| Date: | 10/24/2018 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 18-0001 |
- This page, In the Matter of Harold MacGilvray- Disposition Agreement, is offered by
- State Ethics Commission
Settlement
Settlement In the Matter of Harold MacGilvray- Disposition Agreement
Table of Contents
Disposition Agreement
The State Ethics Commission (“Commission”) and Harold MacGilvray (“MacGilvray”) 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 February 16, 2017, 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 MacGilvray. On September 21, 2017, the Commission concluded its inquiry and found reasonable cause to believe that MacGilvray violated G.L. c. 268A, § 23.
The Commission and MacGilvray now agree to the following findings of fact and conclusions of law:
Findings of Fact
1. MacGilvray is a paid patrol officer for the Medford Police Department (“MPD”).
2. MacGilvray was a MPD patrol officer on October 29, 2016.
3. In 2016, MacGilvray was president of the Medford Police Patrolmen’s Association (“MPPA”).
4. On October 29, 2016, MacGilvray was on paid duty and patrolled in uniform as a MPD Patrol Officer at two community events in Medford.
5. While on duty and in uniform at the first community event, MacGilvray posed for a photograph with an individual costumed as Hillary Clinton and another MPD officer, also in uniform (“Photograph 1”). The costumed individual wore a Hillary Clinton mask, a prison style orange jumpsuit with the word “inmate” printed on its front, and wrist shackles. MacGilvray and the other MPD officer posed on either side of the costumed individual holding her arms as though they were restraining a prisoner.
6. While on duty, MacGilvray personally posted Photograph 1 to the MPPA Facebook page with the caption, “Look who MPD grabbed at the Fall Festival in Haines Square Today….” (“Caption 1”).
7. While on duty and in uniform at a second community event the same day, MacGilvray posed for a photograph with an individual costumed as Donald Trump and two other MPD officers, also in uniform (Photograph 2). The costumed individual wore a Donald Trump mask and a business suit. MacGilvray posed side- by-side with the costumed individual who had one arm over MacGilvray’s shoulder and his other arm over the shoulder of another MPD officer who stood on his opposite side. MacGilvray and the other MPD officer each had an arm around the costumed individual’s back. The third MPD officer stood next to MacGilvray.
8. While on duty, MacGilvray asked another MPD officer to post Photograph 2 to the MPPA Facebook page.
9. MacGilvray authored the caption that accompanied the second posted photograph, “Making America GREAT again in West Medford Square!!” (“Caption 2”).
10. MacGilvray caused Caption 2 to be posted to Photograph 2 on the MPPA Facebook page.
11. On October 29, 2016, Hillary Clinton and Donald Trump were candidates for President of the United States. The U.S. presidential election was to be held on November 8, 2016.
12. In October 2016, “Make America Great Again” was a Trump campaign slogan. In 2016, “Lock her up!”, referring to Hillary Clinton, was often chanted at Trump campaign rallies.
13. Soon after MacGilvray posted or caused them to be posted to the MPPA Facebook page, Photograph 1, Photograph 2, Caption 1 and Caption 2 gained attention from local and national news media outlets, including The Boston Globe, The Boston Herald and Fox25, and were widely circulated via social media.
14. MacGilvray removed the photographs from the MPPA Facebook page the same day they were posted in response to the controversy they created as shown by comments posted on the MPPA Facebook page.
15. MPD Rules and Regulations prohibit MPD officers from participating in political activity other than voting in elections.
Conclusions of Law
16. 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.
17. As a Patrol Officer for the Medford Police Department, MacGilvray is and was in October 2016 a municipal employee as defined in G.L. c. 268A, § 1.
18. The official uniform and on-duty work time of a municipal police officer are substantially valuable public resources and their use for private political purposes is not authorized by law and is unwarranted.
19. The MPD uniform is a public resource of the City of Medford. The use of this public resource to engage in private political activity, including but not limited to activity relating to a campaign for election to public office, is an unwarranted privilege that is not properly available to police officers or political candidates or any similarly situated individuals.
20. The unwarranted privilege of using a police uniform to engage in private political activity is of substantial value because, given the authority that the police command as armed enforcers of the law, the use of a uniform in political activity gives the impression of official and public support, which would carry significant weight with voters, possibly intimidate supporters of an opposing candidate, and erode the public trust in its police force. The use of paid on-duty work time is also a privilege of substantial value and its use for private political purposes is unwarranted.
21. Causing the publication of photographic images demonstrating support for one political candidate over another, even if such publication is done in an attempt to amuse others, is private political activity. Taking such actions while on duty and in uniform as a police officer is the use of official position to engage in private political activity and an unwarranted privilege of substantial value that is not properly available to similarly situated individuals.
22. Thus, by causing the public posting and dissemination of two photographs of himself and other MPD officers in uniform with images and captions implying MPD disapproval of presidential candidate Hillary Clinton and approval of presidential candidate Donald Trump, MacGilvray knowingly or with reason to know used his Medford Police Officer position to secure for himself and others an unwarranted privilege of substantial value not properly available to other similarly situated individuals, in violation of § 23(b)(2)(ii).
Additional Circumstances Considered in the Resolution of this Matter
23. MacGilvray, testified that he had no prior knowledge that either costumed individual would attend the events he patrolled and was not involved in arranging their appearance at the community events. The investigation by the Commission revealed no evidence to the contrary.
24. MacGilvray testified that he did not request that the costumed individuals pose for pictures with him and other officers and did not request that he be given copies of those photographs. The investigation by the Commission revealed no evidence to the contrary.
25. MacGilvray testified that the amount of time he took to post or cause the posting of the photos was limited to one half hour or less. The investigation by the Commission revealed no evidence to the contrary.
26. MacGilvray received an official letter of reprimand for violating the MPD’s prohibitions against political activity, among other violations. He was required to post a formal letter of apology to the public on the website of the MPPA, which was posted for three days.
27. MacGilvray cooperated fully with the Commission’s investigation.
28. The Police Chief for the City of Medford has advised the Commission that MacGilvray has served the City of Medford with distinction over the course of his career.
In view of the foregoing violations of G.L. c. 268A by MacGilvray, 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 MacGilvray:
- that MacGilvray pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $1,500 as a civil penalty for violating G.L. c. 268A, § 23(b)(2); and
- that MacGilvray 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, MacGilvray acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to the terms and conditions therein.