Heard: March 12, 2019.
Civil
action commenced in the Superior Court Department on February
3, 2016. The case was heard by Karen Goodwin, J., on motions
for judgment on the pleadings.
Vincent A. Bongiorni (Thomas A. Kenefick, III, also present)
for the plaintiff.
Norah
K. Mallam (Eve Slattery, Special Assistant Attorney General,
also present) for the defendant.
Present: Desmond, Sacks, & Lemire, JJ.
DESMOND, J.
After
an adjudicatory hearing, the State Ethics Commission
(commission) determined that Edward McGovern, an Agawam
police lieutenant and public employee, had violated the State
conflict of interest law, G. L. c. 268A, in his disposition
of a one-car accident involving a fellow Agawam police
officer who was off duty at the time. In brief outline, on
the evidence before it, the commission found that McGovern
had knowingly used his official position to give Danielle
Petrangelo an "unwarranted privilege[]" or
"exemption[]" of "substantial value," G.
L. c. 268A, § 23 (b) (2) (ii), by his failure to arrest
or to cite her for any motor vehicle offense, and by his
failure to conduct a meaningful investigation, despite having
probable cause to believe that Petrangelo operated her motor
vehicle the wrong way on Route 5 in Agawam, i.e., driving
southbound in a northbound lane, while intoxicated. It was
only a fortuity that other motorists escaped harm, by
maneuvering their vehicles to the far right northbound lane
so as to avoid Petrangelo's sport utility vehicle (SUV),
which then was at a stop in the northbound passing lane, with
the key still in the SUV's ignition and the engine
running, but facing southbound. Responding police officers
found Petrangelo sitting on a guardrail, next to her SUV,
distraught. McGovern, the senior ranking officer, asked but
few questions of the responding officers who had first come
on the scene, before he commanded one officer under his
supervision to drive Petrangelo home in a cruiser. At least
as of 2012, the Agawam Police Department (department) had
established a clearly articulated policy that prohibited its
officers from affording "preferential treatment" to
anyone in motor vehicle traffic enforcement cases. As to
motor vehicle accidents involving intoxicating liquor, the
department policy required that officers "shall take
appropriate enforcement action" when the officer
"determines that the operator is under the influence of
alcohol."
McGovern
filed a G. L. c. 30A complaint in Superior Court, seeking
judicial review of the commission decision. A judge upheld
that decision, ruling that it was supported by substantial
evidence in the administrative record and free of error or
procedural impropriety. Seeking further review in this court,
McGovern now asks us to set aside the commission's
decision, citing alleged substantive and procedural errors.
We affirm.
Background.
1.
Facts.
We
briefly summarize the facts found by the commission. On the
evening of June 29, 2012, at about 9:15 P.M., the West
Springfield Police Department received an anonymous 911 call
reporting a wrong-way driver on Route 5 North. This
information was transmitted over the Western Massachusetts
law enforcement communications radio system. McGovern heard
the report of a wrong-way driver. West Springfield Police
Officer Eric Johnson and Agawam Police Officers William
Pierson and James Wheeler were all dispatched to find the
wrong-way driver. Within minutes, Officer Johnson located a
tan SUV on Route 5 North in Agawam. Officer Johnson brought
his cruiser to a halt, "nose to nose" with the
front end of the tan SUV, which was stopped in the northbound
passing lane of Route 5. Officer Johnson saw Petrangelo
sitting on the guardrail next to the passenger side of the
SUV. Petrangelo was crying. Officer Johnson knew Petrangelo
because both had gone to the same high school, and he knew
that she was an Agawam police officer. Soon after, Officer
Pierson arrived at the accident scene, as did Officer
Wheeler, who came on the scene several minutes later. The
SUV's engine was still running when Officer Pierson
arrived. Wheeler and Pierson noticed damage on the passenger
side of the SUV consistent with it striking a guardrail.
Pierson, Wheeler, and Petrangelo were all coworkers at the
department. Pierson, who was a close friend of Petrangelo,
knew that Petrangelo had been placed on administrative leave
from the department pending an internal investigation into an
incident in which Petrangelo shot an unarmed woman in the
face at the scene of a domestic dispute. Officers Johnson,
Pierson, and Wheeler were uncomfortable handling this one-car
accident because of their relationship with Petrangelo.
Officer Pierson, believing that he had a conflict of
interest, contacted his supervisor, Sergeant Anthony Grasso,
for assistance.[1] Sergeant Grasso, who was then handling
a different matter, called McGovern and told him that
Petrangelo was involved in the Route 5 incident and that the
officers at the scene needed assistance from a
superior.[2] McGovern agreed to go to the scene.
To make
Route 5 North safe for other motorists, Officers Wheeler and
Pierson moved the three police cruisers to the side of the
road, and Wheeler then moved the SUV to an access road
directly off Route 5. (The only way to enter or to exit this
access road was from Route 5.) McGovern arrived at the scene
shortly after the vehicles were moved. As the highest ranking
officer present, McGovern became the officer-in-charge of the
accident scene.[3] McGovern, who had known Petrangelo
since 2000 when she became a member of the department,
recognized Petrangelo's SUV. He noticed that she was then
sitting in the front seat of Officer Pierson's cruiser.
McGovern also noticed that, apart from the police cruisers on
scene, Petrangelo's SUV was the only motor vehicle
present. McGovern spoke to Petrangelo. He asked her how she
had arrived there, where she had been, and who she had been
with; she in turn stated that she had been in Springfield
with a friend but "didn't know" how she had
gotten there. When McGovern asked if the friend had been
driving, Petrangelo's demeanor changed, her tone became
serious, and she stated, "[Y]ou're here to hurt
me."[4] McGovern believed that Petrangelo was
intoxicated.
After
he had finished speaking with Petrangelo, McGovern spoke with
the other officers. By then, Sergeant Grasso had arrived at
the scene.[5] McGovern asked Officer Johnson whether
"he had any charges in his city." Johnson confirmed
there were none. McGovern asked all three officers (Johnson,
Pierson, and Wheeler) if there were any witnesses. The three
officers advised that there were no witnesses. McGovern then
asked whether the officers had "operation," i.e.,
whether any officers had evidence that Petrangelo had been
driving the SUV. The three officers stated that they did not.
McGovern did not ask these officers where the SUV had been
found at the scene, or whether Petrangelo had made any
statements or admissions. McGovern did not order any of his
subordinate officers to make a report of the incident.
Speaking
privately with Sergeant Grasso, McGovern stated, "[W]e
can't arrest her." McGovern then ordered Officer
Pierson to drive Petrangelo to her residence.[6] McGovern did
not order the officers under his charge to arrest or to cite
Petrangelo for operating while intoxicated (OUI) or driving
to endanger. McGovern, driving his own police car, followed
Officer Pierson to Petrangelo's residence.[7] At the
beginning of his next shift the following day, Saturday, June
30, McGovern spoke with Acting Police Chief Richard Light
about the incident, the latter then indicating that he
planned to assign the matter to an internal affairs
investigation and advised McGovern not to take any other
action in connection with this incident.
2.
Procedural history.
The
commission issued a show cause order to
McGovern.[8] McGovern answered the show cause
order. Following McGovern's unsuccessful motion for
summary decision, [9]the commission chair, a retired
Superior Court judge, presided at an adjudicatory hearing on
September 11 and 15, 2018;[10] McGovern testified, as
did Sergeant Grasso and Officers Pierson, Wheeler, and
Johnson. Petrangelo did not testify before the
commission.[11] Among witnesses who testified on
behalf of McGovern was Richard Marchese, a former police
officer and chief of the Longmeadow Police Department, and
former executive director of the Massachusetts Chiefs of
Police Association and Municipal Police
Institute.[12] Former Police Chief Marchese
testified as an expert and opined that McGovern "should
not have done anything differently."
Ultimately,
in a comprehensive ten-page decision, the commission
concluded that its enforcement division had proven, by a
preponderance of the evidence, that McGovern, knowingly or
with reason to know, had used his official position, as a
department lieutenant, to decide not to arrest or to cite
Petrangelo at the scene, when there was probable cause to do
so; that McGovern had failed to conduct a meaningful
investigation; and that McGovern had, by his conduct as a
whole, provided Petrangelo with "preferential treatment,
which amounted to an unwarranted benefit or privilege."
The commission imposed a civil fine of $7, 500 against
McGovern. McGovern timely appealed from the commission
decision and order, filing a complaint for review in the
Superior Court.
In
Superior Court, after a hearing on cross motions for judgment
on the pleadings, a judge upheld the commission decision,
ruling that it was supported by substantial evidence and
consistent with governing law. The judge ordered that
judgment enter for the commission and dismissed
McGovern's complaint. This appeal then followed. McGovern
argues that the commission's decision is arbitrary,
abusive of its discretion, unwarranted by the facts found by
the commission, unsupported by substantial evidence, and
marred by legal and procedural errors. We disagree.
Standard
of review.
Our
role in reviewing an administrative agency's final
decision and order is defined in G. L. c. 30A, § 14 (7).
A court may modify or set aside an agency's decision only
if it is determined that the substantial rights of a party
were prejudiced because the contested agency decision was (1)
in violation of constitutional provisions, (2) in excess of
its statutory authority or jurisdiction, (3) based on an
error of law, (4) made upon unlawful procedure, (5)
unsupported by substantial evidence, or (6) arbitrary or
capricious, an abuse of discretion, or otherwise not in
accordance with law. G. L. c. 30A, § 14 (7). McGovern
has not met his burden to show that the commission decision
was marred by such defect or infirmity.[13]
Our
review of a commission decision, issued following an
adjudicatory proceeding, is confined to the administrative
record. We "give due weight to the experience, technical
competence, and specialized knowledge of the agency, as well
as to the discretionary authority conferred upon it." G.
L. c. 30A, § 14 (7). The commission, as the State agency
charged with administering G. L. c. 268A, is due
"substantial deference in its reasonable interpretation
of the statute," Sikorski's Case, 455 Mass.
477, 480 (2009); however, we are mindful that
"principles of deference . . . are not principles of
abdication" (citation omitted), Commissioner of
Revenue v. Gillette Co., 454 Mass. 72,
75 (2009). Accord Shrine of Our Lady of La Salette
Inc. v. Assessors of Attleboro, 476
Mass. 690, 696 (2017). In the end, "interpretation of a
statute is a matter for the courts." Id.,
quoting Onex Communications Corp. v.
Commissioner of Revenue, 457 Mass. 419, 424 (2010)
.[14] We consider whether the commission
decision is supported by substantial evidence, free from
error or unlawful procedure, and consistent with its
statutory and discretionary authority. Craven
v. State Ethics Comm'n, 390 Mass. 191,
201 (1983). "Substantial evidence 'means such
evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Id., quoting G. L.
c. 30A, § 1 (6). A reviewing court may not make a de
novo determination of the facts, make different credibility
choices, or draw different inferences from the facts as found
by the commission. See Pyramid Co. of Hadley
v. Architectural Barriers Bd., 403 Mass.
126, 130 (1988) .
D ...