McGovern v. State Ethics Comm'n, 18-P-1060

• Decision Date: 10 October 2019
• Docket Number: No. 18-P-1060,18-P-1060
• Parties: Edward MCGOVERN v. STATE ETHICS COMMISSION.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 221

135 N.E.3d 731

Edward MCGOVERN

v.STATE ETHICS COMMISSION.

No. 18-P-1060

Appeals Court of Massachusetts, Hampden..

Argued March 12, 2019

Decided October 10, 2019

Vincent A. Bongiorni (Thomas A. Kenefick, III, also present), Springfield, 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...