Settlement  Disposition Agreement in the Matter of Robert Gray

Date:	11/17/2022
Organization:	State Ethics Commission
Docket Number:	22-0009
Referenced Sources:	G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Disposition Agreement

The State Ethics Commission (“Commission”) and Robert Gray (“Gray”) 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 October 20, 2021, the Commission initiated a preliminary inquiry, pursuant to G.L. c. 268B, § 4(a), into possible violations of the conflict of interest law, G.L. c. 268A, by Gray. On September 8, 2022, the Commission concluded its inquiry and found reasonable cause to believe that Gray violated G.L. c. 268A, § 23(b)(2), and 23(b)(4).

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

Findings of Fact

1. Gray was at all relevant times a Project Engineer for the Commonwealth’s Division of Capital Asset Management and Maintenance (“DCAMM”).
2. In 2020 and 2021, Gray was assigned to projects at the Massachusetts State Public Health Laboratory (“State Lab”) in Jamaica Plain.
3. DCAMM policy at the time allowed employees to use rental cars, under DCAMM’s contract with Enterprise Rent-A-Car (“Enterprise”), for travel to jobsites, or to obtain reimbursement for miles traveled in their personal vehicle.
4. Under its contract with Enterprise, DCAMM paid a flat daily rate for rental cars, with no additional mileage charge.
5. Under DCAMM’s rental car policy, rental cars were to be used only for work purposes.
6. In January 2017, Gray received a written warning from DCAMM that rental cars were to be used only for work purposes and were not for personal use or convenience.  
7. Between March 7, 2020, and March 18, 2021, Gray obtained a rental car under DCAMM’s contract with Enterprise on 53 occasions. The vast majority of these rentals were for single Sunday through Saturday or Saturday through Saturday periods. Gray used a rental car for 16 consecutive days between December 26, 2020, and January 11, 2021, and again for 18 consecutive days between February 28, 2021, and March 18, 2021.
8. During the relevant time, DCAMM employees were able to reserve a rental car directly through DCAMM’s finance office.
9. Gray’s supervisor approved him having a weekly rental car for a limited period of five weeks during the spring of 2020 where Gray’s job duties required more frequent visits to the State Lab jobsite.  
10. Otherwise, Gray reserved rental cars directly through DCAMM’s finance office without his supervisor’s approval.
11. For the majority of the 53 rentals between March 7, 2020, and March 18, 2021, Gray obtained the rental cars knowing that he would use the vehicles for a personal, non-work purpose for at least part of the rental period.
12. Other than the limited period during spring 2020, Gray did not have a work-related need for a rental car on a weekly basis and did not visit the State Lab job site daily.
13. On 85 of the 288 calendar days on which Gray had a rental car in his possession, Gray did not record any work time.
14. Gray had a rental car in his possession on at least 40 full days which were weekend days, holidays, or days on which he used personal, vacation, or sick leave.
15. Under the DCAMM rental policy in effect at the time, Gray was approved to use DCAMM’s rental cars to travel between his home and his jobsite, as well as to DCAMM’s offices in Boston. The distance between his home and his jobsite at the State Lab was approximately 30 miles. The distance between his State Lab jobsite and DCAMM’s offices was approximately 6 miles.
16. In each of 20 of his 53 rental car use periods, Gray drove over 500 miles. In each of eight of those rental car use periods, Gray drove over 1,000 miles.
17. Between May 23, 2020, and May 29, 2020, which included Memorial Day weekend, Gray drove a rental car he obtained as a DCAMM employee 1,355 miles despite logging only four DCAMM work days during that period.
18. Between December 26, 2020, and January 11, 2021, Gray drove a rental car he obtained as a DCAMM employee 2,166 miles despite logging only eight DCAMM work days during that period.
19. On at least three occasions, Gray informed DCAMM’s finance office that he would be picking up a rental car for the work week when in fact he had already picked up the car the weekend before.
20. DCAMM estimated the value of Gray’s personal use of its rental cars to be $6,348.46. Gray agreed to DCAMM’s deduction of $6,348.46 from his accrued vacation time payout upon his retirement to return the value of his personal use of the rental cars to DCAMM.

Conclusions of Law

21. As a DCAMM Project Engineer, Gray was a state employee as that term is defined in G.L. c. 268A, § 1(g).

Section 23(b)(2)

22. Section 23(b)(2)(ii) of G.L. c. 268A prohibits a public employee from knowingly, or with reason to know, using or attempting to use their official position to secure for themselves or others unwarranted privileges or exemptions of substantial value not otherwise properly available to similarly situated individuals.
23. Gray’s unauthorized use for non-work purposes of rental cars paid for by DCAMM was an unwarranted privilege that was not properly available to any state employee.
24. The unwarranted privilege was of substantial value because Gray’s use for non-work purposes of rental cars paid for by DCAMM was worth well over $50.[1]
25. Therefore, by, as DCAMM Project Engineer, knowingly using his official position to obtain rental cars paid for by DCAMM for weeklong periods without a work-related need and by using the rental cars for his personal, non-work purposes, Gray knowingly or with reason to know, used his official position to secure for himself unwarranted privileges of substantial value not properly available to similarly situated individuals. In doing so, Gray violated G.L. c.268A, § 23(b)(2)(ii).

Section 23(b)(4)

26. Section 23(b)(4) of G.L. c. 268A prohibits public employees from knowingly, or with reason to know, presenting a false or fraudulent claim to his employer for any payment or benefit of substantial value.
27. As a DCAMM Project Engineer, Gray was an employee of DCAMM and DCAMM was his employer within the meaning of § 23(b)(4).
28. Gray knowingly, or with reason to know, presented a false and fraudulent claim for a benefit of substantial value to his employer, DCAMM, each time he requested a car rental through DCAMM’s finance office with knowledge or reason to know that he intended to or would use the vehicle for non-work purposes. By so doing, Gray violated G.L. c. 268A, § 23(b)(4).

Disposition

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

(1)        that Gray pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $5,000 as a civil penalty for violating G.L. c. 268A, §§ 23(b)(2), and 23(b)(4); and

(2)        that Gray 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, Gray acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to its terms and conditions.

[1] Substantial value is $50 or more. 930 CMR 5.05.