Settlement  In the Matter of Richard Pierce

Date:	04/18/2012
Organization:	State Ethics Commission
Docket Number:	12-0004

Disposition Agreement

The State Ethics Commission (“Commission”) and former Attleboro Police Chief Richard Pierce (“Chief Pierce”) enter into this Disposition Agreement pursuant to Section 5 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 March 18, 2011, 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.  On September 16, 2011, the Commission concluded its inquiry and found reasonable cause to believe that Pierce violated G.L. c. 268A, §§ 19 and 23(b)(2).

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

Findings of Fact

1.   Chief Pierce was a member of the Attleboro Police Department (“APD”) for over 30 years, eight years of which he served as police chief, and retired from the APD in December 2010.  As an APD employee, Chief Pierce was a municipal employee as that term is defined in G.L. c. 268A, § 1.  

2. Chief Pierce’s son, Richard Pierce, Jr. (“Pierce, Jr.”), became an APD patrol officer in 2005.  During Pierce, Jr.’s interview process, Chief Pierce filed a
disclosure with Attleboro Mayor Kevin Dumas (“the Mayor”) stating, “If my son is selected for a position with the [APD], and if assignments and/or disciplinary matters have to be addressed, or any other issues arise that may give the appearance of a conflict of interest, I would consult with and defer the matter to the mayor and be guided by his decision[s].”  According to Chief Pierce, the protocol in such situations was for the Chief to first go to the Personnel Director with a potential issue.  The Personnel Director would advise the Chief as to whether the Mayor needed to be notified, and whether action needed to be taken.  

3. The APD has the following written policies in place regarding use of force and use of Taser weapons:  

        • Officers are permitted to use the level of force on the job that is necessary to protect their safety and the safety of the public.  

        • When officers use a weapon, or cause an injury to another while on the job, they are required to notify their commanding officer promptly, and to complete   
          a detailed Use of Force Report to be submitted through their chain of command.

        • APD Officers who receive Taser training are allowed to use Taser weapons in the field.  

        • If a Taser is used, the officer who uses it is required to contact his shift commander as soon as possible after the Taser is used.  The officer is then required 
          to complete a Taser Use Report, in addition to a Use of Force Report detailing the circumstances requiring the Taser use.   

        • When a Taser Use Report is filled out, it is to be given, along with the Use of Force Report, to the shift commander for review and signature;

        • The shift commander is then required to complete a separate Use of Force Report documenting what occurred.

        • All three reports proceed through the chain of command, and ultimately to the chief.

4.  On July 8, 2010, Chief Pierce, along with the Mayor and the Attleboro City Council President, were each sent a presentment letter by the attorney representing an individual who had been arrested by APD officers on February 26, 2010, for breaking and entering (the “Arrestee”).  The letter alleged that the Arrestee’s civil rights were violated during the February 2010 arrest (the “Arrest”) because he was subjected to excessive force when unknown officer(s) fired a Taser at him and caused other injuries.  The letter named Pierce, Jr. as one of the arresting officers at the scene.  Chief Pierce received the letter on July 12, 2010.  

5.  On July 12, 2010, Chief Pierce contacted each officer named in the presentment letter, including Pierce, Jr., to tell them about the impending civil rights litigation, and that they would most likely be contacted by the City’s insurance carrier.  

6.  Also on July 12, 2010, Chief Pierce compiled all the APD reports regarding the Arrest, and noticed that there had been no Taser Use Report filed in conjunction with the Arrest.  Chief Pierce asked the lieutenant in charge of firearms (the “Firearms Lieutenant”) to look into whether an APD Taser had been used on the night of the Arrest.  

7.  Later on July 12, 2010, the Firearms Lieutenant downloaded the APD 

Taser information for February 26, 2010, and determined that Pierce, Jr. had used a Taser on the date and time in question, and that no Taser Use Report had been filed.  The Firearms Lieutenant questioned Pierce, Jr., who admitted to using a Taser during the Arrest, but stated that he had filled out a Taser Use Report and left it on the report table near another officer, who was completing the arrest paperwork.

8.  Afterward, on July 12, 2010, the Firearms Lieutenant relayed to Chief Pierce that Pierce, Jr. used a Taser on the date of the Arrest, and that a Taser Use Report had not been found.  

9.  On July 12, 2010, Chief Pierce, after being informed of Pierce, Jr.’s Taser use, requested that the Firearms Lieutenant look for the missing reports.  Chief Pierce told the Firearms Lieutenant that if the reports could not be located, that new reports would need to be submitted late, although that would not look good in this particular instance.

10.  On July 14, 2010, at the request of the Firearms Lieutenant, Pierce, Jr. completed a Taser Use Report relating to the Arrest.  Pierce, Jr.’s report indicated that Pierce, Jr. used the Taser on the Arrestee twice on February 26, 2010, during a violent struggle that occurred during the Arrest.  The July 14, 2010 Taser Use Report makes no mention of why it was submitted five months after the Arrest.  According to Chief Pierce, he did not see the July 14, 2010 Taser Use Report until it was put in his APD mailbox on September 28, 2010.

11.  The Firearms Lieutenant did not have Pierce, Jr. complete an accompanying Use of Force Report on July 14, 2010, when Pierce, Jr. completed the Taser Use Report.  

12.  In August 2010, Chief Pierce spoke with the Shift Commander, and asked the Shift Commander if he recalled seeing a Taser Use Report and a Use of Force Report filled out by Pierce, Jr. at or around the time of the February 2010 Arrest.  The Shift Commander said he had not seen these reports, but would look into it.   

13.  The Shift Commander was not given a copy of the July 14, 2010 Taser Use Report that Pierce, Jr. completed at the request of the Firearms Lieutenant.

14.  In August 2010, The Shift Commander, without being requested to do so by Chief Pierce or any other APD superior officer, began his own internal investigation into the matter.

15.  The Shift Commander completed an investigation report (the “Report”), which he gave to an APD Captain (the “Captain”) on September 21, 2010.  The Report concluded that, with regard to the Arrest, Pierce, Jr. violated APD professional standards involving electronic control devices and standards of conduct, and that Pierce, Jr. should be disciplined by the APD.

16.  On the morning of September 27, 2010, the Captain verbally informed Chief Pierce that the Captain had received the Report from the Shift Commander.  The Captain told the Chief that the Captain was preparing a synopsis of the Report, which he would give to the Chief, along with the Report, later that day.

17.  According to Chief Pierce, later that morning, he attempted to contact the Personnel Director, as required by protocol, to seek her advice on the situation, but the Personnel Director was not at work that day.  

18.  On the afternoon of September 27, 2010, the Captain gave Chief Pierce the Report, as well as the Captain’s synopsis.   The Captain told Chief Pierce that this “did not look good.”  

19.  On the evening of September 27, 2010, Chief Pierce went to see Pierce, Jr. at Pierce, Jr.’s home after work, and:  

        • advised Pierce, Jr. of the Report’s findings and the seriousness of the matter;

        • asked Pierce, Jr. about the discrepancy noted in the Report between Pierce, Jr. initially stating that another officer used the Taser on the Arrestee in the 
         ambulance, and later stating that Pierce, Jr. had twice used the Taser on the Arrestee at the scene of the Arrest;

        • gave Pierce, Jr. a copy of the Report and told Pierce, Jr. to contact Pierce, Jr.’s union representative; and  

        • told Pierce, Jr. that he [Chief Pierce] would not be participating in the matter due to conflict of interest issues.

20.   On September 28, 2010, Chief Pierce received, in his APD mailbox, documents related to the Arrest investigation.  Among the documents was a copy of the Taser Use Report that the Firearms Lieutenant had Pierce, Jr. complete on July 14, 2010.  Also included was an undated Use of Force Report signed by Pierce, Jr., stating that Pierce, Jr. used a Taser during the Arrest.  According to Chief Pierce, this was the first time he had seen either of these documents, and he did not know who put the documents in his mailbox.   

21.   Later on September 28, 2010, the Mayor,  having learned from an outside source of the Shift Commander’s investigation, called Chief Pierce, and told the Chief that the Chief was to have nothing further to do with the investigation into his son’s involvement in the Arrest.  The Chief, the Captain, the Personnel Director and the Mayor met in the  Mayor’s office that afternoon, at which time the Chief was directed to turn over any paperwork the Chief had involving the Arrest to the Personnel Director.  Chief Pierce gave the Personnel Director all such documents, including the reports that had been placed in his APD mailbox that day.

22.  As of September 28, 2010, Chief Pierce had made no disclosures to the Mayor regarding the Chief’s involvement as Chief, after receiving the July 8, 2010 presentment letter, in the APD investigation into the Arrest and into whether documentation existed regarding Pierce, Jr.’s alleged use of a Taser during the Arrest.

23.  Although the APD has no written protocol regarding giving investigative reports or inquiries to the subject of an APD investigation, the APD practice is not to give a subject investigative reports before an investigation has been completed.

24.  Ultimately, Pierce, Jr. was terminated as a result of his conduct regarding the Arrest.

25.  Chief Pierce retired in December 2010.

Conclusions of Law

Section 19

26.  Except as otherwise permitted,¹  § 19 of G.L. c. 268A prohibits a municipal employee from participating²  as such an employee in a particular matter³  in which, to his knowledge, he or an immediate family member⁴  has a financial interest.⁵

27.  The particular matter was the APD’s decision, after receiving the presentment letter, to investigate the Arrest and make sure proper procedures had been followed.

28.  Chief Pierce participated in that particular matter as police chief by speaking to all officers involved, having the Firearms Lieutenant download Taser information from the arrest data, asking the Firearms Lieutenant and the Shift Commander to look for missing reports, and allowing new reports to be submitted if the originals could not be located.

29.  As Chief Pierce’s son, Pierce, Jr. is a member of Chief Pierce’s immediate family.

30.  Pierce, Jr. had a financial interest in the investigation because it could result in a decision whether to suspend or terminate him.

31.  Accordingly, by so participating as Chief in a particular matter in which he knew his son had a financial interest, Chief Pierce repeatedly violated § 19.

Section 23(b)(2)

32.  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.

33.  The opportunity for Pierce, Jr. to (1) submit late reports regarding the Arrest, and (2) be given a copy of the Shift Commander’s Report just prior to an official Internal Affairs investigation regarding the Arrest, were each a privilege because each conveyed a benefit to Pierce, Jr.

34.  Chief Pierce used his official position to secure these privileges for Pierce, Jr. by exercising his authority as police chief.

35.  These privileges were unwarranted because they were secured in non-compliance with APD protocol and standard practice.

36.  These privileges were of substantial value because they afforded Pierce, Jr. an opportunity to attempt to prevent his potential suspension or termination.

37.  These privileges were not properly available to similarly situated individuals.

38.  Therefore, by securing these privileges for his son, Chief Pierce twice violated § 23(b)(2)(ii).

Resolution

In view of the foregoing violations of G.L. c. 268A by Chief Pierce, 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 Chief Pierce:

        (1)  that Chief Pierce pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $3,500 as a civil penalty for repeatedly violating G.L. c. 268A, §§ 19 and 23(b)(2)(ii); and

        (2)  that Chief Pierce 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.

¹ None of the exemptions applies.

² “Participate” means to participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.  G.L. c. 268A, § 1(j).

³ “Particular matter” means any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.  G.L. c. 268A, § 1(k).

⁴ “Immediate family” means the employee and his spouse, and their parents, children, brothers and sisters.  G.L. c. 268A, § 1(e).

⁵ “Financial interest” means any economic interest of a particular individual that is not shared with a substantial segment of the population of the municipality.  See Graham v. McGrail, 370 Mass. 133 (1976).  This definition has embraced private interests, no matter how small, which are direct, immediate or reasonably foreseeable.  See EC-COI-84-98.  The interest can be affected in either a positive or negative way.  EC-COI-84-96.