November 9, 1989

FACTS:


Page 278

You are a part-time, special police officer in a Town (Town).
Special police officers have been designated special municipal
employee positions by the Board of Selectmen. You are appointed
to the special police officer position each year by the Board of
Selectmen and you serve in that position approximately a maximum
of four hours per month or not more than twenty days in a year.

Recently you opened your own garage in Town specializing in
truck and heavy equipment repair as well as customting four
wheel-drive vehicles. You are the sole owner and employee of the
garage. Your business owns the only towing truck in Town.
Occasionally, you receive calls from the Town to tow vehicles
although you state that towing is a very minor part of your
business. If you are unavailable, a wrecker is called from
another Town. As a special police officer, you are not
authorired to call a wrecker and you may not, in your official
capacity, call your own tow company nor solicit business for your
company. A police sergeant or other officer in charge must
authorize a call for towing a vehicle according to information
provided by the Town, you have complied with the requirements of
a s.20(d) exemption.[1] In addition, you repair Town fire trucks.

As a tower of motor vehicles, you are licensed by the state
Department of Public Utilities (DPU) as a common carrier of motor
vehicles." G.L. c. 159B, s.3(a),(b). DPU sets the maximum
allowable rates for towing and storage ordered by the police or
other public authority or during snow removals. Id at s.6C and
s.6B. You have also filed a business certificate with the Town
Clerk as is required for anyone doing business under a title
other than the operators real name. G.L. c. 110, s.5.[2]

The Town Police Chief states that the Police Department has no
formal policy on the use of tow operators and that no rotation
list is in effect as that type of arrangement has been
unsuccessful. He states there are five tow operators on the
Department's list and all are located within a ten-mile radius of
the Town. A tow operator is placed on the Department's list by
request. There is no application or bid process. According to the
Chief, the Department generally calls you first since you are the
closest tower. If you are unavailable to do a police tow, the
next company on the list is called. A tower may refuse a police
tow, for instance if he has a private tow request. Tow operators
may charge more money for private tows. The procedure for towing
vehicles requires the patrolman to call the Police Chief who then
authorizes a tow.

Towing for the State Police is a separate matter. In order to
do so, a tow operator must register with the State Police and
generally guarantee towing availability at all hours of the day.
Once you register with the State Police, you would be placed on a
rotational list for your area and called whenever the need
arises.


QUESTIONS:

1. May you continue to be as a Town special police officer in
view of your ownership of a garage in Town which has the only
towing truck in Town?


2. May you repair Town fire trucks?


ANSWERS:

1. Yes, subject to the provisions of s.s.20 and 23 of 268A.

2. Yes, subject to s.20.


DISCUSSION:


As a Town part-time police officer, you have been classified
as a "special municipal employee" within the meaning of the
conflict law, G.L. c. 268A, s.1(n).[3]


Section 20


Section 20 of G.L. c. 268A prohibits a special municipal
employee from having a direct or indirect financial interest in a
contract made by any municipal agency of the same town. The
purpose of this section is to avoid the perception that Town
employees enjoy an "inside track" on Town contracts or
employment.

Despite the general prohibition of s.20, there exists in
s.20(c) an exemption which permits you to repair fire trucks.
Section 20(c) would exempt you as a special municipal employee if
your police duties do not include matters concerning the fire
department and you file a written statement with the Town Clerk's
Office disclosing your interest in your paid arrangement to
repair Town Fire Department vehicles. With respect to your towing
vehicles in response to a Town Police Department request,
however, the Commission finds that you have a financial interest
in a contractual arrangement with your own municipal department,
and thus you must comply with the requirements of a s.20(d)
exemption.

Page 279

The Commission has articulated through established precedent a
broad view as to what constitutes a contract for the purposes of
the conflict law. See, EC-COI-85-5. It is well-setlled that the
Commission does not require a contract to be formalized in
writing for it to result in a violation of c. 268A. See, EC-COI-
89-14; 85-79
.[4] The Police Department by virtue of its police
powers is charged with the responsibility of protecting the
public and ensuring that the Town's public ways are safe. A
police-ordered vehicle tow is performed at the direction of the
Police Department. The Police Department currently has a list of
five tow companies in the area. The companies have submitted
their names to the Police Department to be placed on the towing
call list. The Department has accepted their services by placing
them on the list. You are one of the companies on the towing
list. You are the sole employee of your garage. You therefore
have an arrangement with the Police Department to provide towing
services. You have a financial interest in that contractual
arrangement each time you perform a police-ordered tow. It does
not matter that the source of your compensation comes from the
private vehicle owner. See, Quinn v. State Ethics Commission, 401
Mass. 210 (1987).

The fact that you are licensed by DPU, a state agency, to be a
tower, does not affect our conclusion under s.20. Your
contractual arrangement with the Police Department to provide
towing services is not a license from the Town. Rather, your DPU
license allows you to engage in a contractual arrangement with
the Police Department as well as to perform towing for private
parties.

Therefore, in order to avoid a violation of s.20 by virtue of
your police position and your towing agreement with the Police
Department, s.20(d) requires you to file a written disclosure
with the Town Clerk's office, stating your garage's financial
interest in towing for the Town, and the Selectmen must approve
your exemption from s.20. According to the Town, you have
complied with this requirement.


Section 23


Section 23, the standards of conduct provision, is a
supplemental section to the other provisions of c. 268A. Section
23(b)(2) prohibits you from using your official position to
secure for yourself or someone else, any unwarranted privelege or
exemption of substantial value which is not available to
similarly situated individuals. An item of substantial value has
been interpreted by the Commission as anything worth $50 or
more.[5] For example, this section would prohibit you from
conducting any private business during the hours you serve as a
Town police officer. Similarly, this section would prohibit your
official endorsement of your garage either by handing out your
garage's business card to individuals with whom you have official
dealings or by making recommendations to such individuals. See,
EC-COI-81-87; 84-127
.

Section 23(b)(3) prohibits you from engaging in activity which
would cause a reasonable person to believe that your official
actions are unduly or improperly influenced because of the
kinship, rank, position or undue influence of any person. In
other words, this subsection prohibits yoti from engaging in
activity creating the appearance of a conflict of interest. For
example, if you have official dealings with a private client of
your garage, issues under s.23 may be raised where it could
reasonably appear that your official actions may be improperly
influenced by that prior business relationship. An exemption from
this section is available to you, however, if you disclose in
writing to your appointing authority the facts of the situation
creating the appearance of a conflict. This disclosure should be
made in advance of your activity proscribed by this section.

Furthermore, you should be aware that s.23(e) provides that
additional standards of conduct may be promulgated by your Town
or Town department. See, EC-COI-85-12; 88-17. You should check
with your town counsel to determine whether any such rules or
regulations could apply to your circumstances.[6]

---------------

[1] The exemption in G.L. c. 268A, s.20(d) applies to

". . . a special municipal employee who files with the clerk
of the city or town a statement making full disclosure of his
interest and the interests of his immediate family in the
contract, if the city council or board of aldermen, if there is
no city council, or the board of selectmen approve the exemtion
of his interest from this section. . ."

[2] You are aware of no other rules or regulations pertaining to
the operation of your towing business. For the purposes of this
opinion, the application of G.L. c. 40, s.22D would not change
any conclusions contained herein. Upon acceptance of c. 40,
s.22D, a municipality may authorize its police officers either to
tow vehicles or to have the towing performed by an independent
contractor.

Page 280

[3] You also would be considered a "municipal employee" in
your performing towing services for the Town since you would be a
person performing services for a municipal agency by appointment,
or contract of hire or engagement, and serving with compensation
on a part-time or intermittent basis. The definition of a
"municipal employee" has broad application. See, Buss, The
Massachusetts Conflict of Interest Law: An Analysis
, 45 B.U. Law
Rev. 299,311 (1965).

[4] This analysis is distinguishable from Central Tow Co., Inc.
v. City of Boston
, 371 Mass. 341 (1976). Central Tow involved a
towing company which sought recovery of unpaid towing and storage
fees from the City where owners failed to claim their vehicles
which had been towed under police order. The court held that the
City bad no contractual obligation to pay such fees where they
had not been expressly contracted for in accordance with the
relevant statutes. This decision did not reach the issue of the
tower's authorization to collect towing fees from the owner of
the towed vehicle.

[5] See, {Commission Advisory No. 8}.

[6] Under the facts you have presented, the conduct of your
towing business does not present inherently incompatible
employment with your part-time police position under s.23(b)(1).
Your special police duties do not include towing assignments, nor
are you working for a company which has substantial needs for the
police department's services. Compare, In the Matter of John
DeLeire,
1985 SEC 236.

End Of Decision