Settlement  In the Matter of Robert Churchill

Date:	03/13/2000
Organization:	State Ethics Commission
Docket Number:	584

Disposition Agreement

This Disposition Agreement ("Agreement") is entered into
between the State Ethics Commission ("Commission") and Robert
Churchill ("Churchill") 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, s.40).

On November 20, 1997, the Commission initiated, pursuant to
G.L. c. 268B, s.4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by
Churchill. The Commission concluded the inquiry and, on April 22,
1999, found reasonable cause to believe that Churchill violated
G.L. c. 268A.

The Commission and Churchill now agree to the following
findings of facts and conclusions of law:

Findings of Fact

1. Churchill is, and was at all times here relevant, a
lieutenant serving with the town of Randolph Police Department
("Police Department"). As such, Churchill is, and was at the times
here relevant, a municipal employee as that term is defined in G.L.
c. 268A, section 1.

2. Churchill has been a Randolph police officer since 1977 and
a lieutenant since 1992.  Churchill's position is full-time and
salaried. Churchill's appointing authority is the Randolph board of
selectmen ("Board of Selectmen") and his supervisor is the Randolph
police chief.

3. In 1996, Churchill supervised the Police Department's
detectives unit and police prosecutors.

4. Randolph police prosecutors handle criminal cases for the
Police Department at the Quincy District Court ("District Court").
Until late 1996, there was one police prosecutor, Detective William
Batson ("Batson"). Batson has been a Randolph police officer since
1977 and a police prosecutor since 1992.

5. In addition to his supervisory responsibilities, Churchill
is an experienced police prosecutor.  Until October 1996, when a
second police prosecutor was hired, Churchill filled in for Batson
as police prosecutor whenever Batson was absent due to illness,
vacation or any other reason.

6. During the late hours of April 17 and/or the early hours of
April 18, 1996, Batson's seventeen-year old son and two
fifteen-year-old juveniles spray-painted graffiti on several
buildings in Randolph.  On one building, a Randolph Highway
Department ("Highway Department") garage, Batson's son
spray-painted racist graffiti in letters large enough to be
readable from an adjoining playground. At the other locations,
including a warehouse at 61 Pleasant Street and a dumpster at
another site, Batson's son spray-painted various other graffiti. In
addition to the graffiti personally done by Batson's son, the two
juveniles with him also spray-painted graffiti at the same
locations.

7. The graffiti done at the Highway Department was reported to
the Police Department by a Highway Department employee on April 18,
1996.  The Police Department investigated and, by April 24, 1996,
Batson's son and the two juveniles were identified by the police as
the graffiti perpetrators.

8. On or about April 24, 1996, Batson's son was interviewed at
the police station by the sergeant heading the investigation.
Before he was questioned, Batson's son was told that he had been
identified as a graffiti perpetrator.  Confronted with this fact,
Batson's son admitted to involvement in the April 17-18, 1996
graffiti, including that he personally spray-painted racist
graffiti on the Highway Department garage.  Thereafter, Batson's son
identified graffiti done by himself and others at several Randolph
locations, including 61 Pleasant Street.

9. Between April 24 and 28, 1996, the sergeant wrote a report
of the investigation of the April 17-18, 1996 graffiti, which
report became part of the Police Department's case folder on
Batson's son's case.  This report specifically described the racist
graffiti Batson's son admitted to spray-painting on the Highway
Department building and identified two other locations where he
spray-painted graffiti which is not described.

10. As a result of the Police Department's investigation,
Batson's son was summonsed to appear at the Quincy District Court
to be arraigned on April 30, 1996.

11. As chief of the detectives unit Churchill was informed of
Batson's son's case while it was under investigation.  Sometime
prior to Batson's son's scheduled arraignment, Churchill read the
police report on the case.  From the report and other sources,
Churchill was aware of the acts of graffiti committed by Batson's
son, including the racist graffiti, prior to the scheduled
arraignment.

12. On or before April 30, 1996, Churchill completed
and signed as complainant an "Application for Complaint"
form charging Batson's son with two violations of G.L. c. 266,
s. 126B ("tagging property")^[1]  This would have normally been
done by Batson as the police prosecutor.  Given, however, that
Batson could not prosecute his son's case, Churchill took over the
duties of police prosecutor on the case.  On the complaint application
form, Churchill identified the "Town of Randolph" and "Russo Products"
as victims and stated that each had suffered property damage over
$250.  At the time, Russo Products was a tenant at 61 Pleasant Street.

13. Batson accompanied his son to the District Court on April
30,1996.  Sometime prior to the scheduled arraignment, Batson and
Churchill discussed Batson's son's case and Churchill agreed to
resolve the case with diversion and dismissal under G.L. c. 276A,
and court costs in the amount of ten days of community service.  In
agreeing to this disposition of the case, Churchill exercised the
power to settle criminal cases of the police prosecutor, in which
capacity he was then acting.  The diversion and dismissal resolution
was a lenient and desirable resolution of the case for Batson's son
because it would leave him without a criminal record and would not
require him to admit to having done the graffiti or to pay
restitution.^[2]

14. During the morning of April 30, 1996, Churchill and
Batson's son, accompanied by Batson, appeared before an assistant
clerk-magistrate in the arraignment session.  Churchill told the
assistant clerk-magistrate that the case was being diverted and
dismissed.  The assistant clerk-magistrate entered the agreed-to
resolution, and the matter was referred to the Probation Office.
Due to the diversion and dismissal, Batson's son was not arraigned.
Based upon his experience, Churchill knew going into the
arraignment session that in diversion cases an assistant
clerk-magistrate generally enters the disposition agreed to between
the police prosecutor and the defendant.

15. Churchill did not disclose to his appointing authority,
the Board of Selectmen, that he was going to act as police
prosecutor in a matter involving the son of a police officer with
whom he had worked for nearly twenty years, nor did Churchill
disclose to his appointing authority the terms on which he would
resolve the case.  Churchill also made no disclosure concerning this
matter to his own supervisor, the police chief.

16. On or about May 2, 1996, the Norfolk County District
Attorney ("District Attorney') first learned of the diversion and
dismissal of Batson's son's case.  Perceiving possible conflicts of
interest in the handling of the case, and sensitive to the District
Attorney's office's close working relationship with the Police
Department, the District Attorney referred the matter to the
Attorney General on May 3, 1996.

17. On June 6,1996, the Attorney General moved to vacate the
April 30,1996 diversion and dismissal.  The District Court
subsequently vacated the diversion and dismissal, and a new summons
issued against Batson's son.  On October 16, 1996, Batson's son
admitted in District Court to sufficient facts for a finding of
guilty and the matter was continued without a finding for one year,
with eighty hours (ten days) of community service (deemed served),
$50 in court costs, letters of apology to the victims and $1,633 in
restitution to the owner of 61 Pleasant Street.

Conclusions of Law

18. General Laws chapter 268A, s.23(b)(3) prohibits a
municipal employee from, knowingly or with reason to know, acting
in a manner which would cause a reasonable person, having knowledge
of the relevant circumstances, to conclude that any person can
improperly influence him or unduly enjoy his favor in the
performance of his official duties, or that he is likely to act or
fail to act as a result of kinship, rank, position or undue
influence of any party or person.  Section 23(b)(3) further provides
"[i]t shall be unreasonable to so conclude if such officer or
employee has disclosed in writing to his appointing authority or,
if no appointing authority exists, discloses in a manner which is
public in nature, the facts which would otherwise lead to such a
conclusion."

19. By acting as a police prosecutor in resolving a criminal
charge against a fellow police officer's son, Churchill, knowingly
or with reason to know, acted in a manner which would cause a
reasonable person, having knowledge of all the relevant
circumstances, to conclude that Batson and Batson's son could
unduly enjoy Churchill's favor in the performance of his official
duties.  In so acting, Churchill violated G.L. c. 268A, s.23(b)(3).
This appearance problem was exacerbated by the facts that Churchill
had served with Batson as fellow officers for nearly twenty years
and that the diversion and dismissal with community service but no
restitution was the most lenient resolution possible short of an
outright dismissal.^[3]

Resolution

In view of the foregoing violation of G.L. c. 268A by
Churchill, 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 Churchill:

(1) that Churchill pay the Commission the sum of five hundred
dollars ($500.00) as a civil penalty for violating G.L. c.
268A, s.23(b)(3); and

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

[1] "Tagging" is the criminal act of placing graffiti on
public or private property in violation of G.L. c. 266, s. 126B.

[2] Graffiti "taggers" are normally required to make their
victims whole through restitution which entails either repairing
the damaged property or paying for its repair. According to
Churchill, he decided not to seek restitution as to the damage to
town property because the town would benefit from the community
service. Also, according to Churchill, he decided not to seek
restitution regarding the privately owned building at 61 Pleasant
Street because he understood that the graffiti in question had been
painted on the rear wall of the building (which building he knew
was located in an industrial area with the rear wall next to
railroad tracks), and he knew the wall already had a considerable
amount of graffiti on it, and that Batson's son had done only a
small portion of this new graffiti. Consequently, according to
Churchill, he did not believe that Batson's son should be required
to pay restitution.

[3] Churchill could have avoided violating s.23(b)(3) by
making a written disclosure of the relevant facts to his appointing
authority (the selectmen) before participating in Batson's son's
case. Had Churchill made such a timely disclosure, the selectmen
would then have had the opportunity to decide whether they wanted
Churchill to handle the case or to refer the matter to the District
Attorney or the Attorney General.