February 25, 1994

FACTS:

You serve as the Building Commissioner/Inspector of
Buildings in a Town ("Town"). You are certified by the State
Board of Building Regulations and Standards ("BBRS") as a
"building inspector/building commissioner". This certification is
now required for all municipal inspectors/building commissioners
and is only available to individuals serving in such municipal
positions.

You intend to start a private business in which you would
conduct private inspections in connection with the purchase and
sale of real estate. You state that your business would not
involve construction, remodeling or other work subject to
inspection by you as the Town's Building Inspector. Rather, you
will inspect houses prior to their sale, relative to conditions
such as wear and tear, pest infestation, leaks, etc. You tell us
that your private inspection services will not relate to
compliance with the Massachusetts State Building Code or any
other code. You have provided us with a sample contract which you
intend to use that specifically states that "[t]his report is not
a compliance inspection or certification for past or present
governmental codes or regulations of any kind." You believe that,
in general, you are under no obligation to take any action in
your municipal position, should you inadvertently come across a
minor building or other code violation during the course of a
private inspection, nor will you do so. There may, however, be
certain more serious situations where you are legally required to
act as the local inspector.



QUESTIONS:

1. May you use your status as a "Massachusetts Certified
Inspector of Buildings" on business cards for your contemplated
private business?

2. May you perform the proposed private inspectional
services in connection with home sales in Town?

ANSWERS:

1. No.

2. No.


DISCUSSION:

In your position as the Town's Building
Commissioner/Inspector, you are a municipalemployee for
purposes of the conflict of interest law.[1] Section 23 of G.L.
c. 268A is relevant to your request.


1. Use of State Certification on Business Cards


You ask if you may use your status as a "Massachusetts
Certified Inspector of Buildings" on your private business cards.
The use of your certification will raise an issue under s. 23,
which provides standards of conduct which are applicable to all
public employees. Specifically, s. 23(b)(2) provides, in
pertinent part, that no public employee may use his official
position to secure unwarranted privileges of substantial value
for himself or others.

Although you are not proposing to explicitly use your title
as the Town's Building Commissioner/Inspector, we find that by
virtue of your proposed business cards, you would nevertheless be
using your public position to secure an unwarranted privilege of
substantial value in violation of s. 23(b)(2). This is because,
as you have explained, state certification as a building
inspector/commissioner is only available to those individuals who
serve as inspectors for municipalities. We therefore conclude
that implicit in your use of the certification on your business
cards is the use of your public position to assist you in a
private business endeavor which has no relation to your public
position or state certification. In other words, the use of your
certification will likely provide you with unfair advantage over
other providers of private inspectional services. Where such an
advantage is derived from your public position and available
solely to those who hold municipal inspectional positions (a fact
which may or may not be known by your prospective private
clients), we find that your use of the certification for private
purposes would constitute use of your public position to obtain
an unwarranted privilege in violation of s. 23(b)(2). See EC-COI-
92-28
(s. 23(b)(2) generally prohibits public employees from
using official resources, including their titles, to promote a
private interest); 84-127 (member of the judiciary may not lend
the prestige of his judicial office to a corporate advertising
campaign).

We also note that, pursuant to s. 23(b)(2), you may not use
any Town resources or equipment to which you may have access for
your private inspection work, nor may you engage in these private
business activities during your Town work hours.


2. Performing Inspections in Town


You also ask whether you may perform the proposed private
inspectional services in connection with home sales in Town.
Section 23(b)(1) prohibits a municipal employee from accepting
other employment involving compensation of substantial value,[2]
the responsibilities of which are inherently incompatible with
the responsibilities of his public office. This provision seeks
to prevent the impairment of a public official's independence of
judgment in the performance of his official duties which may
result from certain types of simultaneous private employment. In
1985, the Commission found a violation of the conflict of
interest law where a municipal police lieutenant simultaneously
held a private job which overlapped with his official duties. In
particular, where the police officer was privately employed as an
assistant racetrack security chief and where the racetrack
utilized municipal police services, the Commission found that the
officer's private duties "necessarily impair[ed] the independence
of his judgment in the performance of his official duties". See
In re DiPasquale
, 85 SEC 239;[3] see also EC-COI-84-93 (attorney
engaged in consulting work would be inherently impaired in the
performance of his official duties); 91-14 (current member of the
General Court could not conduct private seminars providing
information on how to obtain advantages before or otherwise lobby
the Legislature); 81-151 (state employee must be free to exercise
independence of judgment and remain loyal solely to the
Commonwealth).

You explain that your proposed inspectional services will be
provided as part of a private real estate transaction and not in
relation to the Massachusetts State Building Code or any other
municipal code. Furthermore, you believe that, in general, you
are under no obligation to take action in your municipal
position, should you inadvertently come across a building code
violation. You have acknowledged, however, that there may be
certain situations where you are legally required to act as the
local inspector. In particular, s. 6 of G.L. c. 143 requires that
a local inspector, "upon being informed by report or otherwise
that a building or other structure ... is dangerous to life or
limb ... shall inspect same; and he shall forthwith in writing
notify the owner ... to remove it or make it safe if it appears
to him to be dangerous ... "

If, therefore, in the course of a private inspection, you
were to become aware of a situation which would obligate you to
take action as the Town's inspector pursuant to G.L. c. 143, s.
6, your loyalties would be divided, creating a situation where
your private business activities would be inherently incompatible
with your public duties as the Town's building inspector. In
other words, under such a scenario, your independent judgment
would be impaired by yourprivate business relationship with a
paying client. Because you cannot anticipate when you may come
across a problem of the type covered by G.L. c. 143, s. 6, in
order to avoid the potential for a violation of s. 23(b)(1), you
must refrain from providing private inspectional services in
connection with home sales in Town. See Edgartown v. State Ethics
Commission
, 391 Mass. 83, 89 (1984) (Legislature's concern about
conflicts between public duties and private interests "may
reasonably have motivated it to prohibit involvements that might
present potential for such conflicts"). We note that you are not,
however, restricted from engaging in your private inspectional
services in other municipalities.

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

[1] "Municipal employee", a person performing services for
or holding an office, position, employment or membership in a
municipal agency, whether by election, appointment, contract of
hire or engagement, whether serving with or without compensation,
on a full, regular, part-time, intermittent, or consultant basis,
but excluding (1) elected members of a town meeting and (2)
members of a charter commission established under Article LXXXIX
of the Amendments to the Constitution. G.L. c. 268A, s. 1(g).

[2] The Commission has determined that anything valued at
$50 or more is "of substantial value". EC-COI-93-14.

[3] We note that this case was decided pursuant to s.
23(2)(1), a prior version of s. 23(b)(1). The principals
embodied in, and the Commission's interpretation of, the
predecessor to s. 23(b)(1) are nevertheless relevant to our
analysis here.

End Of Decision