Public Enforcement Letter 99-1


In the Matter of John Massa

Date: August 20, 1998


John Massa
c/o James P. Mahoney, Esq.
600 Chestnut Street
Lynn, MA 01904-2694

Dear Mr. Massa:

As you know, the State Ethics Commission ("the Commission")
has conducted a preliminary inquiry into allegations that as a City
of Lynn health inspector you violated the state conflict of
interest law, General Laws c. 268A, by inspecting property that is
managed by businesses for which you regularly serve papers as a
constable. Based on the staff's inquiry (discussed below), the
Commission voted on June 9, 1998 that there is reasonable cause to
believe that you violated the state conflict of interest law, G.L.
c. 268A, s. 23(b)(3).

For the reasons discussed below, the Commission does not
believe that further proceedings are warranted. Instead, the
Commission has determined that the public interest would be better
served by bringing to your attention, and to the public's
attention, the facts revealed by the preliminary inquiry and by
explaining the application of the law to the facts, with the
expectation that this advice will ensure your understanding of and
future compliance with the conflict of interest law. By agreeing
to this public letter as a final resolution of this matter, you do
not admit to the facts and law discussed below. The Commission and
you have agreed that there will be no formal action against you in
this matter and that you have chosen not to exercise your right to
a hearing before the Commission.


I. Facts


1. You were a Lynn constable from approximately 1978 to 1996.
Constables in Lynn are appointed by the mayor and approved by the
city council. Lynn constables have not been designated "special"
municipal employees.

2. As a constable you mainly served papers in landlord-tenant
matters.[1] You charged $10-25, depending on the type of notice,
and $85 to $150 to evict someone, depending on how many hours the
eviction
took.

3. You estimate you earned $8,000 to $12,000 per year as a
constable.

4. You did most of your constable work for two clients,
International Realty ("IR") and Crowninshield Realty ("CS").

5. IR and CS are management companies. They are among the
largest apartment management companies in Lynn. They do not own
the apartments they manage.

6. You served papers as a constable for IR for more than five
years ending in 1996.[2] During that time, you received 90-95% of
IR's business in the city. You estimate on average you earned
approximately $6,000 per year from IR. You received virtually all
of IR's constable business because you gave IR a volume
discount.[3]

7. You worked for CS for at least the five years prior to and
including 1996.[4] During that time, you also provided CS with the
same volume discount, and, in return received approximately
one-half of their constable business. You estimate on average you
earned approximately $3,000 per year from CS.

8. You have been a code inspector in the City of Lynn Health
Department for 22 years. Your salary is $35,000 a year. Your
office hours as a code inspector are Monday, Wednesday, Thursday,
8:30 a.m. to 4:30 p.m.; Tuesday 8:30 A.M. to 8:00 P.M; Friday 8:00
A.M. to 12 P.M.

9. As a code inspector you are responsible for conducting
apartment inspections. Most of the inspect-ions are apartment
vacancy inspections.[5] (The department conducts over 5,000 vacancy
inspections each year.) You also conduct inspections when
complaints are received from tenants. You are primarily
responsible for inspecting property located in East Lynn near the
ocean ("your district").

10. As a code inspector, you have been virtually the
exclusive inspector for the four IR-managed apartment buildings in
your district and occasionally you have inspected IR buildings
outside of your district as well. You have inspected IR units at a
rate of 1-3 a month per apartment building.

11. You have conducted virtually all the code inspections for
the CS properties located at 42 West Baltimore Street and 285 Lynn
Shore Drive.

12. In 1996 four IR or CS tenants made code complaints to the
Health Department following their receipt of an eviction notice
delivered by you. You then conducted the inspection of the units.

13. You never disclosed to your supervisor, Lynn Health
Department Director Gerald Carpinella, that you were inspecting
units as to which you earlier served eviction notices for IR
and/or CS. Nor did you disclose that you had an extensive
constable relationship with IR and CS at the same time you were
inspecting their properties. You also did not disclose that you
were doing constable business in your own district.

14. Each year you file with the city clerk a letter stating
that you are a constable and a health inspector. By letter to the
city clerk dated July 11, 1996, you disclosed,

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As directed under s. 20(b) of conflict law, I am filing
notice stating that I have been appointed constable
while also being employed as a full-time municipal
employee.

15. Carpinella has known for many years that some
of his inspectors, including you, were also working as constables.
Carpinella was concerned that inspectors would do constable work
for landlords they regulated. In the 1980s, Carpinella discussed
this concern with the inspectors, including you. The matter was
referred to City Solicitor Nicolas Curuby who wrote a letter to
Carpinella on July 6, 1987 addressing the issue. In his letter
Curuby said that inspectors should not serve process in their code
inspector districts; and, before serving papers on any unit, the
inspector should check to see if the department is involved with
that unit.[6] Carpinella made the letter available to all of the
health inspectors on July 9, 1987, including you. Carpinella did
not know that you served papers as a constable for IR and CS and
also as a health agent inspected apartment units managed by IR and
CS.

16. You state that the day after receiving the Curuby letter
you spoke to Curuby. According to you, he told you that it would
be okay to serve papers in your own district provided you did not
serve on the same unit that you had inspected as a code inspector.
You submitted a copy of the July 6, 1987 letter with your own
handwriting in the upper right hand corner stating, "meeting
7-24-87, okay to serve in my area but never serve to tenant with
order from health department." According to you, Curuby agreed to
follow-up this oral advice with something in writing, but you
never received anything in writing from Curuby. You did not
disclose to Curuby that you had a steady, fairly high volume
constable business relationship with IR and CS.

17. Curuby has no recollection of your claimed 1987 meeting
with him. He states that he would not, however, have contradicted
his 1987 letter without talking to Carpinella, and he has no
recollection of talking about this any further with Carpinella.
(Carpinella has no recollection of any such discussion.)


II. Discussion


Section 23(b)(3) prohibits a municipal employee from
knowingly, or with reason to know, acting in a manner which would
cause a reasonable person, knowing all of the facts, to conclude
that anyone can improperly influence or unduly enjoy that person's
favor in the performance of his official duties. This subsection's
purpose is to deal with appearances of impropriety, and in particular,
appearances that public officials have given people preferential treatment.
This subsection goes on to provide that the appearance of impropriety
can be avoided if the municipal employee discloses in writing to his
appointing authority (or if he does not have an appointing authority,
files a written disclosure with the town or city clerk) all of the relevant
circumstances which would otherwise create the appearance of
conflict. The appointing authority must maintain that written
disclosure as a public record. (If the employee is elected, his
public disclosure to the town or city clerk must also be maintained
as a public record.)

The Commission generally applies s. 23(b)(3) where an
appearance arises that the integrity of a public official's action
might be undermined by a private relationship or interest.
Flanagan, 1996 SEC 757, 763. Fact Sheet No. 1, "Avoiding
'Appearances' of Conflict of Interest."


Clearly, if an inspector were receiving $2,000 or $3,000 a
year in private fees from a landlord, he would probably have a bias
in favor of that landlord when it comes time to inspect the
landlord's property as a health inspector. The inspector would
have to be concerned that an adverse inspection report by him might
trigger a reduction of or even the entire loss of those fees.
Performing such inspections under those circumstances cannot help
but cause a reasonable person to conclude that the integrity of the
public official's action might be undermined by the private fees he
is receiving from the landlord. Consequently, absent a proper
disclosure, such inspections would violate s. 23(b)(3).

The evidence indicates you inspected apartments on numerous
occasions where those apartments were managed by either IR or CS,
management companies with whom you had arrangements to provide
nearly all, or most of their constable business, and from each of
which you received several thousand dollars each year for your
constable services. For the reasons discussed above, such conduct
would appear to violate s. 23(b)(3) because a reasonable person
would conclude that IR or CS might unduly enjoy your favor in the
performance of your official duties as an inspector.[7]

In the Commission's view, a reasonable person, considering all
of the facts, would give some weight to the fact that you do owe a
fiduciary obligation to the city as a constable. Nevertheless, that
same reasonable person, realistically reflecting on your receiving
a substantial portion of your income from IR and CS, would conclude
that you cannot help but have a bias in favor of those clients that
might play a role in any dealings you would have with them as a
health inspector. Consequently, there would be reasonable cause to
believe such conduct violated s. 23(b)(3).

The point the Commission wants to emphasize is that inspectors
have a particularly important role in protecting the public health
and safety. It is essential that their objectivity, both in fact
and through appearances, be maintained so that confidence in their
inspections can be assured. Accordingly, no inspector should act
as an

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inspector regarding any situation where he has a potentially
compromising relationship with the party he is inspecting without
first fully disclosing the relevant facts to his appointing
authority.

There is no simple formula for identifying when these other
relationships are sufficiently significant that they implicate s.
23(b)(3). Again, see generally, Fact Sheet No. 1, supra. For the
purpose of giving guidance, however, the Commission advises that an
inspector who in one year receives $100 or more in fees from
someone he inspects must first disclose that fee relationship to
his appointing authority or not inspect.[8]


III. Disposition


Based upon its review of this matter, the Commission has
determined that your receipt of this public enforcement letter
should be sufficient to ensure your understanding of and future
compliance with the conflict of interest law.

The Commission is authorized to resolve violations of G.L. c.
268A with civil penalties of up to $2,000 per violation. The
Commission chose to resolve this case with a public enforcement
letter, rather than imposing a fine because there is no Commission
precedent addressing whether a s. 23(b)(3) issue will arise when a
public official acts officially with respect to someone with whom
he has a significant constable fee arrangement; therefore, the
Commission perceives the need to educate more than to punish in
this area.

This matter is now closed.

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

[1] You most frequently served a so-called "14-day notice" which
informs a tenant that eviction proceedings will begin if back rent
is not paid within 14 days. If that notice is ignored, the
attorney for the land-lord will typically next seek a court order
giving the tenant 30 days to vacate, unless the back rent is paid
during that time. You also served these orders. Finally
approximately once a month, you enforced an eviction order and
moved the tenant and his furnishings out of an apartment

[2] An IR employee initiated the arrangement.

[3] You set your fees on average approximately 30 to 40% below what
other constables usually charge.

[4] A CS employee initiated the arrangement.

[5] Apartment vacancy inspections are inspections to certify that
a vacant apartment is suitable for habitation. These inspections are
required by city ordinance.

[6] The letter states, in part,

To avoid possible conflict of interest, it is recommended that
your inspectors be told that if they are asked to render
[constable] services in their assigned district that they
are not to accept the work. If after they make the
preliminary notice, and the real property has been
inspected by your office, none of the employees should
accept further constable services.

As you are aware, it is often the case, that when a notice to
quit is made, the tenant comes to your office to ask for
an inspection for possible violations. That is why the
Constables in your office should make sure [of] the current
status of the involved real property.

[7] This appearance problem would be exacerbated whenever such an
inspection involved the same IR or CS tenant to whom you had
recently served papers as a constable, as was the case in the four
instances described above. (Indeed, any such inspection, following
so closely on the heels of your serving papers on the same tenant,
would in and of itself create an appearance problem even if you did
not receive a significant amount of fees from the company that
managed that unit.) This appearance problem would also be
exacerbated by your continuing to serve papers in your own
inspection district after the city solicitor told you not to. (As
discussed above, you maintain that the city solicitor orally
amended his written prohibition to allow you to serve papers so
long as there was nothing pending in the department regarding the
unit. In the Commission's view the weight of the evidence does not
support your claim; however, even if the city solicitor did amend
his advice as you claim, the amended advice was not in writing, was
not reviewed by the Commission, and was not based on any awareness
by him of the volume of the constable business that you were doing
with these two clients in your district.)

[8] Your being a Lynn municipal employee as an inspector and also
at the same time having been an appointed, paid Lynn constable,
raises an issue under G.L. c. 268A, s. 20. Thus, s. 20 prohibits a
municipal employee from having a financial interest in a contract
with the same municipality. Your position as a Lynn constable
would have given you a financial interest in a contract with Lynn.
Where you were already a Lynn municipal employee as an inspector,
that financial interest in a contract would appear to have violated
s. 20. There are a number of exemptions in s. 20. The only one
that could apply, however, is s. 20(b) which, among several other
conditions, would have required that the availability of these
constable positions be publicly noticed. That notice was not given.
(Your filing a yearly disclosure with the city clerk of your having
a constable position, citing s. 20(b) did not satisfy the
requirements of s. 20(b).)

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End of Decision