| Date: | 06/24/2019 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 19-0006 |
| Location: | Boston, MA |
The Commission approved a Disposition Agreement in which former Boston Public Health Commission (BPHC) worker Frederick Brack has admitted to violating the conflict of interest law by repeatedly using BPHC supplies, equipment, and worktime to do private snowplowing. Brack paid a $10,000 civil penalty.
The State Ethics Commission (“Commission”) and Frederick C. Brack (“Brack”) 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 September 20, 2018, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A, by Brack. On April 18, 2019, the Commission concluded its inquiry and found reasonable cause to believe that Brack violated G.L. c. 268A, § 23(b)(2).
The Commission and Brack now agree to the following findings of fact and conclusions of law:
1. Brack was during the relevant time an employee of the Boston Public Health Commission (“BPHC”).
2. In 2011, Brack began operating a landscape and snow removal service under the name Brack & Sons.
3. During the winter of 2016/2017, Brack was assigned to BPHC’s Mattapan campus, which includes a garage at 205 River Street (“BPHC Garage”). The public does not have access to the BPHC Garage. Salt is stored at the BPHC Garage.
4. During the winter of 2016/2017, Brack & Sons provided snow removal services for multiple clients, including Horizons, a shelter for victims of abuse, and the SPARK (Supporting Parents and Resilient Kids) Center at the Boston Medical Center (“the SPARK Center”), a medically-therapeutic childcare facility and day program. These properties are adjacent to each other and located about .2 miles from the BPHC Garage.
5. During the winter of 2016/2017, Brack was observed standing in front of the BPHC garage while he allowed his daughter to enter the BPHC garage and remove several bags of rock salt purchased by the BPHC and place them in her private vehicle. The salt was later used for Brack & Sons’ private work.
6. On December 17, 2016, Brack worked from 8 a.m. to 7:30 p.m. for BPHC.
7. On December 17, 2016, during his BPHC work hours, Brack used a BPHC snowplow truck (“snowplow”) to clear snow for the SPARK Center and Horizons as part of his private Brack & Sons’ snowplowing business.
8. Brack was paid a total of $655 by the SPARK Center and Horizons for plowing snow on December 17, 2016.
9. On January 31, 2017, Brack worked from 8:02 a.m. to 10:18 p.m. at BPHC.
10. On January 31, 2017, during his BPHC work hours, Brack used a BPHC snowplow to clear snow at both Horizons and the SPARK Center.
11. Brack was paid a total of $655 by the SPARK Center and Horizons for plowing snow on January 31, 2017.
12. On February 9, 2017, during his BPHC work hours, Brack used a BPHC snowplow to clear snow at both Horizons and the SPARK Center.
13. Brack was paid a total of $1310 by the SPARK Center and Horizons for plowing snow on February 9, 2017.
14. On February 11, 2017, Brack worked from 8:02 a.m. to 10:18 p.m. at BPHC.
15. On February 11, 2017, during his BPHC work hours, Brack used a BPHC snowplow to clear snow at both Horizons and the SPARK Center.
16. Brack was paid a total of $655 by SPARK Center and Horizons for plowing snow on February 11, 2017.
17. On March 14, 2017, Brack worked from 8 a.m. to 9:00 p.m. at BPHC.
18. On March 14, 2017, during his BPHC work hours, Brack used a BPHC snowplow to clear snow at both Horizons and the SPARK Center.
19. Brack was paid a total of $655 for plowing snow at the SPARK Center and Horizons on March 14, 2017.
20. Section 23(b)(2)(ii) of G.L. c. 268A prohibits a municipal employee from, knowingly or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.
21. As a BPHC employee, Brack was at all times relevant to this matter a municipal employee as defined in G.L. c. 268A, § 1.
22. Brack’s BPHC work hours, the BPHC snowplow, and the BPHC salt were public resources. The use of these public resources was a privilege.
23. Brack’s use of these public resources to perform private work for Brack & Sons was unwarranted because such private business use of such public resources is not permitted by law or regulation.
24. The unwarranted privilege secured by Brack for himself was of substantial value[1] because Brack’s use of the BPHC resources earned him $3,275. Additionally, Brack’s BPHC work hours, use of a BPHC snowplow and the BPHC salt were independently of substantial value: Brack’s BPHC’s compensation, in the winter of 2016/2017, was approximately $33 per hour, a snowplow would have cost $81.64 to $118.50 an hour to rent, and the BPHC paid $8.98 for each bag of salt that Brack used for his business.
25. This privilege was not properly available to similarly situated individuals because private citizens are prohibited from using public resources to further their business interests. Moreover, no other private landscaping/snow removal business properly had access to BPHC resources.
26. By, as described above, using public resources to perform work for his private business, Brack knowingly used his official position to secure for himself an unwarranted privilege of substantial value.
27. Thus, by using his official position as a BPHC employee to obtain and use BPHC resources for his private business activities, Brack knowingly used his BPHC position to secure for himself an unwarranted privilege of substantial value not properly available to other similarly situated individuals. In so doing, Brack violated § 23(b)(2)(ii) on six occasions.
In view of the foregoing violation of G.L. c. 268A by Brack, 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 Brack:
By signing below, Brack acknowledges that he/she has personally read this Disposition Agreement, that it is a public document, and that he/she agrees to all of the terms and conditions therein.
