February 25, 1994

 

FACTS:

You are a full-time court officer assigned to a department
of the Trial Court, providing security in a courthouse. You are
interested in simultaneously serving as an appointed constable in
order to serve civil and/or criminal process. You do not intend
to serve process during your normal working hours as a court
officer.
 


QUESTION:

May you work as a constable while serving as a court
officer?

 

ANSWER:

Yes, subject to the limitations set forth below.
 


DISCUSSION:

While constables have a wide range of statutory power, their
chief function is the service and execution of legal process.
G.L. c. 41, s. 92.[1] Constables who are bonded in the maximum
amount have the authority to serve the following types of
documents: summonses and complaints where the amount of damages
is $2,500 or less; executions and real estate attachments not
exceeding $2,500; supplementary process in any amount; summary
process; notices of all kinds; demands; restraining orders;
orders of notice; injunctions; civil and criminal capias;
treasurers warrants and proclamations; certain probate and family
court process; subpoenas and other writs and papers from district
courts, superior courts, the supreme judicial court and federal
courts; and mittimus or other required precept posting notices of
town meetings and other notices. G.L. c. 41, ss. 92-5. A
constable's return of service is prima facie evidence of service.
Thus, a constable's primary duty is to properly serve all lawful
processes issued by a court, judge, or judicial officer that are
legally directed to her. G.L. c. 220, s. 6.[2]

Nothing in the conflict of interest law would prevent a
state employee from serving process as a constable on behalf of a
private party or a non-state party. This is true even where the
state is a party to the litigation or has a direct and
substantial interest in the case.[3] However, you need an
exemption to s. 7 of G.L. c. 268A in order to serve as a
constable on behalf of a state agency.


1. Section 7


Section 7 is implicated where you wish to provide
compensated constable services for the Commonwealth or a state
agency. Section 7 prohibits a state employee from having a
financial interest, directly or indirectly, in a contract made by
a state agency[4], in which the Commonwealth or any state agency
is an interested party, unless an exemption applies. This section
would prevent you, in some cases, from performing paid services
as a constable for the Commonwealth or any state agency.
EC-COI-85-41.

Section 7 is intended to prevent state employees from using
their positions to obtain contractual benefits from the state and
to avoid any public perception that state employees have an
"inside track" on such opportunities. "Because it is impossible
to always

Page 563

distinguish employees who are in a position to influence
the awarding of a contract from those who are not . . . the law
treats all state employees as though they have influence." EC-
COI-85-3. See also Buss,
The Massachusetts Conflict of Interest
Statute
, 45 Law R. 299, 374 (1965).

As a full-time state employee in your court officer
position, the only exemption potentially available to you is s.
7(b). This section would permit a court officer to receive
compensation from a state agency if all of the following
conditions are met:

(1) you are not employed by the contracting agency or an
agency which regulates the activities of the contracting agency;

(2) you do not participate in or have official
responsibility for any of the activities of the contracting
agency;

(3) the contract is made after public notice, or, where
applicable, competitive bidding;

(4) your constable services will be provided outside of your
normal working hours as a court officer;

(5) you are not compensated as a constable for more than 500
hours during a calendar year;

(6) the services are not required as part of your regular
duties as a court officer;

(7) the head of the contracting agency files a written
certification with the State Ethics Commission that no employee
of that agency is able to perform the services as a part of his
regular duties; and

(8) you file a full disclosure of your financial interest in
the arrangement with this Commission.

Thus, the first issue under s. 7(b) is: what is the state
agency by which you are employed -- the entire Trial Court, or
merely the Department of the Trial Court to which you have been
assigned. In 1978, the Legislature enacted the Court
Reorganization Act, which first effected an administrative
consolidation of all of the courts in the Commonwealth with trial
jurisdiction. Chapter 478 of the Acts of 1978.[5] Subsequently,
on January 13, 1993, the Governor signed into law the Act
Improving the Administration and Management of the Judicial
System of the Commonwealth, c. 379 of the Acts of 1992 (commonly
referred to as The Court Reform Act). The Court Reform Act
further modifies certain aspects of the Trial Court system,
including jurisdictional features specifically referencing court
officers. Because of the significant legal change to the court
system pertaining to court officers, we can no longer conclude
that court officers are employees of the Department to which they
are assigned. Rather, court officers are employees of the entire
Trial Court, as described below.

While the earlier version of the court system provided for a
Chief Administrative Justice, the Court Reform Act establishes
the position of a Chief Justice for Administration and Management
("CJAM"), whose duties are broadened. G.L. c. 211B, s. 1. Under
the Court Reform Act, the CJAM is responsible for the overall
administration of the entire Trial Court. A significant change
under the Court Reform Act is that all court officers appointed
to any department of the Trial Court are specifically designated
as employees of the CJAM, rather than of an individual court.
G.L. c. 211B, s. 9A. The CJAM explicitly has the power to
appoint, discipline, transfer[6] and define the duties of court
officers, including those court officers who were appointed prior
to the adoption of the Court Reform Act. It is clear that court
officers are not employees of the chief justice of each
department. Instead, the Court Reform Act specifically excludes
court officers from the category of personnel of the chief
justice of a particular department, and instead explicitly
identifies court officers as employees of the CJAM.[7]

Since the CJAM is the administrative head of the entire
Trial Court and court officers are employees of the CJAM, court
officers are employed by the Trial Court rather than the
department to which they have been assigned. G.L. c. 211B, s. 9.
Cf. EC-COI-85-41 (based upon the 1978 Act). Thus, you are an
employee of the entire Trial Court, not of the Department to
which you are currently assigned.[8] Therefore, you may not
receive compensation from the Trial Court or any Department of
the Trial Court as a constable, because you will not be able to
obtain a s. 7(b) exemption under G.L. c. 268A.[9]

Another important condition for a s. 7(b) exemption is the
"public notice" requirement. If you wish to provide constable
services for compensation from a state agency, the agency must
"publicly advertise" for a constable. The Commission has
recognized that, in certain specialized personal service contract
areas, the requirements of public notice are not practical. EC-
COI-85-27
. At a minimum, the Commission has required a "good
faith effort to notify all qualified individuals in the
geographic area." Id. This is necessary to provide equal access
to the position. In certain circumstances, the comparison of fees
charged for a service was sufficient. EC-COI-83-56. Here,

Page 564

where the fees that constables may charge are set by statute, and
the only variables are for the portion of fees based upon travel or
photocopying, it is not logical to require a state agency to
contact several constables to compare terms. There are several
publications, such as Massachusetts Lawyer's Diary and the
Massachusetts Constable Association Directory, that contain
complete lists of eligible constables. Since all qualified
individuals would be listed, if you are contacted by a state
agency which obtained your name from such a list, the public
notice requirement will be fulfilled by this method of selection.

If you were able to comply with all of the s. 7(b)
provisions, you may provide paid constable services for a state
agency. Thus: you may not provide constable services for the
Trial Court; the state agency must contact you after using a
complete list of eligible constables; your constable services
must be provided outside of your normal working hours as a court
officer; you may not be compensated as a constable for more than
500 hours per year; the head of the contracting state agency must
file a written certification with the State Ethics Commission
that no employee of that agency is able to perform such constable
services; and you must file a full disclosure of your financial
interest with this Commission.


2. Section 23


Section 23, the standards of conduct provision, also applies
to you. Section 23(b)(2) prohibits a state employee from using or
attempting to use his official position to secure an unwarranted
privilege or exemption of substantial value[10] for himself or
another. For example, you may not use state time, resources, or
personnel to benefit yourself or another. See P.E.L. 89-4. Nor
may you use your state title or the state seal to promote or
endorse your constable services. See, e.g., EC-COI-84-127; 86-11;
92-5
(seal); 92-39; 85-41 (a court officer may not perform
constable duties during court sessions, may not serve capiases in
cases where the constable must appear in the court with the
person arrested pursuant to the capias to collect her fee).
Additionally, you are prohibited from "soliciting potential
clients for your constable services by referring to your
qualifications as a state employee" and you may not solicit
individuals who have business in the court house where you are
working as a court officer. EC-COI-85-41. Solicitation includes
oral representations, passing out business cards, and mailings
directed to specific individuals.

Finally, s. 23(e) permits a head of a state agency to
establish and enforce additional standards of conduct beyond
those contained in the conflict law. G.L. c. 268A, s. 23(e).
While an agency's own standards of conduct may not be any less
restrictive than those found in G.L. c. 268A, the Commission will
defer to rulings or standards established by the agency itself
which give guidance to its employees in the area of conflict of
interest and which are consistent with the principles and aims of
s. 23. EC-COI-93-23; 84-55.

In conclusion, you may provide constable services for non-
state parties whether or not the state is a party or has a direct
and substantial interest in the particular matter. However, you
must obtain a s. 7(b) exemption if you wish to receive
compensation as a constable from state agencies. Finally, you may
not use state time or resources to effectuate your constable
duties, you may not use your qualifications as a court officer to
solicit potential clients, and you may not solicit individuals
who have business in the court house where you are working as a
court officer.

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


[1] We note that s. 78 of the Court Reform Act amends G.L.
c. 211B, s. 9 by adding s. 9A, which states in pertinent part,
"[c]ourt officers . . . may serve warrants, mittimuses, precepts,
and orders and processes of the court, and shall perform such
other duties as chief administrative justices for administration
and management may assign." The language in G.L. c. 211B, s. 9A
does not specifically authorize a court officer to accept a post
as a constable, but rather appears to permit a court officer, as
part of her official duties, to serve certain types of court
documents only at the direction of the Chief Administrative
Justices for Administration and Management. This section does not
address the issue of whether a court officer may serve as a
constable. We advise you to seek further guidance concerning the
interpretation of G.L. c. 211B, s. 9A from the CJAM and/or the
Director of Security of the Trial Court.

[2] A process server must determine that the process which
he is called upon to execute is in due form and issues from the
court which has jurisdiction of the subject. Morrill v. Hamel,
148 N.E.2d 283 (1958). Additionally, service must be served in
the manner prescribed by law.

[3] Section 4(a) of G.L. c. 268A prohibits a state employee,
otherwise than as provided by law for the proper discharge of
official duties, from receiving compensation from anyone other
than the Commonwealth or a state agency in connection with a
particular matter in which the state is a party or has a direct
and substantial interest. Section 4(c) prohibits a state
employee, otherwise than in the proper discharge of his official
duties, from acting as agent or attorney for anyone other than
the Commonwealth or a state agency in connection with any
particular matter in which the Commonwealth or a state agency is
a party or has a direct and substantial interest.

Page 565

The Commission stated in EC-COI-84-143 that s. 4(a) would prevent
a state employee from receiving compensation from private
individuals as a Bail Commissioner in connection with criminal
cases. However, we subsequently determined that since such fees
were provided for by law, no issues would be raised under s. 4(a).
See Quinn v. State Ethics Commission, 401 Mass. 210 (1985). Since
fees for constable services are provided for by statute, s. 4(a) of
the conflict of interest law will not be implicated for a state
employee who receives compensation as a constable from non-state
parties in connection with a matter in which the state is a party
or has a direct and substantial interest. Thus, you may provide
constable services for private individuals whether or not the
state is a party or has a direct and substantial interest in the
particular matter. However, issues will arise under s. 7 if you
wish to receive compensation as a constable from state agencies,
as described below.

Additionally, s. 4(c) is not implicated, as constable
services do not rise to the level of acting as an "agent". The
Commission has held that, in general, a public employee acts as
agent for the purpose of G.L. c. 268A when he speaks or acts on
behalf of another in a representational capacity. See, e.g., EC-
COI-92-25; see also, Zora v. State Ethics Commission
, 415 Mass.
640 (1993); Commonwealth v. Newman, 32 Mass. App. Ct. 148, 150
(1992). Some examples of acting as agent are: appearing before a
government agency on behalf of another, submitting an application
or other document to the government for another, or serving as
another's spokesperson. See, e.g., EC-COI-92-18, and Commission
Advisory No. 13 (Agency).


[4] "State agency", any department of a state government
including the executive, legislative or judicial, and all
councils thereof and thereunder, and any division, board, bureau,
commission, institution, tribunal or other instrumentality within
such department and any independent state authority, district,
commission, instrumentality or agency, but not an agency of a
county, city or town. G.L. c. 268A, s. 1(p).

[5] After reviewing this consolidation, we held that each
department of the Trial Court was a separate state agency for
purposes of G.L. c. 268A. EC-COI-84-86. Based upon the 1978 Court
Reorganization Act (the 1978 Act), we held that a court officer
of the Probate Court was not an employee of the entire Trial
Court. EC-COI-85-41.

[6] The CJAM has the power to transfer a court officer to
any court which needs the services of a court officer. Thus a
court officer in one department could be transferred to another
department in any county. G.L. c. 211B, s. 9.

[7] In EC-COI-84-86, we held that the Brockton District
Court was not the "same agency" as the Boston Juvenile Court for
purposes of s. 7. The new Court Reform Act does not disturb our
conclusion that those two entities are different state agencies.
Here, however, we address whether a court officer is an employee
of the department that she is assigned to, where court officers
are explicitly designated as employees of the CJAM.

[8] However, a court stenographer in a particular department
of the Trial Court, for example, is an employee of the chief
justice of that department, and is not an employee of the CJAM.
Thus, a stenographer would be an employee of that department,
rather than an employee of the entire Trial Court.

[9] Even though constables are qualified to file subpoenas
and other writs and papers, among other documents, from district
courts, superior courts, and the supreme judicial court, you may
not do so as a paid constable because you are employed by the
entire Trial Court, and would not be able to fulfill the first
requirement under s. 7(b). Additionally, since court officers may
be directed to file such documents by the CJAM under the Court
Reform Act, you would not be able to fulfill the sixth and
seventh requirements, as such service may be required as a part
of your regular duties as a court officer. However, if as a court
officer, you are directed to file such documents by the CJAM, s.
7 will not be implicated, as those tasks would be a part of your
official duties as a court officer, and will not constitute paid
constable services.

[10] Anything valued at $50.00 or more is "of substantial
value". EC-COI-93-14; Commonwealth v. Famigletti, 4 Mass.App.Ct.
584, 587 (1976); Commission Advisory No. 8.

Page 566

 

End Of Decision