July 6, 1988

FACTS:


You are a part-time building inspector for a town (Town), and
as such are a regular municipal employee.[1] You are also a
carpenter. You wish to receive compensation from private parties
to do occasional carpentry work in town. Specifically, you wish to
accept small contracting jobs such as building a deck.


QUESTION:


May you receive compensation from private parties to do
carpentry work in the town in which you are an employee?


ANSWER:


You may receive compensation in exchange for carpentry services
which do not require an application for a building permit or
subsequent inspection or approval by the Town. You may not,
however, receive compensation for work which does require a permit.


DISCUSSION:


An examination of the State Building Code, 780 CMR 100 et
seq.[2] indicates that residential carpentry work falls into three
categories. First is ordinary or non-structural repairs which do
not require an application for a building permit. 780 CMR 102.1.
The second category is work which includes an addition to,
alterations to or replacement of, or relocation of water
supply, sewer, drainage, drain liter, gas, soil, waste, vent or similar
piping, and electrical wiring or mechanical work, all of which
requires a permit under all circumstances. This work is customarily
referred to as "structural." 780 CMR, Article 21,[3] s. R-109.2 The
third category of work is work which is not "structural" but which
nevertheless requires a permit within the discretion given to the
town pursuant to the State Building Code. Id. The Town, pursuant
to its discretionary authority. requires an application for a
building permit to build a deck or porch. The Town will require
such building permit applications to ensure that the footprint of
the deck conforms to the local setback and side requirements of the
local zoning code, and to notify the assessing department of a
possible change of value.

The State Building Code requires inspections by the building
official to determine whether construction in progress is in
conformance with the Code. Inspections are required regarding
certain types of work specified in the Code, including foundations,
plumbing, mechanical, electrical, frame and masonry, lathe and/or
wallboard. 780 CMR, Article 21, s.R-111. Other inspections are
discretionary with the building official. Id., s.R-111.1.5. For
example, although the Town requires a permit to build a deck, it
is uncommon for the deck to be inspected subsequent to completion.

Section 17 of the conflict law generally prohibits a municipal
employee from acting as agent for, or being paid by, anyone other
than the town, in relation to any decision, determination, or other
particular matter in which the town is a party or has a direct and
substantial financial interest.

Carpentry work which requires a building permit is affected by
this section because the town has a direct and substantial interest
in the application for and the issuance of the permit, which is a
determination by the town that the work conforms to the
requirements of law, and because work done pursuant to a permit is
presumptively "in relation to" the permit.

The Commission concludes that the Town has a direct and
substantial interest in an application for, and issuance of a
building permit because the issuance of a permit is the local
building official's decision or determination that the work
complies with all relevant codes, laws, ordinances, rules and
regulations. Even in the case ofa comparatively small construction
project, such as the building of a deck, the building official has
the responsibility to determine the appropriate use of materials
and that the design meets the minimum side yard and set-backs of
the local zoning law.

The Town's interest is direct and substantial even if no
inspection is required. The fact that the town chooses not to
exercise its discretionary right to inspect in a particular case
or category of cases does not negate the interest of a town to
ensure compliance with the State Building Code and other relevant
laws, ordinances or regulations. There is nothing in the State
Building Code which would prohibit a town from using its
discretionary authority to inspect specific nonstructural work if
for any reason the lawfulness of that work were called into
question. A town always retains jurisdiction to determine that work
is in accordance with the specifications stated on the application
for a building permit, and may issue a cease and desist order if
the work does not so comply. 780

Page 196

CMR 122.1. Therefore, there is no substantial basis for
distinguishing between work pursuant to a required permit which
results in a subsequent inspection from work for which the town
requires a permit but does not routinely inspect. The direct and
substantial interest of the town is determined by the requirement
of issuing a permit, and not by the practice of inspection.

The more difficult issue is whether carpentry work done pursuant
to the permit is "in relation to" the permit, and thus prohibited
under s.17. In EC-COI-87-31, the Commission concluded that a
municipal official could not be paid privately to install septic
systems because the installation was in relation to the septic
permit and subsequent inspection. We held that where the official
operated his own septic business and was the only installer on
thejob, there was a presumption that the work he performed was in
relation to the permit. In that opinion, however, we recognized
that certain facts may overcome the presumption that all work done
pursuant to a permit is in relation to the permit.

For example, a municipal employee, who is one of many
privately paid employees or independent contractors on a major
construction project, and who has no responsibility for
dealing with the town on any matter, might not be considered
to be privately compensated "in relation to" the permit which
allows the construction. Furthermore, certain permits which
authorize a major construction project (e.g., a zoning
municipal reuse permit to convert a school building into
condominiums) will not necessarily render all work done on the
project, e.g., interior painting, "in relation to" the permit.

Applying the principles of 87-31 to your situation leads to the
conclusion that s.17 would not permit you to engage in the
carpentry work you contemplate. You have indicated that you would
not be part of a crew but would be doing the work yourself. While
it might not be necessary for you to pull the permit yourself, you
presumably would be the person who would have to deal with any town
official who raised an issue with the permit on the work done
pursuant to the permit. Therefore, it is highly unlikely you could
overcome the presumption established in 87-31.

The Commission is aware that the General Court has permitted
certain trade persons to engage in licensed work within their own
towns irrespective of their own status as municipal employees. See,
e.g., G.L. c. 66, s.32 municipal inspector, wires; G.L. c. 142,
s.13 - plumbing and gas fitting inspector. However, the General
Court has not promulgated any similar legislation pertaining to
part-time local building inspectors.[4]

Therefore, we conclude you may not receive compensation for
carpentry work in your town if the town requires an application for
a building permit for the structure you intend to work on. This
prohibition will continue to apply to you until and unless you are
able to structure any private employment arrangement in a way that
eliminates any possibility of having to deal with town officials
in connection with the work performed.

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

[1] If the position of part-time building inspector were designated
as special the result herein would be the same inasmuch as apart-
time building inspector has official responsibility for the
enforcement and administration of the State Building Code and
permits issued pursuant to that Code.

[2] The Code, comprised of 22 articles, is the set of comprehensive
regulations to which all construction must adhere. Is stipulates
requirements for structural loads, materials, lighting.
ventilation, fire protection, egress, energy conservation, and many
other building topics, including responsibilities for
administration and enforcement and procedures to be followed in
filing appeals. local building officials enforce the code as is
applies so all buildings within their jurisdictions with the
exception of state owned buildings which are the responsibility of
state building inspectors.

[3] Article 21 is referred to as The One and Two Family Dwelling
Code and is published separately.

[4] We note that s.107.5 of the State Building Code precludes a
full-time building inspector from engaging in construction work
within their own community. While the section does not specifically
address part-time building inspectors, it goes on to state: 'Nor
shall any officer or employee associated with the building
department engage in any work which conflicts with his official
duties or with the interests of the department." we believe the
application of s.17 of G.L c. 268A to your situation, as indicated
in this opinion, conforms to the principles stated in s.107.5.

End Of Decision