April 18, 1990

FACTS:

Page 303

You are housing specialists employed by the ABC Division of
the Housing Court Department of the Trial Court (Housing Court).
The ABC Division is one of several housing courts established under
G.L. c. 185C with jurisdiction over certain civil and criminal
actions relating to laws concerned with the health, safety or
welfare of tenants, as well as all housing problems, including all
contract and tenant actions which affect the health, safety and
welfare of the occupants or owners" of property within the
geographical jurisdiction of the court. G.L. c. 185C, s.3,[1] as
appearing in St. 1978, c. 512, s.15.

As housing specialists, you inspect property, mediate
landlord-tenant factual disputes, and coordinate the court
resolution of housing problems.

Page 304

You are also both certified code enforcement inspectors and
have been asked by the XYZ Housing Authority (XYZ) to perform code
inspections for its Section 8 and Chapter 707 housing programs.
Housing authority certification of compliance with the state
sanitary code is a condition to rental of an apartment under these
housing programs.

You state that makers involving units owned or managed by XYZ
do not regularly or frequently come before the ABC Housing Court.
For example, most alleged building code violations in XYZ units are
handled by the city Housing Department, an agency of that city,
rather than through resort to the ABC Housing Court.

You have reviewed your prospective employment plans with the
First Justice of the ABC Housing Court, who has implemented certain
interim standards pending formal consideration of your advisory
opinion request by the full Ethics Commission.


QUESTION:


Does G.L. c. 268A permit your proposed code inspection work
for the XYZ while you also serve as housing specialists for the ABC
Housing Court?


ANSWER:


Yes, subject to the conditions set forth below.


DISCUSSION:




As housing specialists employed by the ABC Housing Court, you
are considered state employees for the purposes of G.L. c. 268A.


1. Limitations on Your Proposed XYZ Activities.


As state employees, you are subject to certain limitations on
your proposed outside activities. Under G.L. c. 268A, s.4(a), a
state employee is prohibited from receiving compensation from any
non-state party such as XYZ in connection with any determination
or other "particular matter"[2] in which the Commonwealth or any
state agency is a party or has a direct and substantial interest.
Assuming that a state agency such as the Department of Community
Affairs has a direct and substantial interest in housing code
compliance certifications, your proposed compensated code
inspection activities for the XYZ would violate G.L. c. 268A, s.4.
A 1980 exemption to G.L. c. 268A, s.4, however, permits most of
your proposed inspection activities. Under St. 1980, c. 10,

This section [4] shall not prohibit a state employee from
holding an elective or appointive office in a city, town or
district, nor in any way prohibit such an employee from
performing the duties of or receiving the compensation
provided by such office. No such elected or appointed official
may vote or act on any matter which is within the purview of
the agency by which he is employed or over which such employee
has official responsibility.

Because the XYZ is a municipal agency for the purposes of G.L.
c. 268A, see G.L. c. 121B, s.7, you may hold an appointed,
compensated position with the XYZ provided that you not act or vote
in your XYZ inspection capacity on any matter which is within the
purview of the ABC Housing Court. For example, if a matter is
pending before the ABC Housing Court relating to the compliance by
an XYZ unit with the state sanitary code, you are prohibited by s.4
from performing paid sanitary code inspection services for the XYZ
in connection with that unit. On the other hand, the exemption to
s.4 permits you to perform inspection work in connection with
housing units which are not the subject of a ABC Housing Court
proceeding.

Under G.L. c. 268A, s.23(b)(1), a state employee is prohibited
from accepting other employment, the responsibilities of which are
inherently incompatible with the responsibilities of his public
office. In previous rulings, the Ethics Commission has prohibited
outside employment which requires an advocacy or mindset which
conflicts with an employee's impartial performance of duties,
EC-COI-82-7, or which involves activities for an organization which
has substantial needs for the employee's official services. In the
Matter Of John DeLeire,
1985 SEC 236.

In light of the relative infrequency of XYZ matters before the
Court, and the determination by the First Justice that your
proposed compensated XYZ inspections are not inherently
incompatible with your housing specialist responsibilities under
the conditions established by the First Justice, we conclude that
your acceptance of XYZ employment would not violate s.23(b)(1).
See, EC-COI-89-30. We also take note of G.L. c. 268A, s.23(d) which
provides that any activity specifically exempted under any other
section of G.L. c. 268A will also be exempt from the provisions of
s.23. In any event, the Court is free to establish additional
standards which are stricter than those found in s.4. See, LaBarge
v. Chief Administrative Justice
, 402 Mass. 462 (1988).

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2. Limitations on Your Court Activities


Section 6 prohibits a state employee from officially
participating in any matter which affects the financial interests
of a business organization which employs him. Because XYZ is
considered a business organization for G.L. c. 268A purposes,
EC-COI-88-4, you will be required to abstain from participating as
housing inspectors in any matter involving the housing
authority which employs you, including units rented under XYZ programs. This
abstention requirement will continue to apply unless you receive
from the presiding justice written permission to participate in
these cases, pursuant to the standards of s.6(3).[3] The abstention
requirement will not apply to matters involving other
municipalities or housing authorities since XYZ will not have a
foreseeable financial interest in those matters.

You state that you have received from the First Justice
conditional permission to participate as court housing specialists
in certain matters in which the XYZ is a party. Those conditions
prohibit your participation in such matters unless you have fully
disclosed on the record to the parties, all of whom must be
represented by counsel, your employment arrangement with the XYZ
and have received written consent from the parties to participate
in the case. Insofar as the exemption standards of s.6 are
concerned, we see nothing which would prohibit an appointing
official from permitting participation by an employee subject to
particular conditions. Where an appointing official possesses
discretion under s.6 to entirely permit or deny participation by
an employee, it logically follows that an appointing official
possesses the authority to establish conditions on participation.
This is particularly apt where, as here, the conditions established
by the appointing official reasonably relate to preventing any
perception that an employee's official judgment may be clouded by
competing private loyalties. Pursuant to G.L. c. 268A, s.6(3), a
copy of the conditions permitting participation should be filed
with the Commission.

We would add that the statutory exemption scheme in G.L. c.
268A, s.6 requires an appointing official to evaluate the
substantiality of the financial interest at issue. In your case,
the First Justice must evaluate the financial interest of the XYZ
which is at stake in each XYZ-related matter which comes before you
as a housing specialist. In cases in which the financial interests
of the XYZ are substantial, the First Justice may very well
determine that the financial interest will effect the integrity of
your services and that your participation would therefore not be
appropriate, even following disclosure to and consent by the
interested parties. In such cases, the First Justice should assign
the XYZ-related matter to a different housing specialist.

Finally, you should observe the limitations of G.L. c. 268A,
s.23(b)(2). This section prohibits a state employee from using his
official position to secure unwarranted privileges or exemptions
of substantial value for himself or others. As applied to you,
s.23(b)(2) requires that you perform your housing authority
activities entirely outside of your Court work schedule and that
you refrain from using any Court equipment or resources to carry
out your housing authority activities.

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

[1] The enactment of this statute expanded the jurisdiction
of the ABC Division and other housing courts. See, Harker v.
Holyoke
, 390 Mass. 555 (1983); Chakrabati v. Marco S. Marinello
Associates, Inc
., 377 Mass. 419 (1979).

[2] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of cities, towns,
counties and districts for special laws related to their governmental
organizations, powers, duties, finances and property.

[3] Under s.6,

Any state employee whose duties would otherwise require him
to participate in such a particular matter shall advise the
official responsible for appointment to his position and the state
ethics commission of the nature and circumstances of the particular
matter and make full disclosure of such financial interest, and the
appointing official shall thereupon either

(1) assign the particular matter to another employee; or

(2) assume responsibility for the particular matter;

(3) make a written determination that the interest is not so
substantial as to be deemed likely to affect the integrity of the
services which the commonwealth may expect from the employee, in
which case it shall not be a violation for the employee to
participate in the particular matter. Copies of such written


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determination shall be forwarded to the employee and filed with the
state ethics commission by the person who made the determination.

End Of Decision