On January 7, 2016, the Division of Insurance Hearing Officer Jean F. Farrington entered an Order revoking the resident individual insurance producer license of Betty Burgos (“Ms. Burgos”), of Boston. The DOI also fined Ms. Burgos $2000.
Ms. Burgos’ actions in conspiring with her recently-released-from-jail fiancé to intimidate a hit-and-run victim through the use of the claim information accessed through her employer’s agency system is detailed in the prior Agency Checklists December 22, 2014 article, “Agency’s Loyalty To Employee Results In Lawsuit.”
Division seeks license revocation for failure to report Iowa and Massachusetts criminal charges
The Division of Insurance (“the Division”) began its administrative proceeding against Ms. Burgos on October 3, 2014.
The Division’s Complaint alleged four statutory grounds for the revocation of her license, as well as fining her and barring her from any further involvement in the Massachusetts insurance industry. The violations alleged were that Ms. Burgos:
- Failed to report to the Division within thirty days, as required by statute, the initial pretrial conference on criminal charges filed against her in Iowa for illegal gun possession.
- Failed to report to the Division within thirty days, as required by statute, the criminal charges made against her in the Boston Municipal Court, Charlestown Division.
- Provided incorrect and materially untrue information to the Division in her April 11, 2012 Application for Individual Insurance Producer License; and
- Used her position as an insurance producer to obtain information to be used to intimidate a witness in a criminal proceeding, thus, demonstrating incompetence and untrustworthiness in the conduct of business in the Commonwealth in “violation” of Chapter 175, § 162R(a)(8).
As opposed to many licensees who default when the Division brings a license revocation complaint against them, Ms. Burgos appeared to contest the Division of Insurance’s Complaint. She represented herself and testified on her own behalf. She also filed a brief following the hearing stating her position.
Iowa gun charges
The Iowa criminal charges filed against Ms. Burgos identified by the Division related to Ms. Burgos’s arrest in 2010 during a cross-country trip with her fiancé, Daniel Thomas. Stopped for speeding by the Iowa state police, a bullet visible on their vehicle’s backseat led to a search that found two handguns in Ms. Burgos’ handbag. One of the handguns had a serial number removed. The other was stolen.
The state police filed charges against Ms. Burgos and Mr. Thomas in an Iowa state court. The firearm with the obliterated serial number, however, resulted in federal ATF agents investigating the case. The investigation resulted in a superseding federal indictment against both Ms. Burgos and Mr. Thomas for the possession of a firearm with an obliterated serial number in interstate commerce. Following the federal indictment, the state of Iowa dismissed its charges in state court.
After pleading guilty in Federal Court, Mr. Thomas received a sentence to serve one year and a day in prison with two years of probation to follow. Ms. Burgos was allowed to go into a pretrial diversion program while the indictment against her was pending. Upon her successful completion of the program, the court dismissed her indictment.
Conspiracy and witness intimidation charges in the Charlestown District Court
On July 13, 2012, Ms. Burgos’ Mercedes failed to stop for a state police officer in Cambridge. A police chase ensued and the male operator driving the vehicle accelerated through Charlestown trying to escape capture. The pursuit ended when Ms. Burgos’ vehicle crashed into another vehicle owned by one Mark Adams. The male operator fled the scene of the accident on foot.
Upon inspection of Ms. Burgos’ vehicle, the state police found Mr. Thomas’ cell phone and driver’s license. When the police called a number on Mr. Thomas cell phone, Ms. Burgos answered and said no one had authority to drive her vehicle, but that Mr. Thomas was, in fact, her fiancé. She then filed a stolen vehicle report with the police and filed a damage claim with her insurer, Safety Insurance.
After investigating further, the state police obtained a warrant for Mr. Thomas’ arrest from the Charlestown District Court. The warrant for his arrest was for leaving the scene of an accident after causing property damage as well as driving on a revoked license.
In the meantime, Ms. Burgos then became involved in a plan with Mr. Thomas to have the Charlestown complaints against him dismissed by intimidating the only witness who could identify him, Mr. Adams. The alleged plan was to intimidate Mr. Adams into not testifying.
Ms. Burgos had started with the Congress Auto Insurance Agency, Inc. (“Congress”) in 2003 as a customer service representative in 2003. The agency promoted her to office manager in 2010 as the agency had found her job performance excellent.
Two weeks after the hit-and-run accident, the computer logs of Safety Insurance showed that on July 25, 2012, in the morning and again in the afternoon, Ms. Burgos, using her position as office manager at Congress to access the Safety Insurance’s computer records. The records further evidence that Ms. Burgos searched Safety’s records for documents regarding the accident with her vehicle, the hit-and-run’s victim’s name, address and cell phone number as well as the statement that the victim, Mark Adams, could identify the driver of the Mercedes.
The same day, later in the afternoon, Mr. Adams received a phone call on his cell phone from Mr. Thomas posing as a state police officer. Mr. Thomas attempted to intimidate Mr. Adams into not testifying by implying that the defendant [Mr. Thomas] was dangerous and the state police would not protect him.
Mr. Adams reported the call to the investigating officers. The officers were able to obtain the evidence on where the contact information had originated.
See Agency Checklists December 22, 2014 article, “Agency’s Loyalty To Employee Results In Lawsuit.”
Mr. Thomas’ abortive attempt at intimidation resulted in both Ms. Burgos and Mr. Thomas being charged with conspiracy to intimidate a witness and intimidation of a witness in the Charlestown District Court.
As a result of Ms. Burgos’ actions, Mr. Adams additionally sued the Congress Auto Insurance Agency, Inc. for damages. The Superior Court eventually entered Summary Judgment in favor of Congress ruling that there was no evidence that Congress had in any way facilitated or aided the actions of Ms. Burgos.
Ultimately, it was determined that Congress’ only role was in providing Ms. Burgos, as an employee, the opportunity to improperly access claim information for her own improper purpose. Mr. Adams has appealed that decision to the Massachusetts Appeals Court. Oral arguments are scheduled for March 2016. Agency Checklists will update its readers on any result from this appeal.
Admission in court to sufficient facts on conspiracy and intimidation of witness
On January 9, 2013, Ms. Burgos admitted sufficient facts before a judge of the Charlestown District Court on conspiracy and intimidation of witness charges. During the course of the proceeding Ms. Burgos, under oath and represented by an attorney, admitted that she had “directly or indirectly” acted to“…intimidate or harass another person as a witness or potential witness at some stage in a criminal investigation.” She also admitted that she had conspired with Mr. Thomas to “…commit the criminal offense of intimidation of a witness…”
In the same proceeding, Ms. Burgos admitted that she had accessed Safety Insurance’s computer records using “her position as a manager” to access these “computer records showing the witness and victim, Mr. Mark Adams’ – address and cell phone number and a statement that Mr. Adams can identify the driver of the Mercedes [Ms. Burgos’s car].”
After a full colloquy with Ms. Burgos on the charges she was admitting were true, the Judge entered a finding that there existed sufficient facts to prove that Ms. Burgos had engaged in witness intimidation and conspiracy to commit the criminal offense of intimidation of a witness in connection with an insurance claim.
Accepting Ms. Burgos’ admission of guilt, the District Court Judge continued the charges for one year to be dismissed upon Ms. Burgos’ good behavior.
Mr. Thomas did not fare as well. Based on the charges against him, the Federal Court in Boston revoked his probation and ordered him imprisoned on January 13, 2013, for an additional four months.
Iowa District Court Charges Not Upheld
On April 11, 2012, Ms. Burgos filed a renewal application for her producer license with the Division of Insurance. Question 1 of the Background Information section of this application asked Ms. Burgos to answer the question:
Have you been convicted of a crime, had a judgment withheld or deferred, or are you currently charged with committing a crime, which has not been previously reported to this insurance department?
Ms. Burgos answered “No.”
The Division’s Complaint asserted that Ms. Burgos’ failure to report the Iowa state court criminal charges on this application constituted ground to revoke her produce license.
The Hearing Officer found that the Division of Insurance had not proven that Ms. Burgos had inaccurately answered Question No. 1. She found that the documentary evidence presented by the Division of Insurance only showed that the crime charges against Ms. Burgos commenced in June 2010 but were dismissed on September 30, 2010.
In the Hearing Officer’s opinion this evidence did not satisfy the Division’s legal burden to prove that Ms. Burgos:
- had failed to report to the Commissioner any “criminal prosecution” in any jurisdiction “[w]ithin 30 days of the initial pretrial hearing date” as required by § 162V(b); or,
- that Ms. Burgos had been “convicted of a crime” or “had a judgment withheld or deferred,” or was at the time she signed the application “currently charged with committing a crime” as required §162R(a)(1).
As the Hearing Officer pointed out, and the Division conceded, the documentary evidence from the Iowa state court did not “contain evidence that a pretrial hearing date occurred” on those criminal charges. The Hearing Officer found that such a lack of proof that an initial pretrial hearing date had ever occurred required her to find against the Division on its charge that Ms. Burgos had failed to report to the Commissioner under § 162V(b).
Likewise, the Hearing Officer also found against the Division on its allegations that Ms. Burgos had violated § 162R(a)(1) by not reporting in her April 2012 application the Iowa state court criminal charges. This statute, the Hearing Officer determined, required Ms. Burgos only to disclose these criminal complaints if at the time she signed the application she had been “convicted of a crime” or had “had a judgment withheld or deferred,” or was at the time of the application “currently charged with committing a crime.”
The Hearing Officer found that because the Iowa state court criminal charges had been dismissed, some eighteen months before Ms. Burgos signed the April 2012 application, Ms. Burgos had no obligation to disclose these charges under the terms of §162R(a)(1) in connection with her 2012 application.
Actually the Division was correct about Ms. Burgos violation of §§ 162V(b) and 162R(a)(1) but had the wrong Iowa case
As found by the Hearing Officer, Ms. Burgos’ Iowa state court case had been dismissed without any action. However, as stated earlier, this dismissal resulted because of a superseding federal indictment.
The federal docket on Ms. Burgos’ case shows that, in fact, an initial “pretrial conference” had been held on April 14, 2011 on her federal indictment. Apparently, Ms. Burgos never reported this pretrial conference to the Commissioner as required by §162V(b).
Also, at the time Ms. Burgos answered Question No. 1 on her April 11, 2012 license application, Ms. Burgos’ federal indictment was still pending, notwithstanding, her court approved pretrial diversion program. As a result, she was still “currently charged with committing a crime.” The Federal Court did not dismiss her indictment until May 24, 2012, some six weeks after she had submitted her license application.
Reasoning of Hearing Officer on admission before District Court
The ruling in favor of Ms. Burgos with regard to Iowa proceedings gave her little satisfaction. The Hearing Officer found that there was clear and convincing evidence that Ms. Burgos was unfit to hold the license based upon her actions in conspiring with Mr. Thomas to intimidate the witness against him in the Charlestown District Court.
The Hearing Officer noted that at the hearing and in her brief, Ms. Burgos tried to disavow the admissions she made under oath in the Charlestown District Court stating that:
I believe that in accessing the records of Safety Insurance, I was acting as my own agent in reviewing a claim MY CAR had been involved in. Certainly Congress insurance had told us to not use the information in any negative way, and I did not then, and do not now, believe my intentions were ever dishonest. … I never handed any information to Mr. Thomas; I was looking into MY OWN claim.
The Hearing Officer, however, would have none of that argument. She ruled that under Massachusetts law, Ms. Burgos could not contradict what she had admitted under oath in the Charlestown District Court, ruling:
…[B]asic respect for the integrity and finality of Ms. Burgos’ guilty pleas …demands that they be conclusive on the issue of the facts of her actions of using her manager’s position to obtain information that was used in an [sic] criminal conspiracy with Mr. Thomas to attempt to intimidate a potential witness to a traffic accident in which her motor vehicle was involved, and she will not be permitted to disavow her guilty pleas to these facts in this enforcement hearing.
Likewise, the Hearing Officer rejected Ms. Burgos argument that “her Charlestown criminal case was dismissed ….and that she does not have a criminal conviction on her record as a result of the Charlestown criminal charges…” The Hearing Officer acknowledge that Ms. Burgos correctly stated that the disposition of the criminal cases against her resulted in no criminal record.
The Hearing Officer ruled, though, that “The eventual dismissal of the Charlestown criminal charges, however, is irrelevant to the matters for which Ms. Burgos is being disciplined for in this Decision.”
The Hearing Officer found that Ms. Burgos admission, and the Judge’s finding of sufficient facts for a guilty finding of witness intimidation and conspiracy to commit witness intimidation by means of using information she obtained as an insurance agency manager, was “a sufficient basis” for imposing discipline.
Conclusion and revocation…
Hearing Officer Farrington ended her Decision stating, “The Charlestown criminal charges against Ms. Burgos were very serious: witness intimidation and conspiracy to commit the criminal offense of intimidation of a witness…The seriousness of Ms. Burgos’ violation of § 162V(b) makes license revocation and the maximum civil penalty appropriate.”
Additionally, Hearing Officer Farrington decided, “The facts that Ms. Burgos admitted in [the Charlestown District Court complaint] establish that she engaged in serious misconduct demonstrating untrustworthiness in her conduct of insurance business in Massachusetts…The appropriate sanction is a civil penalty of $1,000.00 and revocation of her Massachusetts insurance producer license pursuant to § 162R(a)(8) and Chapter 176D, § 7”
Final Orders Against Ms. Burgos
Based on Ms. Burgos’ admission of sufficient facts to the conspiracy and intimidation of witness charges before the Charlestown District Court and the Hearing Officer’s rulings as to the legal effect of those admissions by Ms. Burgos, the Hearing Officer entered Orders revoking
… Any and all insurance producer licenses issued to Betsy Burgos by the Massachusetts Division of Insurance. Additionally, the Hearing Officer entered an Order, as allowed by statute, prohibiting Ms. Burgos “… [F]rom directly or indirectly transacting any insurance business or acquiring, in any capacity whatsoever any insurance business in the Commonwealth of Massachusetts.”
The Hearing Officer also ordered Ms. Burgos to “pay to the Massachusetts Division of Insurance within thirty days… a civil penalty of two thousand dollars ($2,000.00) pursuant to Chapter 175, § 162V, § 162R(a)(2), and § 162R(a)(8); and Chapter 176D, § 7.”