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Settlement

Settlement  Disposition Agreement in the Matter of Brooke Merkin

Date: 10/31/2022
Organization: State Ethics Commission
Docket Number: 22-0006
Referenced Sources: G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Table of Contents

Disposition Agreement

The State Ethics Commission (“Commission”) and Brooke Merkin (“Merkin”) enter into this Disposition Agreement pursuant to Section 3 of the Commission’s Enforcement Procedures. This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j).

On July 29, 2021, pursuant to G.L. c. 268B § 4(a), the Commission initiated a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Merkin. On January 19, 2022, the Commission concluded its inquiry and found reasonable cause to believe that Merkin violated G.L. c. 268A, § 7 and § 23 (b)(2)(ii) and (b)(4).

The Commission and Merkin now agree to the following findings of fact and conclusions of law:

Findings of Fact

  1. On January 25, 2021, Merkin began employment with the Center for Health Information and Analysis (“CHIA”) as a full-time Deskside Support Engineer. She was scheduled to work at CHIA Monday through Friday from 8:45 a.m. to 5:00 p.m.
  2. On February 16, 2021, Merkin began employment with the Executive Office of Technology Services and Security (“EOTSS”) as a part-time Service Desk Analyst. She was scheduled to work at EOTSS on Saturdays, Sundays, and Mondays from 7:00 a.m. to 3:00 p.m.
  3. CHIA and EOTSS are both agencies of the Commonwealth of Massachusetts.
  4. Merkin primarily worked remotely in both positions.
  5. Merkin held the paid positions at CHIA and EOTSS simultaneously without either agency’s approval or awareness.
  6. Between February 19, 2021, and March 1, 2021, Merkin sought payment from the Commonwealth for working both the CHIA position and the EOTSS position during the same hours, for a total of 31 overlapping hours.
  7. After CHIA and EOTSS discovered Merkin had submitted timesheets in both positions for the same hours, the agencies withheld payment for 14.5 of those hours and deducted the amount already paid to Merkin for 16.5 of the hours from her final paycheck.
  8. The 31 overlapping hours Merkin claimed would have resulted in an unearned and undue payment to her of over $1,200 had the double billing not been identified. 
  9. Merkin knew she submitted to CHIA and EOTSS timesheets for 31 hours that overlapped and knowingly gave false excuses to CHIA for her unavailability during hours when she was working for EOTSS. On February 19, 2021, she told her manager at CHIA that she could not work a full day due to an internet outage at her home. She was approved to work the remainder of the day using her cell phone. Later that day, she claimed mice had chewed through her internet cables. She submitted timesheets to both CHIA and EOTSS falsely reporting 6 hours worked for each agency, between 9:00 a.m. and 3:00 p.m., on February 19, 2021.
  10. Merkin attempted to resign her positions at CHIA and EOTSS in the beginning of March 2021. Neither agency accepted her resignation and both terminated her employment.

    Conclusions of Law
  11. Both as an employee of CHIA and as an employee of EOTSS, Merkin was, at all relevant times, a state employee as that term is defined in G.L. c. 268A, § 1(q).

    Section 7 Violation
  12. Section 7 of G.L. c. 268A prohibits a state employee from having a financial interest, directly or indirectly, in a contract made by a state agency in which the Commonwealth or a state agency is an interested party, of which interest she has knowledge or has reason to know.   A state employee who has an additional, compensated position with a state agency has financial interest in such a contract.
  13. Once Merkin, a state employee at CHIA, accepted the paid part-time Service Desk Analyst position at EOTSS, she became a state employee who had a financial interest in a contract made by a state agency in which the agency was a party and had a direct and substantial interest.
  14. Merkin knew she had a financial interest in her EOTSS employment contract given that her employment with that agency was compensated.
  15. By, while a state employee of CHIA, entering into paid part-time employment with EOTSS, Merkin  had a financial interest in a contract made by a state agency in which the agency was an interested party, of which interest she has knowledge or has reason to know. By so doing, Merkin violated G.L. c. 268A, § 7.

    Section 23(b)(2)(ii) Violation
  16. 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 her official position to secure for herself unwarranted privileges or exemptions which are of substantial value and are not properly available to similarly situated individuals. Pursuant to G.L. c. 268A, § 23(f), Commission regulation 930 C.M.R. 5.05 defines substantial value as $50 or more. 
  17. It is an unwarranted privilege of substantial value that is not properly available to similarly situated individuals for a state employee to receive pay, totaling $50 or more, from each of two state agencies for work hours during which the employee is separately employed by each agency to work exclusively for that agency.
  18. By, as a CHIA employee and as a EOTSS employee, submitting timesheets respectively to CHIA and EOTSS for overlapping work hours in an attempt to obtain pay from each agency for the same hours, which would have resulted in her being paid more than $1,200 for time she did not work, Merkin knowingly used her official positions to secure for herself a substantially valuable unwarranted privilege which was not properly available to similarly situated individuals. By so doing, Merkin violated G. L. c. 268A, § 23(b)(2)(ii).

    Section 23(b)(4) Violation
  19. Section 23(b)(4) prohibits a public employee from knowingly, or with reason to know, presenting a false or fraudulent claim to her employer for any payment or benefit of substantial value.
  20. Both as an employee of CHIA and as an employee of EOTSS, Merkin was employed by the Commonwealth of Massachusetts.
  21. The timesheets Merkin submitted in each of her state positions were each claims presented to her public employer for a payment of substantial value.
  22. Merkin knowingly submitted false or fraudulent claims for payment when she submitted separate timesheets to CHIA and EOTSS reporting to each agency that she had worked the same 31 hours.
  23. By, as an employee of CHIA and as an employee of EOTSS, knowingly submitting separate claims to both agencies for payment for the same work hours, Merkin presented a false or fraudulent claims to her employer, the Commonwealth, for payments of substantial value. In so doing, Merkin violated G.L. c. 268A, § 23(b)(4).

Resolution

In view of the foregoing violations of G.L. c. 268A by Merkin, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the basis of the following terms and conditions agreed to by Merkin:

(1)       that Merkin pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $2,500 as a civil penalty for violating G.L. c. 268A, §§ 7, 23(b)(2)(ii) and 23(b)(4); and

(2)       that Merkin waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

By signing below, Merkin acknowledges that she has personally read this Disposition Agreement, that it is a public document, and that she agrees to its terms and conditions.

STATE ETHICS COMMISSION

 

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