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

Page 185

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