Letter Ruling  Public Education Letter: William Conlon

Date:	06/22/2011
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

William Conlon

c/o Stephen Pfaff, Esq.
Louison, Costello, Condon & Pfaff, LLP
101 Summer Street
Fourth Floor
Boston, MA 02110

Dear Mr. Conlon:

As you know, the Ethics Commission has been reviewing information relating to actions taken by you in your capacity as Brockton Police Chief, and has authorized an inquiry into allegations that, in 2008, you violated section 23(b)(2) of G.L. Chapter 268A, the conflict of interest law, by authorizing two police officers to use special detail time to attend a political fundraiser for Brockton Mayor James Harrington.

Based upon our investigation, which included your statement under oath, the Commission voted on February 18, 2011, to find reasonable cause to believe that you violated G.L. c. 268A, § 23(b)(2). For the reasons discussed below, the Commission does not believe that further proceedings are warranted. Instead, the Commission has determined that the public interest would be better served by bringing to your attention, and to the public's attention, the facts revealed by the preliminary inquiry, and by explaining the application of the law to the facts, with the expectation that this advice will ensure your understanding of, and future compliance with, the conflict of interest law.

By agreeing to this public letter as a final resolution of this matter, you do not admit to the facts and law discussed below. The Commission and you have agreed 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.

Facts

On June 19, 2008, you authorized two Brockton police officers, who were elected members of their union, to use special detail time, and earn their regular shift pay, to attend a political fundraiser for Mayor Harrington that evening at 6:00 pm. The purpose of their attendance was to conduct police "union business." At the time, the two officers' shifts were 4:00 pm - midnight and midnight - 8:00 am, respectively.[1]  A "special detail" is an occasion where an officer receives his/her regular pay while engaging in activities unrelated to his or her normal duties. For example, one might obtain approval to use special detail time to attend professional development courses.

The relevant section of the collective bargaining agreement, "Union Business Leave," states, in part, the following:

All elected Officers ... shall be allowed time off for Union business if that need arises during the regularly scheduled work hours, subject, nevertheless to the sole discretion of the Chief of Police or the Chief's designee.

The collective bargaining agreement does not define "Union business." When asked whether being allowed "time off" included receiving one's regular pay, you replied that it had been a past practice to allow police officers who were union officials to engage in union activities without foregoing pay. Where it had been the "past practice" to interpret the collective bargaining agreement's reference to "union business" as including attendance at political fundraisers, you believed that this entitled the police officers at issue to use a special detail to attend Mayor Harrington's fundraiser.

The value of the special details that you authorized on June 19, 2008, totaled approximately $500.

Legal Discussion

As the Brockton Police Chief, you are a "municipal employee" as that term is defined in G.L. c. 268A, § 1(g). As such, you are subject to the provisions of the conflict of interest law that apply to municipal employees, and, in particular, for the purposes of this discussion, to § 23 of that statute.

Section 23(b)(2) [2] of G.L. c. 268A prohibits a municipal employee from, knowingly or with reason to know, using his official position to secure for himself or others an unwarranted privilege or exemption of substantial value not properly available to similarly situated individuals. Notwithstanding the collective bargaining agreement or any interpretation thereof, paying municipal employees to attend a political fundraiser is a use of public resources for a political and/or private purpose and, as such, is a violation G.L. c. 268A, § 23(b)(2). See Commission Advisory 11-1 ("[A] public employee may not engage in political activity, whether election-related or non-election related, on his public work time.").

Attending the fundraiser on paid public work time was a privilege. The privilege was unwarranted because no statute or regulation authorized the use of compensated public work time by the two officers to attend a political event. The unwarranted privilege was of substantial value, i.e., at least $50 or more. You used your official position as the Brockton Police Chief to authorize the police officers to attend the fundraiser. This privilege was not properly available to similarly situated individuals. Therefore, by authorizing police officers to use public work time to attend a political fundraiser, you knowingly or with reason to know, used your official position as chief to secure for the two officers the unwarranted privilege of using public resources worth $50 or more for a private and/or political purpose. Therefore, the Commission found that there was reasonable cause to believe that you violated § 23(b)(2).

Disposition

The Commission is authorized to resolve violations of G.L. c. 268A with civil penalties of up to $10,000 for each violation, except that a civil penalty of up to $25,000 may be imposed for G.L. c. 268A, § 2 violations (bribes). The Commission, however, has chosen to resolve this case with a Public Education Letter rather than by imposing a fine because it believes the public interest would best be served by doing so. Public officials should understand that collective bargaining agreements cannot explicitly or implicitly authorize conduct that violates the conflict of interest law. The purpose of this public education letter is to emphasize that point.

Based upon its review of this matter, the Commission has determined that your receipt of this Public Education Letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law.

This matter is now closed.

Very truly yours,

Karen L. Nober
Executive Director

[1] As to the officer working the midnight - 8:00 am shift, you expressed concern that without the special detail to attend the fundraiser, the officer could suffer fatigue during his shift.

[2] As was in effect prior to the 2009 amendment, 2009 Mass Acts 28