Public Enforcement Letter 87-3

Patrick D. Farretta
c/o Henry E. Quarles, Jr., Esq.
395 Washington Street, Suite #4
Dedham, MA 02026

February 10, 1987

Dear Mr. Farretta:

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As you know, the State Ethics Commission has conducted a
preliminary inquiry regarding an allegation that after inspecting
and participating as a Boston housing inspector in the condemnation
of property owned by an elderly woman, you took various actions,
outside of your official capacity, in connection with her
relocation. The preliminary inquiry has also concerned an
allegation that you requested and received $100 from this
individual, again outside of your official capacity, in order to
board up her property.

The results of our investigation (discussed below) indicate that
the conflict of interest law was violated in this case.
Nevertheless, in view of certain mitigating factors, also discussed
below, the Commission has determined that adjudicatory proceedings
are not warranted. Rather, the Commission has concluded that the
public interest would be better served by disclosing the facts
revealed by our investigation and explaining the applicable
provisions of law, trusting that this advice will ensure your
future understanding of and compliance with the conflict law. By
agreeing to this public letter as a final resolution of this
matter, the Commission and you are agreeing that there will be no
formal action against you and that you have chosen not to exercise
your right to a hearing before the Commission.

I. The Facts

1. You have been a housing inspector in the Housing Division of
the City of Boston's Inspectional Services Department for the past
fifteen years. As such, you are a "municipal employee" as defined
in G.L. c. 268A, s.1(g).

2. In 1984 and 1985, you worked as a real estate salesman for
The Real Estate Co., Inc., 1350 Dorchester Avenue, Dorchester,
earning $9,960.07 from the company in 1984 and $16,985.00 in 1985.

3. During 1984 and 1985 the owners of The Real Estate Co., Inc.
were Stuart T. Schrier, Robert Raimondi and Edith Yanonis. Edith
Yanonis's husband, Rick Yanonis, was office manager.

4. On September 28, 1984, you inspected the property at 15
Lawrence Street in the South End of Boston, a townhouse owned by
a woman over 80 years old living on Social Security benefits, and
cited it for numerous violations of the State Sanitary Code.

5. On October 10,1984, you served a notice of possible
condemnation of 15 Lawrence Street on this woman; at a hearing on
that same day your supervisor, Frederick Sexton, decided that the
building should be condemned and ordered vacated and secured.

6. On Saturday, October 20,1984, you went to visit the elderly
woman at 15 Lawrence Street. After finding that she had been beaten
up by intruders, you moved her to the Susse Chalet Motor Lodge
on Morrissey Boulevard in Dorchester, where, you have stated, you paid
out of your own money for her to stay over the weekend. An employee
of the Boston City Commission on Elderly Affairs, Kathy McNiven,
then arranged for Charitable Donations of Boston to pay for her
stay at the motel from October 22 to October 30,1984.

7. During this time, you contacted Rick Yanonis of The Real
Estate Co., Inc. to see if he could appraise 15 Lawrence Street and
possibly buy it. Kathy McNiven had asked if you knew anyone who
could do an appraisal of the property, which was necessary to get
the elderly woman into public housing. You took Mr. Yanonis to meet
the woman at the motel and then to see the property. He gave you
a written opinion of value of $50,000, which you gave to Kathy
McNiven, who then submitted it to the Boston Housing Authoriry in
an attempt to place the woman with it.

8. You arranged with Rick Yanonis for him to pay for the woman's
further stay at the motel. Mr. Yanonis agreed to do so in the hope
that the woman would consider selling her property to him. No sale
took place, however, because she would not sell until she had a
place to go.

9. During the woman's stay at the motel, you also took Stuart
Schrier, president of The Real Estate Co., Inc. to see her. He
asked her whether she would be willing to sell her property; she
replied that she was not ready to sell.

10. On November 7, 1984, you placarded the premises at 15
Lawrence Street as having been condemned and delivered a copy of
a Vacate Order to the elderly woman.

11. On November 30, 1984, in accordance with your arrangement,
Mr. Yanonis paid $904.16 by check to the Susse Chalet for the
woman, According to Mr. Schrier, he, Mr. Yanonis, and Robert
Raimondi (also an owner of The Real Estate Co.) each paid equal
portions of this amount.

12. In early December, 1984, you contacted Quincy Community
Action and helped to arrange a placement for the woman in Quincy
Housing Authority housing.

13. In November or December of 1984, you asked the woman for
$100 to board up 15 Lawrence Street. You later returned this money
to her.

II. The Conflict Law

As a Boston housing inspector, you are a municipal employee for
the purposes of the conflict of interest law, c G.L. c. 268A.
Section 17(c) prohibits a municipal

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employee, otherwise than in the proper discharge of his official
duties, from acting as agent for anyone other than the city or
municipal agency in connection with any particular matter in which
the city is a party or has a direct and substantial interest.

The facts set forth in this letter, if proven, would establish
violations of s.17. The decision by the Inspectional Services
Department to condemn 15 Lawrence Street was a particular matter
in which the city was a party or had a direct and substantial
interest. In taking the actions which you took to relocate the
elderly woman after her property was condemned,[1] you were acting
as her agent[2] in connection with the condemnation. Pursuant to
G.L. c. 79A, s.13, any public agency displacing someone by issuing
an order to vacate property which has been condemned must provide
that person with relocation assistance and a relocation payment for
moving expenses. In fact, when it condemns a building, the Boston
Inspectional Services Department fills out a "relocation
information form," refers the occupants' names to the Boston
Housing Authority, and furnishes the occupants with a housing
information list to help them find housing. Thus the relocation of
the occupant of a condemned building is a process which is "in
connection with" the condemnation, and actions taken on behalf of
such a person to relocate him or her violate s.17(c) if they are
not in the course of one's official duties. That you were not
acting in the course of your official duties appears from the fact
that you paid for part of the elderly woman's motel bill out of
your own pocket and the fact that you turned to your private
contacts at The Real Estate Co. to appraise 15 Lawrence Street, to
try to buy the property from the woman, and to pay for her
continued stay at the motel.

Likewise, you were not acting in the course of your official
duties when you requested and received $100 from the woman to board
up her property. Customarily, it is an owner's responsibiliry to
board up a condemned building: if he or she does not, the Building
Division of the Inspectional Services Department does so and puts
a lien on the building. In requesting and receiving money from the
woman to board up her property, you were again acting as her agent
in connection with the particular matter of condemnation of the
property, in which the city was a parry or had a direct and
substantial interest. Thus, if these facts were proven, they would
establish another violation of s.17(c). Also, if it were proven
that you had intended at the time of your request to keep any part
of the $100 in return for seeing to the boarding up, a violation
of s.17(a) would be established: section 17(a) prohibits a
municipal employee, otherwise than as provided by law for the
proper discharge of official duties, from directly or indirectly
receiving or requesting compensation from anyone other than the
city or municipal agency in relation to any particular matter in
which the city is a party or has a direct and substantial interest.

The Commission has found no evidence that you received a
financial benefit in relation to any of the events described in
this letter. It also recognizes that, although it has had in this
case no way of determining your motivation, you may have been
motivated by the admirable desire to help an elderly woman. You may
rather have been motivated, however, by your expectation that if
she was happily relocated she would sell her property through your
real estate company, a sale which would probably have resulted in
a commission to you.

Because of the above mitigating factors, the Commission has
decided that this case does not warrant the initiation of formal
adjudicatory proceedings. It does, however, want to make clear to
you and other municipal employees similarly situated that the
public interest requires that public officials give their undivided
efforts to serving their public functions. Section 17 reflects the
maxim that a person cannot serve two masters. Whenever a city
employee acts on behalf of private interests in matters in which
the city also has an interest, there is a potential for divided
loyalties, the use of insider information, and favoritism all at
the expense of the City. EC-COI-82-127. This means that even where
the interests of a city or municipal agency and of a private party
in a particular matter are not adverse, a public official must be
careful not to act as an agent for the private party. See Town of
Edgartown v. State Ethics Commission, 391 Mass. 83,86-87(1984).

Finally, the Commission wishes to advise you that s.23 of the
conflict of interest law may place additional restrictions on your
future conduct.[3]

Section 23(b)(2) prohibits a municipal employee from using his
official position to secure for himself or others unwarranted
privileges or exemptions which are of substantial value and which
are not properly available to similarly situated individuals.
Introducing an owner of a condemned or about-to-be-condemned
building to your friends or employers in the real estate business
could constitute aviolation of this section.

Section 23(b)(3) prohibits a municipal employee from acting in
a manner which would cause a reasonable person, having knowledge
of the relevant circumstances, to conclude that any person can
improperly influence or unduly enjoy his favor in the performance
of his official duties, or that he is likely to act or fail to act
as a result of kinship, rank, position, or undue influence of any
parry or person. Any association between you and a private real
estate business might violate s.23(b)(3) in that for example it
might cause the conclusion that your associates or employers in the
real estate business could improperly influence you or unduly enjoy
your favor in the performance of your official duties to inspect,
serve notices, and placard buildings. The final sentence of
s.23(b)(3) provides a way for you to avoid a violation of the
section by making a written disclosure to


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your appointing authority.[4] Nevertheless, even if you were to
make such a disclosure, it may be that s.23(b)(1) precludes your
association with any real estate business in Boston so long as you
continue to be employed as a housing inspector for the City of
Boston. Section 23(b)(1) prohibits your acceptance of other
employment involving compensation of substantial value, the
responsibilities of which are inherently incompatible with the
responsibilities of your public office.

In sum, because of the restrictions of all three of these
sections, you should request an opinion from the Commission's Legal
Division before acting as a real estate salesman in Boston or
accepting employment with a real estate concern which does business
in Boston. You should also request such an opinion before taking
any action to bring together anyone with whom you have official
business as a housing inspector and any of your friends or former
employers and associates in the real estate business.

III. Disposition

Based on its review of this matter, the Commission has
determined that the sending of this letter should be sufficient to
ensure your understanding of, and your future compliance with, the
conflict law. This matter is now closed.

If you have any questions, please contact me at 727-0060.

---------------
[1] The actions which you took to relocate the woman include your
efforts to obtain temporary accommodation for her, your efforts to
find a buyer for her house, and your efforts to arrange a permanent
place for her in public housing. Specifically, they include placing
the woman in the Susse Chalet, arranging for Mr. Yanonis to
appraise 15 Lawrence Street, arranging for him and perhaps others
at The Real Estate Co., Inc. to contribute to the cost of the motel
stay, arranging for Mr. Yanonis and Mr. Schrier to meet the woman
with a view to their purchasing her property. and helping to
arrange her placement in housing in Quincy.

[2] An argument could also be made that you were acting as agent
for Rick Yanonis, Stuart Schrier, or The Real Estate Co., Inc. in
taking these actions to find the woman temporary and permanent
accommodations. It is irrelevant which of these private parties
you were acting as agent for, since s.17 bars acting as agent for
anyone other than the city or municipal agency.

[3] The Commission has no jurisdiction to enforce violations of
s.23 occurring before April 8, 1986. See St. 1986, c. 12, s.6;
Saccone v. State Ethics Commission, 395 Mass. 326(1985).

[4] The final sentence of s.23(b)(3) is as follows: "It shall be
unreasonable to so conclude if such officer or employee has
disclosed in writing to his appointing authority or, if no
appointing authority exists, discloses in a manner which is public
in nature, the facts which would otherwise lead to such a
conclusion."