Date:  June 18, 1980

 

Decision and Order

 

Appearing:  Scott Harshbarger, Esq.: General Counsel, State Ethics Commission 

                 Kevin F. O'Donnell, Esq.: Counsel to the Respondent

Commissioners:  Vorenberg, Ch., Brickman, Bernstein, Kistler, McLaughlin


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I. Procedural History


On October 19,1979, the Petitioner filed an Order to Show Cause alleging that the Respondent, C. Joseph Doyle, while serving as a full-time employee of the state legislature, acted as the agent for the Jamaica Plain Community Development Foundation (hereafter "JPCDF" or "foundation") in its efforts to secure funding from two (2) state agencies, the Department of Youth Services (DYS) and the Department of Community Affairs (DCA), in violation of section 4(c) of the conflict of interest law, General Laws Chapter 268A.[1]  The Respondent denied the allegations.

The evidentiary hearing was held on March 5, 1980 before Linda Kistler, Vice-Chairman of the Commission.  See M.G.L. c. 268B, s.4(c).  Post-hearing briefs were filed by counsel.  Oral argument before the full Commission occurred on April 16, 1980; the Respondent waived his opportunity to appear at that proceeding.

In rendering this decision and order, each Member of the Commission has heard and/or read the evidence and arguments presented by the parties.


II. Findings of Fact


Based on the testimony and documents introduced at the hearing, the reasonable inferences to be drawn there from, the following findings of fact are hereby made:

1. From November 1, 1976 to June 1, 1979, C. Joseph Doyle was employed by the Massachusetts House of Representatives, House Committee on Rules, assigned as an aide to Representatives James Craven.  His area of expertise involved transportation matters related to the Massachusetts Bay Transportation Authority (MBTA) and the Southwest Corridor rapid transit project.

2. Mr. Doyle was, at all times during the course of his employment, a full-time employee of the House of Representatives and of the Commonwealth.[2]

3. In March and April, 1977, Mr. Doyle, a resident of Jamaica Plain, participated in the formation and incorporation of the Jamaica Plain Community Development Foundation (JPCDF), a private, non-profit corporation designed to stimulate the social and economic development of the Jamaica Plain Community.  He originally served as the Clerk and Secretary to JPCDF.

4. In the late summer of 1978, Mr. Doyle began to serve on a voluntary basis as the Executive Director of JPCDF; his position was confirmed by the Board of Directors in December 1978.  His role as Executive Director was to secure the initial operating funding for JPCDF and he intended to resign his state position in order to become the paid Executive Director as soon as sufficient funds were obtained to enable the Foundation to commence operations and pay him a salary.

5. In the late summer of 1978, Mr. Doyle was advised by Representative Craven that funds were available from DYS and DCA for grants to community organizations.  Through the end of 1978 and the beginning of 1979, while continuing to serve as a full-time state employee, Mr. Doyle engaged in a series of activities designed to obtain funds from those agencies for JPCDF.

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6. In the late summer of 1978, Representative Craven arranged a series of meetings between Mr. Doyle and others representing JPCDF and the Commissioner of DYS and the Secretary of DCA.  At these meetings, which were held in the office of the Chairman of the House Committee on Ways and Means, Mr. Doyle, in his capacity of Executive Director of JPCDF, described the goals and purposes of the Foundation to the agency officials and discussed with them the possibility of obtaining agency funds for JPCDF.

7. On November 7, 1978, JPCDF applied to DYS for a grant to conduct a case study to assess delinquency prevention and youth resource needs in Jamaica Plain; the Executive Director of JPCDF was to spend 25% of his time on this project and was to be paid from the grant funds.  Mr. Doyle participated in drafting this grant proposal and, following its submission, he met with Sim Sitkin, Director of Research and Planning for DYS, on several occasions
between mid-November and mid-December 1978 to negotiate the terms of the JPCDF/DYS contract.  The $18,000 JPCDF/DYS contract was signed and executed by a representative of DYS and Mr. Doyle, acting in his capacity as the Executive Director of JPCDF, on December 21,1978.

8. On December 1,1978, JPCDF applied to DCA for a grant to conduct an urban reinvestment survey; Mr. Doyle participated in drafting this proposal and was listed on the applicant cover sheet as the contact person for JPCDF on this submission.  On January 2,1979, the Secretary of DCA advised Mr. Doyle that he was approving the grant to JPCDF subject to two (2) program alterations; Mr. Doyle was advised to contact Gerald Tuckman at DCA to discuss the program revisions.  Between late summer, 1978 and April 30, 1979, Mr. Doyle and Representative Craven met with Mr. Tuckman on one occasion and Mr. Doyle also had several conversations with Mr. Tuckman regarding this contract. The $10,000 JPCDF/DCA contract was signed and executed by the Secretary of DCA and Mr. Doyle, Executive Director of JPCDF, on April 30,1979.

9. Mr. Doyle, a full-time state employee, was acting solely as the representative of, and agent for, JPCDF when he attended the meetings and negotiated the contracts with DYS and DCA officials and when he signed the DYS and DCA contracts for grants on behalf of JPCDF; he was not discharging his official duties as a full-time employee of the House Rules Committee when he engaged in those activities on behalf of JPCDF.

10. Mr. Doyle resigned his state position as of Friday, June 1, 1979 and assumed the full time position of Executive Director of JPCDF on Monday, June 4, 1979.[3]

11. Mr. Doyle resigned his position with JPCDF on July 1, 1979; he did not receive any monies from JPCDF.  Mr. Doyle testified that he is currently unemployed.
 


III. Conclusions of Law


The fundamental premise underlying the conflict of interest law is to restrain government employees from "engaging in conduct which might be inimical to the best interests of the general public" United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961) (emphasis added), in order to insure that a public employee will serve the public "first, last and only".[4]  One of the ways in which the statute accomplishes these purposes is by restricting the activities in which a public employee may engage in his private capacity.

Section 4 of the conflict of interest law, General Laws Chapter 268A, the so-called "divided loyalties" section, essentially prohibits all full-time state employees from aiding or assisting private parties in their dealings with the state. Section 4(c) specifically and unequivocally prohibits a state employee, otherwise than in the proper discharge of his official duties, from acting as the agent for anyone other than the Commonwealth in relation to any particular matter in which the state is a party or has a direct and substantial interest[5]; among other things, this section is designed to avoid the potential for "influence peddling".  Since a state employee's influence, knowledge and contacts are presumed to extend beyond his own agency, the statute prohibits all state employees from acting as the agent for a private interest in any particular matter in which

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the state has the requisite interest.[6]  As a result, this absolute proscription serves the board prophylactic purpose of preventing state employees from engaging in activities which have the potential for, or may give the appearance of, wrongdoing.[7]  In other words, the proscription prevents temptation.[8]

Mr. Doyle claims that he acted in good faith and was not aware that his actions violated the conflict of interest law.  However, section 4(c) establishes an objective standard of conduct for state employees.[9]  It is not necessary to show that a state employee acted with any corrupt intent, Commonwealth v. Dutney, 4 Mass. App. 363, 375 (1976).[10]  Furthermore, ignorance of the law is no defense to an action brought pursuant to this section, Commonwealth v. Everson, 140 Mass. 292, 295 (1885); Commonwealth v. O'Connell, 274 Mass. 315, 321 (1931) and cases cited therein; Scola v. Scola, 318 Mass. 1, 7 (1945).  Accordingly, a state employee is guilty of violating section 4(c) whenever he fails to act in accordance with the standard of conduct and behavior established therein.

It is clear that Mr. Doyle, while working for the Rules Committee of the House of Representatives, was compensated for performing services for and was employed by a state agency.[11]  Accordingly, he was a "state employee" for purposes of the conflict of interest 1aw[12] and, as a result, he owed his undivided loyalty to the state.  It is equally clear that grant applications to and contracts made by state agencies are "particular matters",[13] to which the state, through its agencies, is a party and has a direct and substantial interest.  See Attorney General Conflict Opinions 198,312,799, and 846.  Accordingly, section 4(c) prevented him from acting as the agent for a private interest in relation to those types of matters.

Mr. Doyle clearly acted as the "agent" for JPCDF - someone other than the Commonwealth. "One fundamental element in. . .every agency is that the alleged agent . . does something for or in behalf of the alleged principal, Patterson v. Barnes, 317 Mass. 721, 723 (1945).  Mr. Doyle was the Executive Director of JPCDF, having been confirmed in that position by its Board of Directors.  By seeking grants from two state agencies, negotiating the terms of those agreements and signing the contract documents on behalf of the Foundation in his capacity as its Executive Director, Mr. Doyle repeatedly acted as the "agent" for JPCDF.

Furthermore, Mr. Doyle was clearly not discharging his duties as a legislative aide when he represented JPCDF in connection with these grants.  In other words, he was acting "otherwise than as provided by law for the proper discharge of his official duties."[15]  While the duties of a legislative aide may well include assisting individuals and organizations in their dealings with the state, such was not the case here.  Mr. Doyle was employed by the House Rules Committee, specializing in transportation matters.  However, neither the subject matter of these grants juvenile delinquency and urban reinvestment - nor the state agencies involved appear to be related in any way to Mr. Doyle's
duties and responsibilities as a state employee or to the jurisdiction of the House Rules Committee.  In addition, Mr. Doyle admitted that he was actively

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representing his private interest in its efforts to secure state contracts while serving as a state employee and that he intended to resign his state position once sufficient funds had been secured to enable the Foundation to pay him.  This is the classic case of "divided loyalties."

Based on the foregoing, we conclude that C. Joseph Doyle, while serving as a State employee acted, otherwise than as provided by law for the proper discharge of his official duties, as the agent for someone other than the Commonwealth in relation to particular matters in which the state is a party and has a direct and substantial interest in violation of section 4(c) of Chapter 268A.  Clearly, by representing JPCDF in its efforts to secure state contracts, Mr. Doyle's actions violated the letter and the Spirit of the law.  Although he claims that he acted in good faith, he should have known that his activities on behalf of JPCDF were inconsistent with his obligation of loyalty to the state and with his public trust.  We note, however, that Mr. Doyle voluntarily advised the Commission, through his request for an advisory opinion and his discussions with members of the staff, of the activities in which he engaged on behalf of JPCDF while serving as a state employee; that he voluntarily resigned his position with JPCDF within a reasonable time after questions were raised regarding the propriety of his earlier actions on its behalf; that he never received any compensation from JPCDF; and, finally, that he is currently employed.  Accordingly, he is hereby Ordered to:

Pay a civil penalty of two hundred fifty dollars ($250.00) within thirty (30) days of receipts of this decision.


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[1] Section 4(c) of Chapter 268A provides:

No state employee shall, otherwise than in the proper discharge of his official duties, act as agent or attorney for anyone other than the commonwealth or a state agency for prosecuting any claim against the commonwealth or a state agency, or as agent or attorney for anyone in connection with any particular matter in which the commonwealth or a state agency is a party or his a direct and substantial interest.


[2] According to the House Rules, full-time employees may not engage in outside business activities during business hours and all employees are assumed to be full-time unless their personnel file indicates otherwise.  Rules of the House of Representatives, 1979-80, Rule 16A(g) (formerly Rule 19A during 1977 and 1978).  Mr. Doyle's personnel file at the House of Representatives does not contain any statement that he was permitted to engage in outside
activities during his normal working hours.


[3] The JPCDF/DYS contract was cancelled on or about June 13,1979, apparently in part after DYS discovered that Mr. Doyle had been a full-time state employee at the time he signed the contract on behalf of JPCDF.  Mr. Doyle, upon learning of the reason for the contract cancellation, spoke to Robert Cordy, Associate General Counsel of the Ethics Commission, regarding the applicability of the conflict of interest law; at that meeting, Mr. Doyle told Mr.
Cordy about the contract and other contracts he negotiated and signed on behalf of JPCDF while serving as a state employee.


[4] Buss, The Massachusetts Conflict-of-Interest Statute: An Analysis, 45. B.U. Law Rev. 299, 322 (1965) (hereafter Buss).


[5] See note 1, supra.


[6] Buss, supra at 323.


[7] The conflict of interest law was enacted "as much to prevent giving the appearance of conflict as to suppress all tendency to wrong-doing."  Board of Selectmen of Avon v. Linder, 352 Mass. 581, 583 (1967).


[8] See, United States v. Mississippi Valley Generating Co., 364 U.S. 520,550(1961) and cases cited therein.


[9] Id. at 549.


[10] Further Appellate Review denied 370 Mass. 868(1976).


[11] M.G.L.A. c. 268A. s.1(p) defines "state agency" as "any department of state government including the. .. legislative..."


[12] "State employee" is defined in M.G.L. c. 268A. s.1(q) as:

A person performing services for or holding an office, position, employment, or membership in a state 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, ...

This definition clearly encompasses individuals paid as consultants although such individuals may not be eligible for other benefits offered to state employees.  See, for example. M.G.L.A. c. 32. s.1 (excluding consultants paid from the 03 account from eligibility for membership in the state's contributory retirement system).  Furthermore, since Mr. Doyle was not permitted to engage in outside activities during his normal working hours, see note 2, supra, he cannot be considered to have been a "special state employee" as that term is defined in section 1(o)(2) of Chapter 268A.


[13] The definition of the term "particular matter" includes "any... application, submission... contract.. ." M.G.L.A. c. 268A, s. 1(k).


[14] See, Restatement (Second) of Agency, s.s. 1(e). 1(f) (1957); United States v. Sweig, 316 F. Supp. 1148. 1156-7 (S.D.N.Y. 1970); Conde Nast Press v. Cornhill Publishing Co., 255 Mass. 480, 485 (1926); Cellucci v. Sun Oil Co., 368 Mass. 811 (1975) and cases cited therein.


[15] While it is not necessary that the state employee have some affiliation - formal or informal - with the private entity on whose behalf he is acting in order to violate section 4(c), such an affiliation raises the presumption that the state employee is acting for the benefit of his private interests and not for the benefit of the government.

 

End of  Decision