May 20, 1986

All identifying information has been deleted from this opinion as required by Chapter 268B, section 3(g).

FACTS:

You are both the full-time police chief and an appointed constable in the same town.

QUESTION:

Does the state's conflict of interest law, G.L. c. 268A, permit you to serve in both positions?

ANSWER:

No.

DISCUSSION:

As a police chief, you are considered a municipal employee for purposes of the conflict of interest law, and are consequently subject to the provisions of that law. G.L. c. 268A, s. 1 et seq. Section 20 prohibits a munic­ipal employee from having a financial interest, directly or indirectly, in a contract made by the same municipali­ty. You clearly have a financial interest in your constable appointment since you receive fees for performing con­stable duties. The issue remaining is whether serving as a constable results in a contract between the appointee and the town within the meaning of G.L. c. 268A, s. 20.

The Commission recently decided a similar "issue at the state level. See In the Matter of Robert J. Quinn, 1986 Ethics Commission . The issue in Quinn was whether serving as a bail commissioner resulted in a contract between the appointee and the Superior Court [the appointing authority] within the meaning of G .L. c. 268A, s. 7 [the state equivalent to s. 20]. In Quinn, the Commission concluded, inter alia, that serving as a bail commissioner results in a contract between the state and the bail commissioner as the word "contract" (which is undefined in G.L. c. 268A) is used in traditional contract law of offer, acceptance, and consideration.1/ "The state offers the opportunity to be appointed and to serve as bail commissioner subject to regulation and supervision by the Superior Court. Acceptance occurs on each occa­sion a bail commissioner agrees to perform those serv­ices subject to applicable regulation."2/

In analyzing the "contract" in Quinn, the Commis­sion considered six standards, including whether:

(1) the appointment confers upon the ap­pointee the powers normally associated with public office;

(2) the duties are similar or identical to the duties performed by public employees;

(3) there is any choice in who will receive his services;

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(4) the place for provision of the services is on public property;

(5) the procedures and work product of the appointee are substantially regulated by a public agency or by law;

(6) compensation for providing the services is specifically and substantially regulated by a public agency or by law.


In a given fact pattern, some of these standards may be given more or less weight. Each factual situation must also be viewed in light of the purpose of the conflict of interest law. One of the underlying policies of section 20 is to prevent municipal employees from using their positions to obtain contractual benefits or additional appointments from the municipality and to avoid any public perception that municipal employees have an "inside track" on such opportunities. See generally Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U.L. Rev. 299 (1965). On the basis of the above standards, particularly standards (1), (2), (5) and (6), the Commission concludes that your serving as an appointed constable in exchange for fees results in a contract within the meaning of G.L. c. 268A, §20 between you and the Town.

Constables in your town are appointed by the Board of Selectmen as "town officers." See G.L. c. 41, § 1; G.L. c. 41, §91A. While most constables spend the substantial majority of their time serving process in civil and criminal cases pursuant to G.L. c. 41, §94, appointment to the position of constable confers upon them a broad range of statutory powers normally associated with public office. For instance, constables "have the powers of sheriffs to require aid in the execution of their duties." G.L. c. 41, s. 94. If no one is elected or appointed as tax collector, or if the appointee refuses to serve, constables serve in that capacity on behalf of the town. G.L. c. 41, s. 39. Constables also possess the power of arrest without a warrant under a number of circumstances, including: violation of the election laws (G.L. c. 56, s. 57); illegal manufacture, sale or transport of alcohol (G.L. c. 138, s. 56); trespassing, after notice, upon a house, building, boat, wharf, etc. (G.L. c. 266, s. 120); playing games in a public place for money or other property (G.L. c. 271, s. 2); and keeping a house, room or place for prostitution. (G.L. c. 272, s. 1O). Other instances in which constables have the statutory power of arrest include breaches of the peace and health law violations. The breadth of constabulary powers of arrest is evidenced by the fact that both the local and state police derive much of their power from constables:" ... [police officers] shall have all the powers and duties of constable except serving and executing civil process." G.L. c. 41, s. 98. See also G.L. c. 22, s. 9A. In summary, the Commission finds that among the statutory powers available to a constable upon appointment are powers and duties similar or identical to those of other public employees.

The fees constables may charge for their services are specifically set out by statute. G.L. c. 262, s. 8. Constables are also required to make an annual accounting of the fees they collect. Id. Thus, while constables secure their own clients and have discretion as to what services within their authority they will provide, their duties and compensation are regulated by statute. The Commission concludes that you have a contract with the town each time you perform services as a constable, because you carry the statutory authority to perform governmental functions such as arrest and your fee schedule is regulated by statute. Your financial interest in such a contract, i.e., your receipt of fees for performing con· stable services, violates s. 20.

The sole exemption under s. 20 available to a full· time municipal employee with a financial interest in a contract made by the same municipality is s. 20(b), which exempts:

a municipal employee who is not employed by the contracting agency or an agency which regulates the activities of the contracting agency and who does not participate in or have official responsibility for any of the activities of the contracting agency, if the contract is made after public notice or where applicable, through competitive bidding, and if the municipal employee files with the clerk of the city or town a statement making full disclosure of his interest and the interest of his immediate family; and if in the case of a contract for personal services:

(1) the services will be provided outside the normal working hours of the municipal employee,

(2) the services are not required as part of the municipal employee's regular duties, the employee is compensated for not more than five hundred hours during a calendar year,

(3) the head of the contracting agency makes and files with the clerk of the city or town a writ· ten certification that no employee of that agency is available to perform those services as part of their regular duties, and

(4) the city council, board of selectmen or board of aldermen approve the exemption of his interest from this section.

You do not qualify for this exemption. In previous opinions, the Commission has considered the nature of both a police chief's and a fire chief's duties in a municipality. See ECCOI·85·64; 85·65; 85·83. The Commission concluded that the general supervisory responsibilities such individuals possess over department matters require that they be on call twenty four hours a day.

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Because your position as chief of police is considered a 24-hour a day job, you are rendered incapable of meeting the requirement that your constabulary serv­ices be provided outside your normal working hours.

DATE AUTHORIZED: May 20, 1986




1/ The fact that a bail commissioner receives fees from someone other than the state was held to be irrelevant. "Section 7 prohibits a financial interest in a contract made by a state agency, not in one funded by the state. It is the existence of compensation, not the identity of its source, that is the issue." Quinn, supra. The opportunity to earn compensation from third persons is sufficient to support a contract. Id.(cites omitted).

2/ See footnote 5 in Quinn, supra.

3/ Because your receipt of fees for performing constable services violates s. 20, the Commission does not reach the issue of whether your police chief salary would qualify for a s. 20 exemption if the position of constable was expressly classified as a "special municipal employee" position by the Board of Selectmen.

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End of Opinion