March 10, 1999



FACTS:


You are the Chief of the Fire Department in a town in
Massachusetts ("Town"). You have inquired on behalf of and with the
permission of two firefighters in Town regarding the application of
G.L. c. 268A, s. 17, as recently amended by St. 1998, c. 100, to
private work which each firefighter wishes to do "on the side."


"Firefighter A"


Firefighter A is a call firefighter[1/] with the Town
Fire Department. He serves as a call firefighter fewer than sixty
days per year. Call firefighters in the Town have not been
designated as "special municipal employees"[2/] Firefighter A is a
registered Professional Engineer (PE) in Massachusetts. In addition
to being a call firefighter, he is self-employed as a consulting
engineer. Among the work he performs for clients is the design of
fire protection systems.[3/] For example, an architect or
contractor who is constructing or renovating a building might
contract with him to do the design and drawings for the building's
fire suppression system. As the consulting engineer on such a
project, he does not personally apply for any permits. However, his
design work is part of the materials submitted (whether by the
contractor, architect or owner) to the local Building Department
for a building permit.[4/] Pursuant to 780 CMR s. 903.2, the
Building Department submits the plans to the Fire Department and
the Fire Department must approve the plans before the Building
Department may issue a permit.[5/] After construction, a
Certificate of Occupancy may not be issued until the Professional
Engineer responsible for designing the system certifies that the
fire protection systems have been installed in accordance with the
approved design.[6/] Firefighter A wishes to design fire protection
systems for construction within the Town.


"Firefighter B"


Firefighter B is a full-time firefighter employed by the
Town. Firefighter B also has a license to perform plumbing and
heating work, which he does during his own time.

Recently, Firefighter B has received requests to replace
boilers. To expand his business, he enrolled in a

Page 728


class on oil burner installation and, upon completion of that
class, passed the Massachusetts Department of Safety's test to be
licensed to perform such work. As a result, he is now licensed to
perform oil burner work. See G.L. c. 148, s. 1 OD.

Installation or alteration of fuel oil burning equipment
requires a permit issued by the local Fire Department. 527 CMR s.
4.00. As a firefighter, Firefighter B is not involved in inspecting
oil burners. Most of his oil burner work would be in private
residences in the Town.


QUESTIONS:


1. As a Town call firefighter, and a regular municipal
employee, may Firefighter A design for compensation fire
protections systems for installation in the Town?

2. As a Town full-time firefighter, may Firefighter B
perform oil burner work in the Town which requires permits issued
by the Town Fire Department?


ANSWERS:


1. No, because in doing so Firefighter A would be receiving
compensation from someone other than the Town in relation to a
particular matter (the building permit for construction of the
fire protection system) in which the Town is a party or has a direct
and substantial interest, in violation of G.L. c. 268A, s. 17(a).
The most recent amendment to s. 17 does not alter this result. A
reading of s. 17 which allowed co-workers of Firefighter A to
approve or disapprove his fire protection drawings would undermine
the clear statutory purpose of the amendment.

2. No, because in doing so Firefighter B would be receiving
compensation from, and acting as agent for, someone other than the
Town in relation to a particular matter (the permit for the oil
burner work) in which the Town is a party or has a direct and
substantial interest, in violation of G.L. c. 268A, s. 17(a) and
(c). The most recent amendment to s. 17 does not alter this result,
because that amendment does not apply to employees seeking permits
from the agency by which they are employed.


DISCUSSION:


"Firefighter A"


Section 17(a) prohibits a municipal employee from
receiving compensation[7/] from anyone, other than the
municipality, in relation to a particular matter[8/] in which the
municipality is a party or has a direct and substantial interest.
In addition, s. 17(c) prohibits a municipal employee from acting as
agent[9/] or attorney for anyone other than the municipality in any
claim against the municipality or for anyone in connection with any
particular matter in which the municipality has a direct and
substantial interest. In general, any "particular matter" that
involves municipal action, such as a permit granted by a
municipality, is considered to be of direct and substantial
interest to the municipality. Commonwealth v. Canon, 3 73 Mass.
494, 498 (1977); EC-COI-88-21. Section 17 is based on the principle
that "one cannot serve two masters." These provisions, which
prohibit municipal employees from providing assistance to private
parties regarding matters of direct and substantial interest to the
municipality, have been called "the essence of conflict-of-interest
legislation." W. G. Buss, The Massachusetts Conflict of Interest
Law: An Analysis
, B. U. Law Rev. 299, 322 (1965).

A significant amendment to s. 17 was recently enacted
which affects the type of private work some municipal employees may
do "on the side." In 1998, the Legislature added the following
provision to s. 17:

This section shall not prevent a municipal employee from
applying on behalf of anyone for a building, electrical,
wiring, plumbing, gas fitting or septic system permit,
nor from receiving compensation in relation to any such
permit, unless such employee is employed by or provides
services to the permit-granting agency or an agency that
regulates the activities of the perm it-granting agency.

G. L. c. 268A, s. 17 as amended by St. 1998, c. 100 (H. 5102)
(effective May 1, 1998)


This exemption allows a municipal employee to apply for
and, more significantly in the case of Firefighter A, to receive
compensation in connection with a permit, so long as the employee
is not employed by the permit granting agency or an agency that
regulates the activities of the perm it-granting agency.

As an initial matter, we believe that Firefighter A, by
designing for compensation fire protection systems to be installed
in the Town, is receiving compensation "in relation to" the
building permit. Although, Firefighter A does not personally apply
for the permit or install the system, his design work is undertaken
with the knowledge that it will be submitted to the Town as a
necessary part of the permit application. See, 780 CMR s. 903.1.3.
He is further aware that his designs must comply with applicable
code requirements and be approved by the Fire Department. In
essence, his work is a necessary part of the permit application and
would likely not exist apart from it. We therefore conclude that
his design work is "in relation to" the building permit.

We must next consider the questions of whether
Firefighter A is employed by the permit-granting agency or an
agency which regulates the activities of the permit granting
agency. Read literally, the phrase "permit-grant-

Page 729


ing agency" would, on these facts, appear to refer to the Building
Department. However, an absolute prerequisite for the issuance of
the permit by the Building Department is the Fire Department's
"review and approval" of the fire protection design documents. 780
CMR s. 903.2. Although the Fire Department may not be the permit
granting agency, its approval is legally necessary in order for the
Building Department to issue the perm it. Because the Fire
Department shares with the Building Department approval power for
the type of building permit at issue here, the Fire Department may
properly be considered, on these facts, the functional equivalent
of a permit-granting agency.[10/] As explained below, we therefore
conclude that because Firefighter A is employed by the Fire
Department, he may not design for compensation fire protection
systems for installation in the Town.

We believe that this view is consonant with the
underlying purposes of the recent amendment to s. 17. The amendment
was intended to moderate some of the harsh results of the
application of s.s. 17(a) and (c) to municipal employees. For
example, prior to the amendment, a firefighter "moonlighting" as a
carpenter could not apply for a building permit from the Building
Department to build a deck for a Town resident. By applying for
such a permit, the firefighter would have been "acting as agent"
for someone other than the Town in a matter of direct and
substantial interest to the Town, in violation of s. 17(c). See,
EC-COI-88-9
.

The amendment altered this state of affairs by allowing
a municipal employee to apply for a permit, or be paid in relation
to one, so long as the employee's own agency is not the agency
which issues the permit, and is not an agency which regulates the
activities of the permit-issuing agency. This serves to prevent the
conflict of interest which would arise if, for example, an
employee's permit application were to be reviewed by a co-worker,
subordinate or superior in his own agency. That is in all essential
respects the case here. Because the Fire Department's approval is
required for any building permit involving a fire control system,
Fire Department colleagues of Firefighter A would necessarily
review and approve (or disapprove) his designs. We believe that
this is just the type of conflict which s. 17, including the
amendment, seeks to prevent.

We are mindful of the argument that because Firefighter
A is not employed by the "permit-granting agency", i.e., the
Building Department, he should be able to avail himself of the
exemption in the recent amendment to s. 17. "Ordinarily, if the
language of the statute is plain and unambiguous it is conclusive
as to legislative intent." Sterilite Corporation v. Continental
Casualty Co.
, 397 Mass. 837, 839. Statutory interpretation also
requires, however, a consideration of such factors as "the evil or
mischief toward which the statute was apparently directed",
Meunier's Case, 319 Mass. 421, 423 (1946); the underlying purpose
of the legislation, in that "the purpose and not the letter of the
statute controls", Walsh v. Ogorzalek, 372 Mass. 271, 274 (1977);
and the "fair import" of the statute, Thatcher v. Secretary of
Commonwealth
, 250 Mass. 188, 191 (1924). As the Sterilite court
opined, "time and again we have stated that we should not accept
the literal meaning of the words of a statute without regard for
that statute's purpose and history." Sterilite, supra, at 839.

A consideration of the totality of the circumstances i n
this matter, including the fact that the Fire Department's approval
of Firefighter A's design work is a legal prerequisite to the
approval of the building permit, leads us to conclude that the
legislature did not intend to allow a municipal employee to do
outside work which would be reviewed by his own agency simply
because that agency's name does not appear at the top of the permit
to be granted. Therefore, we conclude that the amendment does not,
on these facts, exempt a municipal employee from the application of
s.s. 17 (a) and (c). Accordingly, Firefighter A may not receive
compensation for the design of a fire safety system to be installed
in the Town, where such installation is subject to a building
permit which must be approved by the Fire Department based on its
review of the design plans.[11/] As discussed below, to the extent
that s.s. 17 (a) and (c) may create difficulties for a town
attempting to attract and retain call firefighters, such
difficulties may be eliminated or ameliorated by the Board of
Selectmen designating call firefighters as special municipal
employees.


Analysis If Call Firefighters Are Designated as "Special Municipal Employees"


The position of call firefighter is not currently
designated as a "special municipal employee"[12/] in the Town,
although it appears that the position is likely eligible to be so
designated by the Board of Selectmen. We will, therefore, discuss
the issues raised as they would apply to Firefighter A if he became
a special municipal employee.

In general, a special municipal employee is an employee
who "occupies a position for which no compensation is provided or
which, by its classification in the municipal agency involved or by
the terms of the contract or conditions of employment, permits
personal or private employment during normal working hours, or
unless he in fact does not earn compensation as a municipal
employee for an aggregate of more than eight hundred hours during
the preceding three hundred and sixty-five days" and
whose position has been officially designated by the Board of
Selectmen as that of "special municipal employee." G.L. c. 268A, s.
I (n).

The conflict of interest statute establishes exemptions
or other provisions applicable only to special municipal employees
(or to special state or special county employees.) Such an
exemption exists in s. 17:

Page 730


"A special municipal employee shall be subject to
paragraphs (a) and (c) only in relation to a particular
matter (a) in which he has at any time participated as a
municipal employee, or (b) which is or within one year
has been a subject of his official responsibility, or (c)
which is pending in the municipal agency in which he is
serving. Clause (c) of the preceding sentence shall not
apply in the case of a special municipal employee who
serves on no more than sixty days during any period of
three hundred and sixty-five consecutive days."

This exemption thus provides that a special municipal
employee may, not withstanding s.s. 17(a) and (c), receive
compensation from someone other than the municipality, or act as
agent for someone other than the municipality, in matters in which
the municipality is a party or has a direct and substantial
interest, if certain conditions are met. In the case of Firefighter
A, clause (c) of the exemption is the relevant condition which must
be met.[13/]

That clause states that s.s. 17(a) and (c) still apply to a
special municipal employee regarding a particular matter pending in
employee's own municipal agency, unless that special municipal
employee serves sixty or fewer days in any one year period. Because
permits which are issued by or require the approval of the Fire
Department are "pending in the municipal agency" in which a
firefighter is serving, a firefighter who is a special municipal
employee would not be permitted to receive compensation in
connection with such a permit, or act as agent in connection with
such a permit, unless the firefighter serves "on no more than sixty
days during any period of three hundred and sixty-five days."

Firefighter A states that he works significantly fewer
than 60 days per year as a call firefighter. Therefore, if call
firefighters become classified by the Board of Selectmen as special
municipal employees of the Town, he may work in his private
capacity as an engineer on matters requiring a permit from (or a
permit sign-off from) the Town Fire Department, so long as he
continues to work as a call firefighter on no more than 60 days in
any 365 day period, and he does not as a municipal employee
participate in or have official responsibility for the particular
matter of the permit or permit sign-off.


"Firefighter B"


As a full-time firefighter, Firefighter B is a municipal
employee[14/], subject to the conflict of interest law. As
described in detail below, the oil burner work he seeks to do
within the Town will be prohibited under s. 17 of G. L. c. 268A.

The same general principles discussed above regarding
Section 17 apply to Firefighter B. A permit the Fire Department
issues for oil burner work is a particular matter of direct and
substantial interest to the Town. Commonwealth v. Canon, 373 Mass.
494, 498 (1977); EC-COI-88-21.

The recent amendment to s. 17, discussed above, affects
the types of private work Firefighter B might do "on the side" but
does not allow him to pull permits from his own agency, the Fire
Department. Although there may be some question as to whether an
oil burner installation permit falls into any of the categories of
permits listed in the amendment(i.e., "building, electrical,
wiring, plumbing, gas fitting, or septic system"), it is not
necessary to reach that issue. This is so because even if an oil
burner permit were to be considered, for example, a building,
electrical or wiring permit, this exemption expressly prohibits an
employee from receiving compensation in relation to permits his own
agency issues. Therefore, in any event, this exemption does not
apply to Firefighter B because the permit for oil burner
installation is issued by his employer, the Fire Department. Thus,
the portions of the conflict statute applicable to these facts are
s.s. 17(a) and (c). Those sections prohibit Firefighter B from
performing oil burner installation work in the Town because he
would be receiving compensation and/or acting as agent in relation
to a particular matter (the permit) in which the Town is a party or
has a direct and substantial interest.

Please note that the recently-enacted exemption set forth
above expressly allows Firefighter B to pull other permits, for
example, plumbing or gas fitting permits, as long as the
permit-granting agency is not the Fire Department.[15/] In
addition, s. 17 does not apply to Firefighter B pulling permits in
towns other than the Town because such permits would not be
"particular matters" of "direct and substantial interest" to the
Town.

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

[1/] Call firefighters are called to work for a particular
incident, as required. They are paid an hourly rate for the actual
time worked.

[2/] "Special municipal employee" is defined as " a municipal
employee who is not a mayor, a member of the board of aldermen, a
member of a city council, or a selectman in a town with a
population in excess of ten thousand persons and whose position has
been expressly classified by the city council, or board of aldermen
if there is no city council, or board of selectmen, as that of a
special employee under the terms and provisions of this chapter;
provided, however, that a selectman in a town with a population of
ten thousand or fewer persons shall be a special municipal employee
without being expressly so classified. All employees who hold
equivalent offices, positions, employment or membership in the same
municipal agency shall have the same classification; provided,
however, no municipal employee shall be classified as a "special
municipal employee" unless he occupies a position for which no
compensation is provided or which, by its classification in the
municipal agency involved or by the terms of the contract or
conditions of employment, permits personal or private employment
during normal working hours, or unless he in fact does not earn
compensation as a municipal employee for an aggregate of more than
eight hundred hours during the preceding three hundred and
sixty-five days.

Page 731


For this purpose compensation by the day shall by considered as
equivalent to compensation for seven hours per day. A special
municipal employee shall be in such status on days for which he is
not compensated as well as on days on which he earns compensation.
All employees of any city or town wherein no such classification
has been made shall be deemed to be "municipal employees" and shall
be subject to all the provisions of this chapter with respect
thereto without exception."' G.L. c. 268A,

[3/]"Fire protection system" is defined as "[d]evices
equipment and systems used to detect a fire, activate an alarm,
suppress or control a fire, or any combination thereof." 780 CMR s.
902. 1. In general, all fire protection systems must be designed by
a registered professional engineer and bear the engineer's original
stamp and signature. 780 CMR s. 903.1.3

[4/] The engineer "shall be responsible for the review and
certify that all shop drawings conform to the approved fire
protection construction documents as submitted for the building
permit and approved by the building official." 780 CMR s. 903.1.3

[5/] ".....the building official shall transmit one set of the
fire protection construction documents and building construction
documents to the head of the fire department or his designee for
review and approval . . ." 780 CMR s. 903.2.

[6/] The certification must state that "the fire protection
systems have been installed in accordance with the approved fire
protection construction documents and that he has reviewed the shop
drawings for conformance to [the applicable regulations] and has
identified deviations if any. . ." 780 CMR s. 903.4.

[7/] Compensation, any money, thing of value or economic
benefit conferred on or received by any person in return for
service rendered or to be rendered by himself or another." G.L. c.
268A, s. 1 (a).

[8/] "Particular matter" is defined as 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." G.L. c. 268A, s. 1(k).

[9/] The State Ethics Commission has concluded that "the
distinguishing factor of acting as agent within the meaning of the
conflict law is acting on behalf of some person or entity, a factor
present in acting as spokesperson, negotiating, signing documents
and submitting applications." In re Sullivan, 1987 SEC 312,
314-315; See also, In re Reynolds, 1989 SEC 423,427; Commonwealth
v. Newman
, 32 Mass. App. Ct. 148, 150 (1992).

[10/] In addition, although the Fire Department's approval is
required in order for the Building Department to issue a building
permit under these circumstances, we do not believe that the Fire
Department therefore "regulates" the Building Department within the
meaning of the statute. The word "regulate" is not defined in G.L.
c. 268A. We have said that "regulate" means to govern or direct
according to rule or bring under the control of constituted
authority, to limit and prohibit, to arrange in proper order, and
to control that which already exists." EG COI-83-158 (from Black's
Law Dictionary, 5th ed. West, 1979); EC-COI-91-9. The issue here is
whether the necessity of the Fire Department sign-off on the
building permit for a fire protection system is sufficient to deem
the Building Department "regulated" by the Fire Department. We have
distinguished "those ... agency relationships which have an
indirect, incidental effect on the ... agency's activities from
those relationships where one agency has determinate or regulatory
authority over the other." EC-COI-85-80. We conclude that the facts
before us do not present a situation in which the Fire Department
has "regulatory authority- over the Building Department.

[11/] He is free to design for compensation fire protection
systems for installation in towns other than the town in which he
is a firefighter.

[12/] See definition in footnote 2, above.

[13/] Clauses (a) and (b) of the exemption concern municipal
employees who in their official capacities either participate in or
have official responsibility for a particular matter. Since
Firefighter A does not participate in or have official
responsibility for the Fire Department's review of his own private
design drawings, these provisions are inapplicable to him.

[14/] "Municipal employee, a person performing services for or
holding an office, position, employment or membership in a
municipal agency, whether by election, appointment, contract of
hire or engagement, whether serving with or without compensation,
on a full, regular, part-time, intermittent, or consultant basis,
. . ." G.L. c. 268A, s. 1 (g).

[15/] See, however, the discussion above regarding Firefighter
A and the interpretation of the phrase "permit-granting agency."

Page 732



End of Decision