November 16, 1987

 

FACTS:

You were recently hired to serve on a part-time basis as the wiring inspector for a Town (Town). You also are a licensed electrician and manage an electrical contracting business in the Town. During the course of your performing private electrical services, your work is customarily subject to inspection by the wiring inspector.

Following your appointment, the Town Board of Selectmen voted to accept the provisions of St. 1981, c. 809. The act provides as follows:

In a city, town or district which accepts this section, a licensed electrician who is appointed inspector of wires may practice for hire or engage in the business for which licensed under the applicable provisions of chapter one hundred and forty-one while serving as such inspector; provided, however, that within the area over which he has jurisdiction as wiring inspector he shall not exercise any of his powers and duties as such inspector, including those of enforcement officer of the state electrical code, over wiring or electrical work done by himself, his employer, employee or one employed with him.Any such city, town or district may in the manner provided in the preceding section appoint an assistant inspector of wires who shall exercise the duties of inspector of wires, including of enforcement officer of the state electrical code, over work so done. Said assistant inspector may act in absence or disability of the local inspector and for his services shall receive like compensation as the city, town or district shall determine.

This section shall take effect upon its acceptance in a city, by vote of the city council, subject to the provisions of the charter of such city; in a town, by vote of the board of selectmen; in a municipality having a town council form of government, by a vote of the town council, subject to the provisions of the charter of such municipality and in a district, by vote as above provided of the cities and towns of the districts.
 

QUESTION:

Can you serve as Town wiring inspector and also maintain your private electrical business?
 

ANSWER:

Yes, subject to the conditions described below.
 

DISCUSSION:

In this opinion, we are asked to determine whether the General Court, by enacting St. 1981, c.809, intended to permit a town to supercede the prohibitions of s. 17 with respect to the private electrical work of town wiring inspectors. We conclude that it so intended.

In your capacity as wiring inspector, you are a municipal employee for the purposes of G.L. c. 268A. Section 17 of G.L. c. 268A primarily regulates the outside business activities of municipal employees. Under this section, a municipal employee may not receive compensation from a private party or act as agent for the party in connection with any submission, decision or other particular matter [1] in which the town or a town agency is either a party or has a direct and substantial interest. As the Commission recently stated in the Decision and Order, In the Matter of Robert Sullivan, 1987 Ethics Commission 320 (October 30,1987), "the basic
principle set forth by s.17 is that public officials should not in general be permitted to step out of their official roles to assist private entities or persons in their dealings with the government".

Ordinarily, s.17 would prohibit you from performing private electrical work in the Town where the work would be subject to inspection by the Town wiring inspector, inasmuch as you would be receiving compensation in relation to a permit or determination to which the Town is a party. See, EC-COI-87-31 (chairman of board of health violates s. 17 by installing septic systems which could only be installed pursuant to a permit from his agency). In your case, your work would be in connection with a permit issued by your department. Consequently, you would be unable to maintain your electrical practice (within the Town) while serving as wiring inspector, unless you qualify for a statutory exemption from s. 17. Based upon our review of St. 1981, c. 809, and the legislative history surrounding its enactment, we conclude that the General Court intended to exempt town wiring inspectors from the s. 17 prohibitions which would have otherwise prohibited their private electrical practice in the same town.

In the absence of any specific reference to G.L. c. 268A, s.17 in c. 809, we are obligated to construe c. 809 in light of its language and the presumed intent of the legislature which enacted it Standing alone, c. 809 is not ambiguous; its plain language authorizes a municipal

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wiring inspector to practice for hire or engage in the business of licensed electrician while serving as wiring inspector, subject to certain conditions which allow for the inspector's private electric work to be inspected by a different inspector. The title of c. 809, "An act permitting a local inspector of wires to work as an
electrician and providing for the appointment of an assistant to such inspector to inspect his work", also reflects a legislative intent to authorize wiring inspectors to practice in their communities.

The legislative history of c. 809 also indicates that the legislature intended to create an exemption to the requirements of s.17. The General Court enacted c. 809 in 1981 in response to two independent state agency administrative proceedings. The first was the enactment in 1980 by the Board of State Examiners of
Electricians of a regulation prohibiting a local wiring inspector from practicing for hire or engaging in the electrician business within the same area over which the individual serves as wiring inspector. 237 CMR 4.08 (effective January 30, 1980). The regulation apparently created difficulty for smaller communities seeking to recruit wiring inspectors. Five related bills were thereafter filed with the General Court in 1981 to either repeal or modify the effect of the new regulation. See, 1981 Senate Doc. Nos. 903,938,941,942 and House Doc. No. 1840. The testimony before the Joint Committee on Local Affairs in 1981 emphasized the administrative difficulties encountered by towns as a result of the flat prohibition on the private electrician practice for wiring inspectors. The Committee was also aware that the Ethics Commission had recently imposed a civil penalty on a Salisbury wiring inspector who has performed electrical installations in the same town and had inspected his own work. See, In the Matter of Andrew Bayko, 1981 Ethics Commission 34 (February 9,1981).

The Local Affairs Committee's recommended draft, 1981 House Doc. No. 6720, was adopted by both legislative branches and enacted in unchanged form as c. 809 as a local acceptance bill. When viewed in its entirety, the legislative history of c. 809 confirms that, while not expressly referencing G.L. c. 268A, s.17, the General Court intended wiring inspectors to perform private work in their communities.

Finally, our conclusion is also based on principles of statutory construction which give preference, in the event of an ambiguity between two statutes, to the later, more specific enactment. Pereira v. New England LNG Co., Inc., 364 Mass. 109, 118-119 (1973). EC-COI-83-1. Were we to hold otherwise and apply the prohibitions of s. 17 to wiring inspectors, we would be nullifying the legislative intent in enacting c. 809. We will not assume that the General Court intended by passing c. 809 to engage in a futile act. Commonwealth v. Wade, 372 Mass. 91, 95 (1977). Accordingly, we construe the provisions of c. 809 to permit your engaging in a private electrician practice in the Town, notwithstanding the general prohibition contained in G.L. c. 268A, s.17. [2]

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[1] "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.

[2] Although you are exempt from the prohibitions of s. 17. you remain subject, as a municipal employee, to other restrictions in both your official and private capacity. Enclosed is a summary reviewing these other restrictions, and you may renew your opinion request if you have any questions about the application of these
provisions.

End Of Decision