Docket No.: 288


IN THE MATTER OF OGDEN SUFFOLK DOWNS, INC.


Date: May 14, 1985



DISPOSITION AGREEMENT


Page 243

This disposition agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Ogden Suffolk
Downs, Inc. (Suffolk Downs) pursuant to s. 11 of the Commission's
Enforcement Procedures. This Agreement constitutes a consented to
final Commission order enforceable in Superior Court pursuant to
G.L. c. 268B, s. 4(d). On October 16, 1984, the Commission
initiated a preliminary inquiry pursuant to the conflict of
interest law, G.L. c. 268A, involving Suffolk Downs. The Commission
concluded its inquiry and on April 2, 1985, found reasonable cause
to believe that Suffolk Downs violated G.L. c. 268A. The parties
now agree to the following findings of fact and conclusions of law:

1. Suffolk Downs owns and operates Suffolk Downs Racetrack
which straddles the Revere/Boston border. The stables, dormitories
and kitchen are in Revere; the track, grandstands and patron
parking are in Boston. Currently, roughly 1300 horses are stabled
at the track, cared for by approximately 400 employees.

2. In 1972 the Revere city ordinances were revised to single
out Suffolk Downs for particular emphasis. Thus, c. 8.32 (s. 7-90
in 1972) of the ordinances, consisting of 14 sections and covering
5 pages, deals in great detail with Suffolk Downs. These ordinances
are concerned with the unique fire hazards presented by the stable
area. For example, they contemplate a system for replacing all the
old barns and for ensuring that new barn construction meets certain
codes. They also require a 24-hour fire-watch detail which is
provided by regular uniformed Revere Fire Department Firefighters
(2 on each shift). The fire chief is responsible for enforcing
these ordinances and he has a specific right of entry to ensure
compliance.

3. In 1972, the then fire chief obtained a written opinion
from the city solicitor of Revere that he could be hired and paid
privately by Suffolk Downs for services performed as supervisor of
fire prevention and supervisor of the fire watch detail in the
stable area.

4. In or about September of 1981, Suffolk Downs hired and
began to pay Revere Fire Chief James Connery (Chief Connery) $150
per week for such services. These 150 dollar payments were made
directly by the track by check, were properly reflected on the
books and records of Suffolk Downs, were reported to the
appropriate taxing authorities, and were continued until March of
1985. No specific hours or written work product or reports were
required. Suffolk Downs had no business relationship with Chief
Connery prior to his becoming chief.

5. In exchange for these payments, Chief Connery periodically
visited the stable area in his city fire vehicle. At those times,
he supervised the fire-watch detail, 1 inspected the stable area to
ensure its conformance with city ordinances and state fire code
requirements, and gave advice to track personnel regarding fire
safety and fire prevention issues. Chief Connery also gave advice
as to how the old barns could be improved to comply with fire code
requirements and conducted inspections of the adequacy of the
sprinkler systems and water-flow in the fire hydrants.

6. The above described services provided to the track fell
within Chief Connery's duties and responsibilities as fire
department chief. These were duties and responsibilities covered
by his annual city salary. As fire chief, Chief Connery is
responsible for the department and he is on duty 24 hours a
day. As a result of city ordinances, fire department rules and
regulations and his job description, he is already responsible for
supervising all the "detail" services in the city and for enforcing
the city ordinances dealing with fire prevention and for enforcing
the state fire code. More particularly, he is responsible under the
city ordinances for supervising the fire-watch detail in the stable
area and for ensuring fire safety and prevention in that area.
Therefore, Suffolk Downs cannot pay Chief Connery to supervise
detail work, perform the inspections or provide fire safety and
prevention advice. These are all services Chief Connery is required
to perform as chief and is paid to provide by the city.

Page 244

7. Section 3(a) of G.L. c. 268A prohibits anyone, otherwise
than as provided by law for the proper discharge of official
duties, from directly or indirectly offering or giving anything of
substantial value to a municipal employee for or because of any
official act or acts within his official responsibility performed
or to be performed by him.

8. By paying Chief Connery $150-weekly payments for the
services described in paragraph 4 above, services which were
within the chiefs official responsibilities and duties as fire
chief and for which he was already being paid by the city of
Revere, Suffolk Downs gave substantial value for or because of his
official acts as fire chief. Therefore, Suffolk Downs violated s.
3(a).

9. In its defense, Suffolk Downs points to its good faith
reliance on the 1972 opinion letter from the then city solicitor
to the then fire chief informing him that he could be paid
privately by Suffolk Downs for being supervisor of fire prevention
and the fire-watch detail in the stable area The Commission gives
no deference to this opinion for several reasons.

First, the request for the opinion does not appear to have
involved the detailed submission of facts contemplated by G.L. c.
268A, s. 22.[2] Second, the opinion was not requested by or issued
to Chief Connery. Third, the opinion is 9 years old.

There also exists a second city solicitor's opinion letter
which Chief Connery received in November 1984. Its conclusion --
that the chief might work for Suffolk Downs -- is wrong.[3] While
the Commission might give deference to an incorrect opinion which
otherwise complied with G.L. c. 268A, s. 22, this opinion is
essentially after the fact, the Chief having been on the Suffolk
Downs payroll from September 1981. Therefore, no deference will be
given. Based on the foregoing facts, the Commission has determined
that the public interest would be served by the disposition of this
matter without further enforcement proceedings on the basis of the
following terms agreed to by Suffolk Downs:

1. that it pay the Commission the sum of two thousand dollars
($2,000) as a civil penalty for violating G.L. c. 268A, s. 3(a);
and

2. that it waive all rights to contest findings of fact,
conclusions of law and conditions contained in this Agreement in
this or any related administrative or judicial proceeding in which
the Commission is a party.
______________

[1] Firefighters provide this and other "detail" services to
private entities on other than their normal shifts. They are,
however, still serving as firefighters when they provide these
services and are answerable to the fire chief for their conduct.
They are paid for a specific number of hours at union rates set
forth in the collective bargaining agreement between the fire
department and the union. The fire chief is excluded from that
agreement. Payments for these services are made pursuant to G.L.
c. 44, s. 53C which provides that where a town or city employee
does "detail work" for a private entity, the town or city will bill
that entity for those services, the entity will pay the city, and
the city will subtract an administrative fee and then pay the
employee for his services.

[2] Section 22 provides in pertinent part:
any municipal employee shall be entitled to the opinion of the
corporation counsel, city solicitor or town counsel upon any
question arising under this chapter relating to the duties,
responsibilities and interests of such employee.... The town
counsel or city solicitor shall file such opinion in writing with
the city or town clerk and such opinion shall be a matter of public
record; however, no opinion will be rendered by the town
counsel or city solicitor except upon the submission of detailed existing
facts which raise a question of actual or prospective violation of
any provision of this chapter.

[3] The November 1984 opinion Chief Connery received informed
him that he could be paid by Suffolk Downs for supervising the
firewatch detail in the stable area and for providing limited
consulting services for Suffolk Downs on the Boston-side of the
track facility. Such an arrangement is prohibited under ss. 3 and
23 of G.L. c. 268A. Chief Connery may not be paid by Suffolk Downs
for supervising the detail work there because that is what the city
of Revere is already paying him to do. Section 3 prohibits this.
(See In the Matter of the Collector-Treasurer's Office of the
City of Boston, 1981 EC 35.) And s. 23(par. 2)(1) (which bars a
public official from accepting other employment which will impair
his independent judgment in his official capacity), prohibits a
Fire chief from accepting any private employment with an entity
with substantial needs for his department's services, especially
where the private consulting involves giving fire safety and
prevention advice (See EC-COI-81-133).

End Of Decision