Title H of the Ethics in Government Act of 1978, Pub. L. N. 95-521, 92 Stat. 1849 (1978), as defining “gifts” as not including bequests and other forms of inheritance. (The referenced Ethics Act is the apparent counterpart to our financial disclosure law, G.L. c. 268B.) The OGE opinion states, “but since there is little discussion in the legislative history concerning this section of the Ethics Act, it is difficult to draw any definitive conclusions of what Congress might have intended by that definition for the issue presented here.”

[57] The phrase “item of substantial value” is not defined in G.L. c. 268A. It has been construed by the courts to include anything in value of at least $50. Commonwealth v. Famigletti, 4 Mass. App. 584, 587 (1976). Similarly, the Commission has taken the position that anything in value of $50 or more is substantial value.

[58] For a comparable rule see Code of Judicial Conduct, Canon 5(C)(4)(c), which states: “A Judge or member of his family residing in his household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before him, and if its value exceeds $100, the Judge reports it in the same manner as he reports compensation in Canon 6(c).” Thus, it would appear that if Guzelian had left a bequest to a judge who had presided over a lawsuit in which she was involved, the judge would not have been able to accept it. We have not found any other codes of conduct addressing this issue.

[59] The legislative history of G.L. c. 268B sheds no light on why bequests were excluded from gifts that have to be reported on statements of financial interests.

[60] The mere fact of being named a beneficiary is not of substantial value because it is contingent.  The will can be revoked at any time.

[61] “Chapter 268A is concerned with the appearance of and the potential for impropriety as well as with actual improprieties.” Id. at 214

[62] As stated above, §3 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 acts within his official responsibility performed or to be performed by him.

[63] After all, that is when Guzelian, apparently for the last time, really focused on the issue of who she wanted to inherit her estate. Her donative intent can be best construed based on the circumstances immediately pre­ existing her signing her will, not on what happened thereafter.

[64] As discussed above, §3 refers to accepting an item of substantial value for or because of official acts or acts within one’s official responsibility. “Act within his official responsibility” is not defined in G.L. c. 268A. However, “official responsibility” is defined as “The direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove, or otherwise direct agency action.”

[65] You are quoted as saying in the November 14, 1985 Herald article, “We adopted her.”

[66] McDermott stated that when she went to the Rent Equity Board with Guzelian, she did so as one friend helping another. That friendship, however, appears to have developed based on a few phone calls. (She had not yet met Guzelian at the time.) In contrast, both Peters and Allen stated that McDermott introduced herself as your administrative assistant, and appeared to be dealing with Guzelian as part of her official duties.

[67] In addition, your conduct can be viewed as involving “official acts.” “official act” is defined as “any decision or action in a particular matter or in the enactment of legislation.” G.L. c. 268A, §1(h). The definition of particular matter includes a decision or a determination. G.L. c. 268A, §1(k).  Your decision, in effect, to have your office “adopt” Guzelian, and all that that implied, was such a determination.  In addition, the various decisions you made on the day the money was found also involved actions in a particular matter.

[68] There is a question as to the duration of your relationship with Guzelian prior to the execution of her will. There is evidence that suggests it was a year or more (such as the statement on the conservatorship petition written by Judge Fitzpatrick and Mr. Burke’s testimony concerning the Christmas poinsettia). There is also evidence that it could have been a period of three to four months (such as McDermott’s testimony at the Cambridge Rent Control Board and the medical history taken by Dr. Fuller at the time he first examined Guzelian). For the reasons articulated in the text, it is unnecessary to resolve this question.

[69] E.g., Pezzella, 1991 SEC 526; Galewski, 1991 SEC 504; Zeppieri, 1990 SEC 448; Singleton, 1990 SEC 476; and Cibley, 1989 SEC 422.

[70] Section 23(b)(3) goes on to provide, “It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.”

[71] E.g., Pezzella, 1991 SEC 526; Garvey, 1990 SEC 478; Keverian, 1990 SEC 460.

[72] A proper disclosure, while avoiding the §23(b)(3) issue, would, of course, not avoid the §3 issue already discussed.

[73] As discussed above, cognizant that the Attorney General and U.S. Attorney may be conducting investigations into your dealings with Guzelian, the Commission directed the staff to forward our investigative materials to those agencies for any action they deem appropriate.

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