Massachusetts State Ethics Commission Dismisses Case Against Former Executive Office of Public Safety
Assistant Secretary Michael O’Toole Based on Statute of Limitations
The Massachusetts State Ethics Commission issued a Decision and Order on September 17, 2008, dismissing its case alleging violations of the conflict of interest law, G.L. c. 268A, by former Executive Office of Public Safety (“EOPS”) Assistant Secretary Michael J. O’Toole. The Decision and Order was based on the Enforcement Division’s failure to file its Order to Show Cause (“OTSC”) within the three year statute of limitations period set forth in the Commission’s regulations. In dismissing the case, the Commission did not make any determination as to whether O’Toole violated the conflict of interest law, but, rather, based its Decision and Order solely on procedural requirements.
The Commission’s Enforcement Division filed an OTSC on January 19, 2007, alleging that O’Toole repeatedly violated Section 6 of the conflict of interest law by approving payments to municipal police departments that were clients of Crest Associates, Inc. (“Crest”) at a time when O’Toole was negotiating and/or had an agreement for employment with Crest. The OTSC also alleged that O’Toole violated Section 5(a) by, as a Crest employee, writing a quarterly financial report for a police department that had received an EOPS grant that O’Toole approved while at EOPS. The Enforcement Division did not learn about O’Toole’s alleged conduct until about January 26, 2004, less than three years before the OTSC was issued. On October 18, 2007, O’Toole filed a motion for summary decision to dismiss all claims made by the Enforcement Division.
The Commission’s regulation at 930 CMR 1.02(10) establishes a time limit in which the Enforcement Division may initiate an action based on the conflict of interest law. It provides, “An order to show cause must be issued within three (3) years after a disinterested person learned of the violation.” In its Decision and Order, the Commission found that, as a result of extensive media coverage, the relevant events were a matter of general knowledge in the community more than three years before the OTSC was issued. The Commission further found that such media coverage should have triggered a duty to inquire on the part of the Enforcement Division, and, therefore, the Enforcement Division knew or should have known of the relevant events more than three years before the OTSC was issued. Accordingly, the OTSC was not timely issued, and the case was dismissed.
According to the Decision and Order, O’Toole offered copies of more than twenty news stories that appeared between October 30, 2003 and January 20, 2004 as proof that his conduct allegedly in violation of G. L. c. 268A was a matter of “general knowledge in the community” more than three years before the OTSC was issued. Although none of the news stories focused specifically on O’Toole, they identified him by name, described his former work for EOPS and his current work for Crest, and placed him in the middle of a controversy and investigation concerning the awarding of public safety grants by EOPS to Crest’s clients prior to and after his service as EOPS grants director. The Decision and Order states that the news articles, “contained sufficient relevant information about Respondent’s conduct which is the subject of the [OTSC], and were widely and prominently enough published to have made ‘the relevant events’ concerning Respondent’s alleged violations ‘a matter of general knowledge in the community’ within the meaning of 930 CMR 1.02 (10)(d), in late December 2003 and early January 2004, more than three years before the [OTSC] issued.” Furthermore, although the Enforcement Division did not actually read the media reports until late January 2004, the Commission stated that these reports were available to the Enforcement Division beforehand, and should have caused the Enforcement Division to make inquiries concerning potential violations by O’Toole.
“This case makes clear that there is a duty of inquiry for the Enforcement Division to look into matters that receive extensive media coverage if those matters might suggest violations of the conflict of interest law,” said Executive Director Karen L. Nober. “Since the Order to Show Cause was filed more than three years after the Enforcement Division should have learned of potential violations, the Commission dismissed the case against Mr. O’Toole on procedural grounds.”
This is not the first time this has happened- there was a similar email a couple of months ago that likewise invoked the statute of limitations as the reason for a dismissal of a case. Hence the point of my post: are the ethics commission’s enforcement divisions and investigation units sufficiently staffed to do its job properly?
Probably.