Letter Ruling  Public Education Letter: James Clark

Date:	06/30/2021
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Public Education Letter

June 30, 2021

 

Dear Mr. Clark:

As you know, the State Ethics Commission conducted a preliminary inquiry into whether you, in your capacity as a police officer in the Boston Police Department (“BPD”), violated the state conflict of interest law by providing an Application for Criminal Complaint to a friend of yours, which falsely stated that he had been arrested on July 4, 2016, for his use to explain his whereabouts on July 4, 2016. You cooperated fully with the inquiry.

On May 27, 2021, the Commission voted to find reasonable cause to believe that your actions, as described below, violated section 23(b)(2)(ii) of the conflict of interest law, General Laws chapter 268A, and authorized adjudicatory proceedings. The Commission has determined, however, that, in lieu of adjudicatory proceedings, the public interest would be better served by publicly discussing the facts revealed by the preliminary inquiry and explaining the application of the law to those facts in this Public Education Letter. By resolving this matter through this Public Education Letter, the Commission seeks to ensure that you and public employees in circumstances similar to those described below will have a clearer understanding of the conflict of interest law and how to comply with it.

The Commission and you have agreed that this matter will be resolved publicly with this educational letter and that there will be no formal proceedings against you. You have chosen not to exercise your right to a hearing before the Commission.  

The Facts

Background

You have been a BPD police officer for over twenty-five years. In July 2016, you were assigned as a patrol officer to the Brighton sector.

John Smith[1] is your best friend’s older brother. You testified that, although you have known Smith “since birth,” you have not had a close relationship with him since childhood.

In July 2016, Smith was employed as an MBTA bus driver. On May 13, 2016, Smith entered into a “Last Chance Agreement” with the MBTA. Under the Last Chance Agreement, Smith was subject to “immediate discharge” for any future violation of the MBTA attendance policy.

On July 4, 2016, Smith overslept and missed his MBTA shift. Smith told the MBTA that he had missed work on July 4^th because he had been arrested.

On July 11, 2016, Smith provided his MBTA employee union liaison with a document appearing to be an Application for Criminal Complaint to the Brighton District Court purportedly for charges against Smith from an incident on July 4, 2016. On July 12^th, Smith received notice from the MBTA of an abeyance of discipline pending the outcome of the criminal matter. MBTA officials quickly learned, however, that no criminal charges had in fact been filed with the court. On July 19, 2016, Smith resigned from his MBTA position in lieu of discharge. Smith admitted that he had overslept and that he had obtained the Application for Criminal Complaint from you.

The Application for Criminal Complaint

An Application for Criminal Complaint (“Application”) is a one-page document used by police and/or the public to apply for criminal charges from the district courts. It includes information about the accused and the alleged offense. Some courts and police departments have transitioned to an electronic complaint submission system. Members of the public may obtain an Application from the court clerk’s office and are required to pay a $15 filing fee.

The Application in question includes Smith’s full name and address under “information about accused,” and indicates that Smith was arrested on July 4, 2016, in Brighton. The Application lists a fictitious police officer’s name as the complainant and a fictitious police incident report number. The Application lists an offense code and description “Assault & Battery 209A.” The Application lists a female victim’s name and a place of offense. The form includes an illegible signature and is dated July 5, 2016.

According to Smith, he overslept on July 4, 2016, and was going to lose his job under the Last Chance Agreement. He “brainstormed” a way to save his job and called you to ask whether you could provide something to show he had been arrested. You told him there was nothing you could do, but Smith persisted.

You admitted under oath that you completed and provided the Application to Smith. You testified, however, that you did not know Smith intended to show the form to his employer, the MBTA. You also denied knowledge of Smith’s employment with the MBTA or the Last Chance Agreement. Rather, you stated that Smith called you, upset, because he had not returned home on the night of July 4, 2016, and had told his girlfriend that he had been arrested. He asked you for help.

You testified that you received Smith’s call while you were at roll call beginning your shift. According to your testimony, you determined that you could give Smith a paper Application because, while the paper forms were “obsolete” having been replaced by online complaint submissions, a civilian would likely not know the difference. The paper Application forms were kept in a closet at the BPD police station where you were at roll call.

You called Smith back and agreed to provide him with an Application to show that he had been arrested on July 4, 2016. You testified that Smith provided you with the information needed for you to complete the Application, including his personal information, the alleged offense, and the name of his ex-girlfriend as the alleged victim. You wrote the information provided by Smith on the Application and added a fictitious officer’s name and police report number, as well as a “random” address for the place of offense. You signed the Application with an illegible signature. Smith picked up the Application at your home a few days later.

The Application was never filed with any court, nor was any information associated with the alleged incident entered into any BPD record system.

Legal Discussion

Section 23(b)(2)(ii) of the conflict of interest law, G.L. c. 268A, prohibits a municipal employee from knowingly or with reason to know, using or attempting to use his official position to secure for anyone an unwarranted privilege of substantial value not properly available to similarly situated individuals.

As a BPD police officer, you are a municipal employee subject to the conflict of interest law. You admitted that you provided Smith with the completed Application falsely stating that he had been arrested on July 4, 2016. You had access to the paper Application forms, kept in a closet at the BPD station, because of your position as a BPD police officer. 

The false Application to support Smith’s false claim of arrest on July 4, 2016 was a privilege which you knowingly secured for Smith using your position as a BPD officer. This privilege was unwarranted as a crime had not occurred, an arrest had not been made, and the information contained within the Application was false. The sole legitimate use of a criminal complaint application is to document and present to the court information regarding potential criminal activity. You, by contrast, used the Application to fabricate an alibi for a friend.

The unwarranted privilege you secured for Smith was of substantial value. The Application falsely reporting his arrest was in fact substantially valuable to Smith as he intended to use it to maintain his paid employment with the MBTA. Even if you were unaware of Smith’s true intent, and even if you believed, as you testified, that Smith was going to use the Application to deceive his girlfriend regarding his whereabouts and thereby avoid or solve a domestic problem, you had reason to know, given the urgency and persistence with which he requested it, that the Application was of substantial value to Smith. Indeed, the fact that you agreed to provide the false Application and went to the time and effort to provide it to Smith, with whom you do not have a close relationship, demonstrates that you knew it was substantially valuable to Smith.  

This substantially valuable unwarranted privilege was also not properly available to similarly situated individuals because a person seeking to extricate themselves from employment or domestic difficulties cannot properly obtain an official, even if obsolete, application for criminal complaint, from a police station and apparently completed by a police officer, to use as an alibi to support their false claims of their whereabouts at a particular date or time.

Therefore, by providing Smith with the false Application you knowingly used your position as a BPD police officer to secure for Smith an unwarranted privilege of substantial value that was not properly available to similarly situated individuals. Accordingly, the Commission found reasonable cause to believe you violated § 23(b)(2)(ii).

Disposition

Based upon its review of this matter, the Commission has determined that the public interest would be best served by the issuance of this Public Educational Letter and that your receipt of this letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law.

This matter is now closed.

 

Sincerely,

David A. Wilson

Executive Director

 

 

 

[1] A pseudonym.