Settlement  In the Matter of Peter Y. Flynn

Date:	09/20/1991
Organization:	State Ethics Commission
Docket Number:	422

Disposition Agreement

This Disposition Agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Sheriff Peter Y. Flynn (Sheriff Flynn) pursuant to section 5 of the Commission’s Enforcement Procedures. This Agreement constitutes a consented to final Commission order enforceable in the Superior Court pursuant to G.L. c. 268B, §4(j).

On February 28, 1990, 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 Sheriff Flynn.  The Commission has concluded that inquiry and, on May 13, 1991, found reasonable cause to believe that Sheriff Flynn violated G.L. c. 268A, §§3 and 23.

The Commission and Sheriff Flynn now agree to the following facts and conclusions of law:

1. At all times material herein, Sheriff Flynn has been sheriff of Plymouth County.[1] As such, he is a county employee within the meaning of G.L. c. 268A, §1.

2. As sheriff he is responsible for, among other matters, the service in Plymouth County of civil process directed to the Office of the Sheriff.  The service of civil process may be carried out by deputy sheriffs, and he appoints all deputy sheriffs who are authorized to serve civil process in Plymouth County.  Such deputies serve at his pleasure.

3. Civil process in Plymouth County (as served by deputy sheriffs) has been administered since 1984 through Deputies, Inc., a for-profit corporation.  Deputies, Inc. is located at 20 Cottage Street, Brockton, MA.  It provides office support services for the approximately 20 deputies who serve civil process in Plymouth County.  It employs several clerical workers.

4. Deputies, Inc. was incorporated in 1984 with William Renny as its president and sole shareholder.  Shortly before then, Sheriff Flynn appointed Renny as his chief deputy for civil process.  As such, Renny was responsible for supervising the deputies appointed by Sheriff Flynn to serve civil process.  (Prior to 1984, civil process had been administered through a different for­ profit corporation managed by a different chief deputy.)

5. Each deputy who serves civil process obtains the papers to be served at the Deputies, Inc. office.  After the deputy serves the papers, Deputies, Inc. collects the fee (as authorized by G.L. c. 262, §8 for the type of process in question) from the party who has asked that the process be served.  Deputies, Inc. keeps a certain percentage of each fee (approximately 50%) for its support services.  The remainder is remitted to the deputy who served the papers.

6. For several years after Sheriff Flynn became sheriff, he incurred expenses in promoting the various civil process serving deputies’ interests.  These included expenses incurred in attending conventions (for example, the Massachusetts Sheriffs’ Association and Massachusetts Deputy Sheriffs’ Association conventions), promoting or opposing legislation which affects the deputies who serve process (for example, bills that would affect the statutory fees), and meeting with local attorneys and other people to encourage them to use the deputy sheriffs for their civil process purposes.  Typically, these expenses involved paying for meals and/or drinks.

7.  In or about April 1985, Deputies, Inc. gave Sheriff Flynn an American Express card opened on the account of Deputies, Inc. (hereinafter the Deputies, Inc. credit card or credit card).  According to Renny, it was his idea to give Sheriff Flynn the credit card.  Sheriff Flynn understood that the credit card was to be used for “business-related purposes.”  According to Sheriff Flynn and Renny, “business-related purposes” meant anything which could be said to promote Deputies, Inc.’s interests.  That could include expenses directly related to Deputies, Inc., such as a meal incurred in meeting with legislators and/or their staff to discuss legislation of interest to Deputies, Inc., or any expense incurred in an activity intended to promote the interests of the Plymouth County Sheriff’s Department generally.  Prior to using the card for the first time, Sheriff Flynn inquired of counsel for Deputies, Inc., George Fairbanks, whether the anticipated use of the card was legal.  The answer was “yes.”

8.  Between September 1985 and April 1989, when he stopped using the card, Sheriff Flynn used the Deputies, Inc. card on 275 occasions for a total of $12,761.43 in charges.[2]  Sheriff Flynn has asserted that he never intentionally used the credit card except for a business purpose as defined above.  Thirteen charges, totaling $1,069.14, were business expenses[3] (based on satisfactory evidence that the expense was incurred on a business trip and a specific recollection provided by Sheriff Flynn and corroborated by a third party or documentary evidence).  In the Commission’s view, however, Sheriff Flynn’s business purpose characterization for certain meals was erroneous.  Thus four charges, totaling $461.69, were personal charges.[4]

As to 10 charges totaling $787.44, Sheriff Flynn states that he recalls the specifics of these charges, but invoking his rights against self-incrimination under Article 12 of the State Constitution, and asserting certain concerns about protecting the privacy of third parties, he has refused to identify any of the third parties who were present on those occasions.  (Two of these 10 charges were incurred on out-of-state trips which Sheriff Flynn acknowledges were essentially personal trips, although he has identified on each of these two occasions a business­ related activity which involved a charge on the card.)

According to Sheriff Flynn, as to nine other charges, totaling $375.74, he has no recollection.  Sheriff Flynn has also acknowledged that six of these nine charges, totaling $184.34, were incurred on out-of-state trips which were personal in nature.

As to the remaining 235 charges, totaling $10,067.42, Sheriff Flynn states he has many recollections of entertaining various people for business purposes which would have resulted in those charges, but he cannot connect specific entertainment occasions with specific charges.[5]

9. Neither Sheriff Flynn nor Deputies, Inc. kept any contemporaneous records reflecting what any of these Deputies, Inc. charges were for. Renny did not question Sheriff Flynn regarding any of these charges.

10. The Commission has obtained Sheriff Flynn’s personal charge card records and county records pertaining to his requests for reimbursement.  The former category of records confirms Sheriff Flynn’s assertion that the trips that he took that were predominantly personal were paid for personally.  The latter category reveals no instances of “double dipping,” i.e., occasions where the Sheriff sought reimbursement from the county for expenses incurred on the Deputies, Inc. card.

11. Section 23(b)(2) prohibits a county employee from using or attempting to use his official position to obtain an unwarranted privilege of substantial value not otherwise available to similarly situated people.

12. As detailed in ¶ 8 above, Sheriff Flynn’s use of the card to make $461.69 in personal charges over a four year period involved substantial value.[6] In the absence of the card, Sheriff Flynn would have had to pay for these expenses out of his own pocket. In addition, the Commission, based on Sheriff Flynn’s refusing to identify the third parties who were present on those 10 occasions (referenced above in ¶ 8) where Sheriff Flynn has specific business recollections, concludes that these 10 charges were personal in nature.[7]   As indicated above, these charges amounted to $787.44. Therefore, the personal charges over the four period totaled $1,249.13 ($461.69 and $787.44).

13. Sheriff Flynn would not have received the Deputies, Inc. card if he were not the sheriff of Plymouth County.  Therefore, he used his position as sheriff to receive the substantial value as described above.

14. Sheriff Flynn’s use of the card for $1,249.13 in personal charges without making timely reimbursements involved an unwarranted privilege.

15. Therefore, by using the Deputies, Inc. credit card for personal charges without making timely reimbursements, Sheriff Flynn used his official position to secure an unwarranted privilege of substantial value, thereby violating §23(b)(2).

16. Section 23(b)(3) prohibits a county employee from causing a reasonable person knowing all of the facts to conclude that anyone can unduly enjoy his favor in the performance of his official duties.

17. By using the Deputies, Inc. credit card for not only personal charges in the amount of $1,249.13, but also for “business-related expenses” during the relevant period in the amount of $11,512.30 for which he kept no records, and for which, for the most part, he can give no accounting, and by doing all of this while the person responsible for monitoring his use was his direct subordinate, Sheriff Flynn would cause a reasonable person knowing all of the facts to conclude that either Renny and/or his deputies could unduly enjoy his favor in the performance of his official duties, thereby violating §23(b)(3).[8]

18. Section 3(b) of G.L. c. 268A, in pertinent part, prohibits a state employee from, otherwise than as provided by law for the proper discharge of official duty, accepting anything of substantial value for himself for or because of any official act or act within his official responsibility performed or to be performed by him.

19. The Deputies, Inc. credit card was of substantial value to Sheriff Flynn because it was used, during the relevant period to pay for $12,761.43 in Sheriff Flynn’s expenses, most of which would not have been reimbursable as a Sheriff’s expense (pursuant to G.L. c. 37. §21).[9]

20. Sheriff Flynn’s meetings with legislators and/or their staff members, and his various actions as sheriff in attempting to promote Deputies, Inc.’s interests, involved acts within his official responsibility.

21. By accepting and using the Deputies, Inc. credit card for “business-related expenses,” Sheriff Flynn accepted an item of substantial value for or because of official acts performed or to be performed, and not otherwise authorized by law, thereby violating §3 as applied in In the Matter of Clifford Marshall, 1991 SEC 508 where the Commission reached the same conclusion regarding Norfolk County Sheriff  Marshall’s use of a credit card given to him by the unincorporated association of deputies who serve civil process in Norfolk County.

22. The Commission is not aware of any evidence that Sheriff Flynn knew he was violating §3 by the conduct just-described.[10]  Indeed, by way of defense Sheriff Flynn notes his reliance on Deputies, Inc.’s attorney’s advice that the use of the credit card was proper, and that the Commission did not apply §3 to this kind of fact pattern until after he had stopped using the card.

Reliance on a private attorney’s advice is not a defense to a G.L. c. 268A violation.[11]  In addition, Sheriff Flynn’s discontinuing his use of the card before the Commission applied §3 to this type of fact pattern is not a defense. See Marshall, i.d.

Based on the foregoing facts, 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 agreed to by Sheriff Flynn:

     (1)  that he pay to the Commission the amount of $2,000 as a civil penalty for his violations of G.L. c. 268A, §23 involving his use of the Deputies, Inc. credit card for charges which the Commission found to be personal[12]

     (2) that he reimburse Deputies, Inc. $1,249.13  forthwith for these charges; and

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

[1] Sheriff Flynn was first elected sheriff in 1980. He has served continuously as sheriff since then, having been reelected in 1986.

[2] Due to the Commission’s statute of limitations, the Commission has not considered charges which predate this agreement by more than 6 years. In addition, the Commission does not have jurisdiction to consider violations of G.L. c. 268A, §§23(b)(2) or (3) which occurred before April 8, 1986. See St. 1986, c. 12. The breakdown of the 275 charges set forth in the remainder of ¶ 8 does not include any charge which occurred prior to April 8, 1986. This is because the breakdown is intended to be a part of the factual basis for the §23 analysis, infra.

[3] As defined by Sheriff Flynn and Renny.

[4] These involved dinners at restaurants attended by Sheriff Flynn and his spouse on June 20, 1987 ($63.17) and September 26, 1987 ($163.50); an $8.50 charge by Sheriff Flynn on January 9, 1989 at Logan Airport when he was leaving on vacation; and a $226.53 dinner at a restaurant on March 26, 1988 attended by Sheriff Flynn, his spouse and two other couples. Sheriff Flynn asserts that each of these charges was incurred in connection with Deputies, Inc.’s business, but concedes that the Commission could find these expenses to be predominantly personal.

[5] Sheriff Flynn contends that if asked in a timely fashion to describe the business nature of any of the charges, he could have done so, but it is impossible to do so now.

[6] Anything with a value of $50.00 or more is of substantial value. See, Commonwealth vs. Famigletti, 4 Mass. App. 584 (1976).

[7] As indicated above, two of these charges were incurred on out-of-state trips which Sheriff Flynn acknowledges were personal in nature. The personal nature of the trips supports the conclusion, at least as to those two charges, that these were personal charges.

[8] This appearance problem is underscored by the fact that two of the “business” charges were incurred on out­ of-state personal trips, and Sheriff Flynn has no recollection as to nine charges totaling $375.74 (where six of those were incurred on out-of-state personal trips.)

[9] Section 21 of G.L. c. 37, as it applies to the sheriff of Plymouth County, provides that the sheriff is entitled to receive from the county his actual traveling expenses incurred in the performance of his official duties.

[10] Ignorance of the law is not a defense to a violation of the conflict of interest law, G. L. c. 268A.    In the Matter of C. Joseph Doyle, 1980 SEC 11, 13, See also, Scola v. Scola, Mass 1, 7 (1945).

[11] Reliance on legal advice will only be a defense for a county official if that advice comes from the Ethics Commission.

[12] The Commission does not deem it appropriate to impose a separate penalty for Sheriff Flynn’s use of the Deputies, Inc. credit card for business-related purposes.