Letter Ruling  Public Education Letter: Seth Peterson

Date:	07/29/2015
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

Massachusetts State Police Trooper Seth Peterson

c/o Richard Rafferty, Esq. and Greg Benoit, Esq.
Eden & Rafferty
238 Shrewsbury Street
Worcester, MA  01604

Re:  Public Education Letter:  Use of Public Position

Dear Trooper Peterson:

      As you know, the State Ethics Commission conducted a preliminary inquiry into allegations that you, in your capacity as a Massachusetts State Police (“State Police”) Trooper, violated Sections 23(b)(2)(ii) and 23(b)(3) of the conflict of interest law, G.L. c. 268A.  A potential conflict of interest arises whenever a public employee acts on matters involving family members.  The abuse of one’s public position, such as when a public employee uses his official position to secure an unwarranted privilege of substantial value for a family member, is a conflict of interest.  Moreover, public employees who use their official positions to retaliate against someone else for their own personal satisfaction also violate the conflict of interest law. 

     Specifically, the preliminary inquiry focused on the claims that you attempted to use your position as a State Trooper as follows: (1) to have your family member’s tow bill reduced; (2) to take punitive actions against the tow company involved, including depriving the company of work to which it would have been entitled; and (3) by participating in the inspection of the tow company which ultimately resulted in the temporary removal of the company from the regional State Police tow lists.  Based on the Enforcement Division staff investigation, the Commission voted on May 21, 2015 to find reasonable cause to believe that you violated G.L. c. 268A, §§ 23(b)(2)(ii) and 23(b)(3).

     Rather than authorizing an adjudicatory proceeding against you, the Commission has determined that the public interest would be better served by publicly discussing the facts revealed by the preliminary inquiry, and by explaining the application of the law to the facts.  The Commission chose to resolve this matter through this Public Education Letter because the State Police took disciplinary action against you by imposing a forfeiture of 15 vacation days at a cost to you of approximately $5,500.

     The Commission and you have agreed that there will be no formal proceeding against you in this matter, and you have chosen not to exercise your right to a hearing before the Commission. 

Facts

Attempt to Have Your Family Member’s Tow Fee Reduced

     At all times relevant, you were the Tow Officer for the State Police Yarmouth Barracks.  As Tow Officer, you served as a liaison for both State Police troopers and the general public when dealing with tow companies.^[1]  As part of your duties, you worked with local tow companies on the State Police list and were generally responsible for ensuring that they were in compliance with the State Police tow service agreement.

     On July 17, 2011, your cousin was involved in an accident on Route 6 in the jurisdiction of the State Police Bourne Barracks.  A tow company on the State Police list (“Tow Company X”) responded to a call from the State Police Bourne Barracks and used two tow trucks to tow your cousin’s vehicle to the tow company’s location.  The tow charge to your family member was $353.90. 

     Approximately three weeks after the July 17, 2011 towing of your cousin’s vehicle, you travelled to Tow Company X in your State Police cruiser.  You wore your State Police uniform.  You informed Tow Company X’s manager that you were responding to a complaint of overcharging with respect to a July 17, 2011 tow of a vehicle.  You did not immediately reveal that you were referring to your family member’s tow bill.  The manager was aware that you were the Yarmouth Barracks Tow Officer, and asked why you, and not an officer from the Bourne Barracks, had responded to the complaint.  You answered that you had done so because the Yarmouth Barracks is closer to Hyannis than the Bourne Barracks.  This was not a true statement; you were there solely on behalf of your family member.  The manager retrieved the tow slip for the incident and noticed that the last name of the customer was the same as yours.  The manager asked you if you were related to the customer, and you acknowledged that the customer was your family member.  You then told the manager that you did not agree that two tow vehicles were required at the scene, and stated that the manager had overcharged your family member.  The manager offered to take an additional $100 off your family member’s bill and told you that she could come by to collect the money.  Neither your family member nor anyone on her behalf ever collected the $100 discount.

May 31, 2012 Passing Over of Tow Company X

     The State Police tow list works in a rotation, and the Yarmouth Barracks had three tow companies on its list, including Tow Company X.  State Police policy requires that the tow companies be contacted on a rotating basis in order to ensure that each company has a fair and equal opportunity to obtain business.  On May 31, 2012, in response to a call, you, as the Tow Officer, skipped over Tow Company X on the rotation, and directly contacted another tow company on the rotation.  This deprived Tow Company X of business to which it was entitled under State Police Policy.

Participation in Inspections of Tow Company X

     The tow service agreement between the local tow companies and the State Police states that the State Police Station Commander/Station Tow Officer shall annually inspect all tow trucks and storage facilities.  Additional inspections may be conducted without notice during normal business hours.  The State Police Towing General Order (TRF-09) states that State Police personnel shall conduct random inspections and may suspend, terminate and/or place on probation any tow company consistent with the Tow Service Agreement. 

     In March 2012, you submitted a report to your State Police superiors concerning inspections of four local tow companies on the State Police rotation list.  You found several issues and/or violations at Tow Company X.  In May 2012, a State Police Major informed all Yarmouth Barracks tow companies (which included Tow Company X) that audits/inspections would be conducted pursuant to the tow service agreement.  In June 2012, you participated in these inspections with a State Police Lieutenant.  You and the Lieutenant found several issues and/or violations at Tow Company X.  In July 2012, the Lieutenant recommended to the Major that Tow Company X be removed indefinitely from all State Police lists, based on the infractions noted above.  On August 9, 2012, the Major directed that Tow Company X be removed from the State Police lists.  [Tow Company X has since been reinstated on to the State Police lists.]

     The Lieutenant and the Major were unaware that you had complained to the tow company manager about a private matter involving your family member while you also participated in the inspections.  You did not file any disclosures revealing your prior interaction with Tow Company X on behalf of your family member before participating in the inspections of Tow Company X. 

State Police Internal Investigation and Disciplinary Action

     The State Police conducted a comprehensive investigation and made factual findings that are consistent with our independent review of the matter.  The State Police concluded that you violated State Police policies and procedures, and took disciplinary action against you by imposing a forfeiture of 15 vacation days at a cost to you of approximately $5,500.

Legal Discussion

Municipal Employee

     As a State Police Trooper, you are a “state employee” as that term is defined in G.L. c. 268A, § 1(q).

Section 23(b)(2)(ii) 

     Section 23(b)(2)(ii) of G.L. c. 268A prohibits a state 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.  The Commission has concluded that there is reasonable cause to believe you violated this provision of the conflict of interest law in two respects: (1) by using your position as a State Police Trooper to intervene in a dispute involving a tow company under your jurisdiction on behalf of a family member to attempt to reduce a tow charge; and (2) by using your position to deprive the tow company of business by skipping over it on the State Police tow rotation list. 

     First, you used your position as a State Police Trooper to pressure Tow Company X to refund your family member for a tow fee that you believed was too high.  You appeared in uniform at Tow Company X, and told the manager that you were responding to a complaint of overcharging with respect to the July 2011 towing of a vehicle.  Because you sought a reduction of the cost of the tow services for a family member, and it is not clear that the tow charge was excessive, the discount was an unwarranted privilege.  See EC-COI-93-6 (police may not solicit in uniform or offer decals).  The $100 reduction in the tow fee that the manager offered, under pressure, was of substantial value.  Similarly situated individuals, other drivers involved in motor vehicle accidents needing tow services, would not have a police officer available to renegotiate a tow fee on their behalf in such a manner.  See In re Basile, 2014 SEC 2493 (Suffolk County Sheriff’s Office Captain paid $1,000 civil penalty for violating § 23(b)(2)(ii) by meeting with his tenants to demand a rent increase, while in uniform, and while accompanied by a uniformed correctional officer, who was visibly armed with a gun, pepper spray, and baton).  Therefore, based on these facts, the Commission found reasonable cause to believe that you violated § 23(b)(2)(ii).

     Second, on May 31, 2012, in response to a call for assistance seeking a tow, you ignored State Police policy and protocol and bypassed the tow company involved in your family member’s dispute, and directly contacted a different tow company for the tow.  State Police policy required that you use the next qualified tow company on the tow list.  On this occasion, Tow Company X would have been entitled to respond to this tow.  By doing so, you improperly denied Tow Company X the business and tow fees to which it was entitled under the tow agreement with the State Police.  See In re Malone, 2012 SEC 2410 (Commission found that public employees who use their official positions to retaliate against someone else for their own personal satisfaction violate § 23(b)(2)(ii)).  Therefore, the Commission found reasonable cause to believe that you violated § 23(b)(2)(ii).

Section 23(b)(3) 

     The Commission also found reasonable cause to believe that you violated § 23(b)(3) by participating in inspections of the tow company without disclosing your prior dispute with the tow company involving your family member’s tow fees.  Section 23(b)(3) of G.L. c. 268A prohibits a state employee from acting in a manner that creates the appearance that the state employee can be unduly influenced or would act with undue favor towards anyone in the performance of his official duties.  This subsection’s purpose is to deal with appearances of conflict of interest and, in particular, appearances that public officials have given some people preferential treatment.  This subsection further provides the appearance of impropriety can be avoided if the employee discloses publicly all of the relevant circumstances that would otherwise create the appearance of conflict.

     By participating in the inspections of Tow Company X when you had intervened in a billing dispute with that company on behalf of your family member, you created the appearance that your family could influence you to not act impartially in your official responsibilities toward the tow company.  That the tow company was found in violation of several provisions of the tow contract during your inspections could be viewed as retaliatory.  The Commission found reasonable cause to believe that you violated § 23(b)(3) by acting in a manner that would cause a reasonable person knowing all of the facts to conclude that your family could improperly influence or unduly enjoy your favor in the performance of your official duties.

Disposition

     The Commission is authorized to resolve violations of G.L. c. 268A with civil penalties of up to $10,000 for each violation.  In resolving this matter with a Public Education Letter, the Commission recognizes that the State Police took significant disciplinary action against you.  The Commission has decided to defer to the administrative action taken by the State Police in this situation and not pursue this matter in an adjudicatory hearing.  Although the matter has been appropriately addressed by your employer, the conduct in question nevertheless warrants a public resolution.            

Very truly yours,

Karen L. Nober
Executive Director

^[1] You have since been removed as Tow Officer.