*Pursuant to G.L. c. 268B, §3(g), the requesting person has consented to the publication of this opinion with identifying information.

FACTS:

You are the Corporation Counsel for the City of Fall River.  You state that some time prior to October 23, 1986, Michael Niewola, the Sealer of Weights and Measures for the City of Fall River, was arraigned on the charges of willful and malicious burning of personal property, false reporting of a stolen motor vehicle and accessory before the fact to larceny of a motor vehicle. On October 23, 1986, Michael Niewola was suspended pursuant to G.L. c. 268A, §25.  The written notice of that suspension listed the arraignment on the above three charges as the reason for the suspension pursuant to §25.  Michael Niewola was indicted, on November 14, 1986, on all three of the above charges as well as the charge of operating under the influence of alcohol. He was subsequently found not guilty of the charges cited in the written notice of October 23, 1986, but was found guilty of operating under the influence of alcohol.

You have also stated that Niewola, as Sealer of Weights and Measures, was assigned a City of Fall River vehicle which he was permitted to take to his home in Fall River at the end of each workday.  This permission was conditioned on the understanding that city vehicles are to be used solely for city business.  Michael Niewola’s charge of driving under the influence of alcohol involved his operating his city vehicle after hours while under the influence of alcohol.

QUESTION:

Is Michael Niewola, the Sealer of Weights and Measures for the City of Fall River, entitled to receive all compensation or salary due him for the period of his suspension pursuant to G.L. c. 268A, §25?

ANSWER:

Yes, subject, however, to the resolution of any administrative action by his appointing official under G.L. c. 268A, §23(b) (2).

DISCUSSION:

Michael Niewola, as Sealer of Weights and Measures for the City of Fall River, is a municipal employee as defined in the conflict of interest law, G.L. c. 268A, §1(g).  Section 25 of G.L. c. 268A, in pertinent part, states that:

An officer or employee of a county, city, town or district, howsoever formed, including, but not limited to, regional school districts and regional planning districts, or of any department, board, commission or agency thereof, may during any period such officer or employee is under indictment for misconduct in such office or employment or for misconduct in any elective or appointive public office, trust or employment, at any time held by him, be suspended by the appointing authority, whether or not such appointment was subject to approval in any manner.  Notice of said suspension shall be given in writing and delivered in hand to said person or his attorney, or sent by registered mail to said person at his residence, his place of business, or the office or place of employment from which he is being suspended.  Such notice so given and delivered and sent shall automatically suspend the authority of such person to perform the duties of his office or employment until he is notified in like manner that his suspension is removed.  A copy of any such notice together with an affidavit of service shall be filed as follows:  In the case of a town, with the town clerk; in the case of a regional school district, with the secretary of the regional school district; and in the case of all other districts, with the clerk of the district.

If the criminal proceedings against the person suspended are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, this suspension shall be forthwith removed, and he shall receive all compensation or salary due him for the period of his suspension, and the time of his suspension shall count in determining sick leave, vacation, seniority and other rights, and shall be counted as creditable service for purposes of retirement.

It requires that the officer or employer suspended under this section must be under indictment for misconduct in such office or employment or for misconduct in any elective or appointive public office, trust or employment at any time held by that individual.  The phrase "without a finding or verdict of guilty on any of the charges on which he was indicted" refers to the "indictment for misconduct in such office or employment" found earlier in the section.  To read this language otherwise would be to broaden the scope of permissible basis for a §25 suspension to any indictable offense.  It has been noted that c. 30, §59, (a parallel provision for state employee or officers) is by its terms inapplicable to offenses that have no relation to the office or position held by the indicted individual at the time the criminal acts in question allegedly were committed.  The statute specifies misconduct in such (emphasis in original) office or employment, thus indicating it cannot simply be applied indiscriminately to all offenses committed by an individual while he is an official, or employed by the Commonwealth." (A.G. Op. 3/30/64).  We read the language of G.L. c. 268A, §25 in the same way.  The real question, as a result, is whether Michael Niewola's indictment and conviction for driving while under the influence of alcohol is properly considered being under indictment for misconduct in his office as Sealer of Weights and Measures for the City of Fall River.1/

The breadth of the term “misconduct in office" hinges on the establishment of a direct relationship between the misconduct and the office.  Perryman v. School Committee of Boston, 17 Mass. App. Ct. 346, 348 (1983).  No such relationship has been established in Michael Niewola's case.  The fact that he was operating a city vehicle after hours while under the influence of alcohol is not in and of itself sufficient to make the offense misconduct in office within the meaning of the statute.  In Tobin v. Sheriff of Suffolk County, 377 Mass. 212 (1979) the Supreme Judicial Court held that a court officer could not be suspended under §25 because courthouse business was not involved in allegations of involvement in a kick-back scheme tied to the awarding of city contracts where the offensive conduct occurred on the premises of the courthouse.  Similarly, City of Fall River business was not involved in the allegations of Michael Niewola's having driven under the influence of alcohol, despite his use of a city vehicle to do so.  Indeed, Michael Niewola was off-duty when the offense occurred.  In addition, we do not find the position of Sealer of Weights and Measures to be sufficiently analogous to that of a public school teacher or police officer or any other position of special public trust so as to support the conclusion that any off-duty conduct resulting in indictment constitutes misconduct in office.  See e.g. Dupree v. School Committee of Boston, 15 Mass. App. 535 (1983).  Michael Niewola's indictment and conviction for driving while under the influence of alcohol is not properly considered as being under indictment for misconduct in his office as Sealer of Weights and Measures for the City of Fall River.  Accordingly, Michael Niewola is entitled to receive all compensation of salary due him for the period of his suspension pursuant to G.L. c. 268A, §25.

We note that this opinion is limited to the issue of compensation under G.L. c. 268A, §25. Under G.L. c. 268A §23(b) (2), a municipal employee may not use his official position to secure for himself an unwarranted privilege of substantial value.  In a recent Commission action, a Boston fire department employee was fined $500 by the Commission and also was required to repay

$500 to the city for the economic advantage derived by his use of a city vehicle for personal purposes in violation of §23.  See, In the Matter of Dennis Flynn, 1985 Ethics Commission 245. If the City of Fall River determines that Mr. Niewola's use of a city vehicle was an unwarranted use in violation of §23(b)(2), appropriate administrative action as is warranted may be taken by the head of the municipal agency.  See, G.L. c. 268A, §23(e).

 

DATE AUTHORIZED:  June 14, 1988

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1/ Although the facts in the case also raise two procedural questions about the adequacy of the §25 notice given (omitting the driving while under the influence of alcohol charge) and the: timing of the §25 notice given (post-arraignment but, apparently, pre-indictment) we need not address these issues since, as a matter of substantive law, we find Michael Niewola’s offense, in this context, does not amount to misconduct in the office within the meaning of G.L. c. 268A, §25.