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 of a 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 the job, 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.

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[1] If the position of part-time building inspector were designated as special the result herein would be the same inasmuch as a part-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. It 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