Letter Ruling  Public Enforcement Letter 91-2: Lieutenant Donald Whalen

Date:	03/12/1991
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

Lieutenant Donald Whalen

c/o Dennis R. Brown, Esq.
12 Washington Street
Wellesley, MA 02181

As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that you have been involved in attempting to fix tickets at the request of fellow police officers connected in some way to the person ticketed.  The results of our investigation (discussed below), indicate that the conflict of interest law may have been violated in this case.  In view of certain mitigating circumstances (also discussed below), the Commission, however, does not feel that further proceedings are warranted.

Rather, the Commission has determined that the public interest would be better served by bringing to your attention the facts revealed by our investigation and by explaining the application of the law to such facts, trusting that this advice will ensure your future understanding of the law.  By agreeing to this public letter as a final resolution of this matter, you do not admit to the facts and law discussed herein.  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.

I.  Facts

1.  At all relevant times, you were a lieutenant in the Wellesley Police Department (WPD). As such, you were a "municipal employee" as defined by G.L. c. 268A, §1.

2.  According to the court record copy of traffic citation no. A2217623, a citation was given to Elizabeth Finneran on October 29, 1987 by WPD Officer Richard Peterson.  The ticket was for a red light violation.  The fine was $20.  The court record copy indicates that there was a hearing regarding the citation on February 24, 1988 at the Dedham District Court, and Finneran was found not responsible for the violation.

3.  In an undated note to Police Prosecutor Peter Nahass, you wrote the following:

          I got a call from Lt. Finneran Mass. State Police.  He is an old friend of mine.  His son is a Southboro cop.  Dick Peterson stopped his daughter Elizabeth, and cited her for a red light.  He put in for a hearing.  It is coming up February 24, docket number NC16545.  Elizabeth L. Finneran, 538 Potter Road, Framingham. Ticket no. A2217623.  Can you get me some consideration on it.  If she has to appear let me know.

4. You provided us with the following information: You have been employed by the WPD since June, 1971. You were promoted to sergeant in 1979 and to lieutenant in 1982. Your primary responsibility as lieutenant is supervising the detective bureau.

As to the Finneran citation, you received a phone call from retired State Police Lieutenant Finneran.  Finneran asked you if something could be done to assist his daughter with the citation.  You agreed and told Finneran you would write a note to the prosecutor.  You did so.[1]  Finneran probably called you a couple of days before the hearing.  Your understanding was that Finneran was asking to have the ticket dismissed.  Finneran did not directly ask that but simply requested if you could help his daughter out.[2]   When you wrote the note to Nahass about getting consideration, consideration meant to have the ticket dismissed.  You justified your actions on the basis that by helping Finneran, you maintained good relations with the state police and, therefore, it was in the interests of the WPD for you to act as you did.  (You stated that Finneran was the only contact you had with the state police on the Massachusetts Turnpike. He had worked out of the Weston barracks.)  Ultimately, you stated that a combination of factors were involved:  Finneran could provide professional assistance in investigations and you and he were fellow police officers and had taken classes together.

We asked you how you would distinguish between consideration being used as a legitimate tool to further professional relationships among various police departments from a situation where anyone who simply knows the police officer can have tickets fixed.  You stated that first it has to be understood that consideration is never sought on anything other than a minor motor vehicle violation.  It would not be sought for a driving under the influence case, for example.  In addition, there has to be some decision as to what the return benefit would be.  If the return benefit cannot be articulated, then consideration should not be sought.

In your view, this practice goes on state-wide and it is to be expected.  Any department which is not willing to cooperate soon becomes ostracized.  Currently, no one in the WPD seeks consideration on traffic citations and this has caused the department to develop a reputation with other departments. Getting cooperation from other departments has become more difficult as a result. Any officer who is being truthful would corroborate your information as to the common practice of seeking consideration on tickets within the department.

II. Analysis

As a Wellesley police officer, you are a municipal employee for purposes of the conflict of interest law, G.L. c. 268A. Section 23(b)(2) prohibits a municipal employee from using or attempting to use his position to secure an unwarranted privilege of substantial value not otherwise available to similarly situated people. Section 23(b)(3) prohibits a municipal employee from acting in a manner which would cause a reasonable person knowing all of the relevant circumstances to conclude that anyone can unduly enjoy his favor in the performance of his official duties.

"Ticket-fixing" violates §23.  See generally, In the Matter of Lawrence Cibley, 1989 SEC 422 (Commission approved disposition agreement in which Selectman Cibley paid $1,000 fine for violating §§23(b)(2) and (3) by asking police to fix a friend's ticket).  Thus, in the Commission's view, if a public official/employee is involved in seeking and/or obtaining special consideration on tickets because the alleged violator has private connections to that public official/employee, such conduct would raise §§23(b)(2) and (b)(3) issues. If the ticket involved a fine of $50 or more, the substantial value requirement would be satisfied for §23(b)(2) purposes. In addition, if the reason consideration were sought was private connections to a public official/employee, that would involve an unwarranted privilege.  Accordingly, such conduct would have violated §23(b)(2). In addition, such conduct would cause a reasonable person knowing all of the relevant circumstances to conclude that the alleged violator could unduly enjoy the favor of the public official/employee who seeks or grants such consideration.

You concede you wrote the above-quoted note, and that you were trying to get the ticket dismissed. Your rationale was part friendship, part "professional courtesy" and part business. (The business part is based on your position that police departments have to grant these requests in order to cultivate good relations with other police departments.) The friendship and "professional courtesy" reasons are clearly improper. Further, in our view, while we are sympathetic with the objective of cultivating good relations with other departments, dismissing tickets for no other reason than the fact that the driver has a private relationship with a police officer is an unwarranted means for achieving that end.

Consequently, in the Commission's view, the evidence would support a reasonable cause finding that you violated §23(b)(3) in that your conduct would cause a reasonable person to conclude that Elizabeth Finneran could unduly enjoy your favor in the performance of your official duties. On the other hand, there is no §23(b)(2) violation here because the ticket in question was only for $20.[3]

In our view the seriousness of this case transcends the dollar amount of the ticket and the fact that it involved only a request.  The ability of a police officer to seek special treatment for somebody because of that person's private relationship to a police officer is the kind of conduct that offends and troubles people. It demonstrates that there is one standard for the public, but a different standard for those with private connections to the police.  In the area of law enforcement, the standards must be clear and be administered in an even-handed way.  If you are correct in your view that this practice is widespread, then other police officers need to be informed and warned that this activity is unlawful.  The wide dissemination of this letter by the Commission, with your consent, should help achieve that purpose.

III. Disposition

III. Disposition

Based on its review of this matter, the Commission has determined that the sending of this letter should be sufficient to ensure your understanding of, and your future compliance with, the conflict of interest law.[4] This matter is now closed.

[1] You may have spoken with Officer Peterson, the issuing officer, before writing the note because your normal practice was not to get involved unless the issuing officer knew of the situation and approved of it. It is a kind of unwritten rule that police officers follow, according to you.

[2] According to Finneran, he just wanted to make sure that if his daughter went to appeal the ticket, that the process would not be overwhelming and that someone would be there to guide her through. He did not ask you to fix the ticket. He only knows you from taking classes together at Northeastern University. He called you because he did not know any other Wellesley police officers.

[3] As we understand it, the red light citation would have no accompanying insurance surcharge.

[4] The Commission is authorized to impose a fine of up to $2,000 for each violation of G.L. c. 268A. The Commission chose to resolve this matter with a public enforcement letter for the following reasons: (1) You do not appear to have attempted to exert any pressure on police prosecutor Nahass to dismiss the ticket. Compare, Cibley where the person making the request was a selectman, a member of the board with the most significant power in the town, including jurisdiction over police matters. (2) You were making only a request. You were not in a position to dismiss the ticket yourself. (3) The amount of the ticket was relatively small. (In Cibley the ticket was for $200.) (4) Most importantly, there probably has been a widespread misapprehension among police officers that it was appropriate to seek consideration on tickets when requested by a fellow police officer, in part as a professional courtesy and in part to cultivate good relations with the officers' police department. You appear to have written your note primarily for those reasons, as opposed to strictly private reasons.