Public Enforcement Letter 99-4

Frank Martin
c/o Michael Early, Esq.
114 Washington Street, Rear
Haverhill, MA 01832

April 21, 1999

Dear Mr. Martin:

As you know, the State Ethics Commission
("Commission")has conducted a preliminary inquiry into allegations
that you violated the state conflict of interest law, G.L. c. 268A,
by receiving compensation from or acting as an agent for private
parties in relation to City of Lawrence Fire Department ("Fire
Department") matters. Based on the staff s inquiry (discussed
below), the Commission voted on November 18, 1998, that there is
reasonable cause to believe that you violated the state conflict of
interest law, G.L. c. 268A, s. I 7(a) and (c). The Commission,
however, 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
attention of the general public, the facts revealed by the
preliminary inquiry and by explaining the application of the law to
such 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 have been a full-time Lawrence firefighter for
approximately 13 years. You currently earn $50,000 per year as a
firefighter.

2. Since 1993 you have done business as Martin Oil Burner
Service & Underground Tank Removal, located at 15 North Boylston,
Lawrence, Massachusetts. In this business you install and service
oil burners and remove fuel storage tanks.

3. The Lawrence Fire Department requires permits for the
removal of any tank which has been used for

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the storage of flammable materials. These typically involve
underground tanks such as full storage tanks, as well as tanks
located in buildings such as basement oil heating tanks.[1/]

4. The Fire Department conducts on- site inspections when
underground tanks are removed. The Fire Department acts as an extra
set of eyes for the state DEP by watching for any signs of soil
contamination and insuring that the tank is empty. No inspection
occurs with basement tanks. As to both underground and basement
tanks, permits are held open until the property owner or contractor
returns the permit with a receipt evidencing proper disposal of the
tank. As to underground removals, because of the concern regarding
soil contamination, frequently, an environmental consultant is
hired to observe the removal and file a report with the property
owner. In the event of a determination of soil contamination, the
property owner has 48 hours to notify the DEP.

5. You were paid in connection with 29 tank removals in
the City of Lawrence between March 1994 and April 1997.[2/] The
Fire Department issued a permit for each such removal. Of those 29
permits, 26 involved you pulling the permit from the Fire
Department.[3/] Fourteen of those 29 involved underground tank
removals, and the remainder involved above-ground tanks such as
basement heating fuel tanks. You were paid anywhere from several
hundred to several thousand dollars for each job depending on the
circumstances.

6. We uncovered no evidence to suggest you used your Fire
Department position to benefit your private business, or that
customers chose you because of your Fire Department position.[4/]


II. Discussion


As a City of Lawrence firefighter you are a municipal
employee as that term is defined in G.L. c. 268A, s. 1. General
Laws c. 268A, s. 17(a) prohibits a municipal employee, otherwise
than in the proper discharge of his official duties, from receiving
compensation from anyone other than the city in relation to any
particular matter in which the city is a party or has a direct and
substantial interest. General Laws c. 268A, s. I 7(c) prohibits a
municipal employee, otherwise than in the proper discharge of his
official duties, from acting as agent for a private party in
connection with any particular matter in which the city is a party
or has a direct and substantial interest.

Decisions to issue permits for tank removals are
particular matters.[5/] The city has a direct and substantial
interest in these matters because those permits involve activities
which can potentially significantly affect the public health and
safety. You received compensation for the tank removal work you did
in relation to a permit on each of the 29 occasions described
above. Furthermore, you acted as an agent for your clients in each
of the 26 occasions when you pulled the permit.

By accepting payment for tank removal work, you received
compensation from someone other than the City of Lawrence in
relation to particular matters in which the city had a direct and
substantial interest. Therefore, there is reasonable cause to
believe you violated s. I 7(a). In addition, by "pulling" permits
on 26 occasions, you acted as agent for someone other than the city
in relation to particular matters in which the city had a direct
and substantial interest. Therefore, there is reasonable cause to
believe you violated s.17(c). See, e.g., Townsend, Jr., 1986 SEC 2
76 (disposition agreement in which Conservation Commission member
pays$ 1,000 fine for violating s. 17(a) and (c) by acting as a paid
engineer on behalf of private client in relation to Conservation
Commission matters.)


III. Disposition


The Commission is authorized to resolve violations of
G.L. c. 268A with civil penalties of up to $2,000 for each
violation. The Commission chose to resolve this case with a public
enforcement letter, rather than pursuing a formal order which might
have resulted in a civil penalty, because it believes there is need
for further education on this issue.[6/]

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.

This matter is now closed.

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

[1/] General Laws c. 148, s.38A prohibits any "underground
tank" which has been used for the keeping or storage of flammable
or combustible fluids from being removed unless a permit for such
removal has first been obtained from the state fire marshal or the
official designated by him to grant permits in the city where the
tank is located. Section 38A goes on to provide that any violation
of any regulation adopted by the Massachusetts Board of Fire
Prevention Regulations with respect to a tank removal shall be
presumed to constitute irreparable harm to the public health,
safety, welfare and the environment. In your view, c. 148, s.38A
does not apply to basement tanks. Both the Department of Public
Safety Underground Storage Tank Department and the Lawrence Fire
Department, however, take the position that c. 148, s.38A does
apply to basement tanks.

[2/] March 1994 was the first month in which we found a record
for such work.

[3/] As to the three instances in which you did not pull the
permit, the home-owner pulled one, and a licensed site professional
who hired you to remove the tanks pulled the other two.

[4/] Your Fire Department duties do not include any
involvement in issuing these tank removal permits or conducting the
inspections.

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[5/] No municipal employee shall, otherwise than as provided
by law for the proper discharge of official duties, directly or
indirectly receive or request compensation from anyone other than
the city or town or municipal agency in relation to any particular
matter in which the same city or town is a party or has a direct
and substantial interest.

[6/] Although this is the first time the Commission has
brought a public enforcement action regarding "pulling" permits or
work done in connection with those permits, the Commission has
previously stated through its published opinions that such actions
violate s. 17. See, e.g., EC-COI-92-1, 88-9 and 87-31. Moreover. it
should be noted that the Legislature has apparently endorsed the
Commission's position by carving out certain exemptions which allow
public inspectors to do work in relation to permits issued by their
own departments provided they do not inspect that work. See, e.g.,
G.L. c. 166, s.32A (a wiring inspector is also an electrician may
perform electric work in his own town provided that someone else
inspects that work). There are similar schemes for board of health
inspectors (G.L. c. I 11, s.26(g)), building inspectors (G.L. c.
143, s.3(z)), and plumbing and gas inspectors (G.L. c. 142, s.12).
Significantly, in 1998 the Legislature amended s. 17 to add
language expressly allowing a municipal employee to apply on behalf
of anyone for a building, electrical, wiring. plumbing, gas fitting
or septic permit and to allow that person to receive compensation
in relation to that permit, "Unless such an employee is employed by
or provide services to the permit-granting agency or an agency that
regulates the activities of the permit-granting agency." Through
all of these actions the Legislature appears to have recognized
that certain exemptions to s. 17 may be necessary to make local
government workable, but unless one qualifies for such an
exemption, a local public official who is also a contractor should
not pull a permit or do work in relation to that permit. The most
recent s. 17 amendment makes particularly clear that this should
not happen where the public employee is employed by the permit
granting agency, such as was the case in your situation. In light
of the Commission's prior publications and what appears to be a
legislative endorsement of its position, it now appears appropriate
to begin bringing public enforcement cases as to these types of s.
17 violations.

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End of Decision