Settlement  In the Matter of Susan Bailey

Date:	02/23/2010
Organization:	State Ethics Commission
Docket Number:	10-0005

Disposition Agreement

The State Ethics Commission and Susan Bailey ("Bailey") 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 September 18, 2009, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into alleged violations by Bailey of G.L. c. 268A, the conflict of interest law. The Commission has concluded its inquiry and, on February 19, 2010, found reasonable cause to believe that Bailey violated G.L. c. 268A.

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

Findings of Fact

• Bailey was appointed Palmer Public Schools ("PPS") Director of Food Services in September 2005, and is still employed in that capacity.
   
• As Director of Food Services, Bailey's duties include ordering the PPS's food from various vendors.
   
• ConAgra Foods, Inc. ("ConAgra") is a packaged-food business and has been a PPS vendor since 2003.
   
• Since at least 2006, ConAgra has offered promotions through which its customers could obtain various prizes based on the type and quantity of food purchased.
   
• To receive the prizes, customers were required to complete a form indicating (a) the type and quantity of food previously purchased or to be purchased, and (b) the prizes desired.
   
• On or about November 15, 2006, Bailey, in her capacity as Food Service Director, completed, signed and submitted two forms to ConAgra on which she noted the type and quantity of PPS food previously purchased from ConAgra and her selection of three iPod Nanos ("iPods") to be received from the company as a result of the purchases.
   
• In early 2007, Bailey received the three iPods from ConAgra at her PPS office.
   
• The three iPods were the property of the PPS. Bailey, however, did not turn over the iPods to the PPS. Instead, she kept them for her personal purposes.
   
• On or about April 3, 2007, Bailey, in her capacity as Food Service Director, completed, signed and submitted one additional form to ConAgra on which she noted the type and quantity of PPS food previously purchased from ConAgra and her selection of three iPods to be received from the company as a result of the purchases.
   
• Shortly thereafter, Bailey received these three additional iPods from ConAgra at her PPS office.
   
• These three additional iPods were the property of the PPS. Bailey, however, did not turn over these iPods to the PPS. Instead, she kept them for her personal purposes.
   
• Each of the six iPods described above had a retail value of at least $150 in 2006-2007, for a total value of at least $900.

Conclusions of Law

• As Palmer School Department Director of Food Services, Bailey is a municipal employee as defined in c. 268A, § 1(g).

Section 23(b)(2)

• Section 23(b)(2) prohibits a public 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 of substantial value not properly available to similarly situated individuals. [1]
   
• The takings by Bailey of the iPods for her personal purposes were privileges.
   
• The privileges were unwarranted because the iPods were awarded by ConAgra to the PPS pursuant to school department food orders and, therefore, the iPods did not belong to Bailey.
   
• The unwarranted privileges were not properly available to similarly situated individuals.
   
• The privileges were of substantial value as evidenced by the fact that the value of each iPod during the relevant time period was at least $150.
   
• Bailey used her official position to obtain these unwarranted privileges by, as PPS Director of Food Services, signing and submitting the promotional forms as the PPS Food Service Director.
   
• Therefore, Bailey violated § 23(b)(2).

Resolution

In view of the aforementioned violations of G.L. c. 268A by Susan Bailey, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, based on the following terms and conditions agreed to by Susan Bailey:

• that Susan Bailey pay to the Commission the sum of $2,000 as a civil penalty for violating G.L. c. 268A, § 23(b)(2);
• that Susan Bailey pay to the Palmer Public Schools the sum of $900 as payment for the six iPods; and,
• that Susan Bailey 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 the terms and conditions contained in this Agreement.

[1] G.L.c. 268A was amended by c. 28 of the Acts of 2009. The language of § 23(b)(2) now appears in § 23(b)(2)(i) of G.L. c. 268A, as amended.