Docket No.: 281


IN THE MATTER OF THOMAS NEWCOMB


Appearing:

Thomas J. Driscoll, Esq.:
Counsel for Petitioner State Ethics Commission

LawrenceJ. Ball, Esq.:
Counsel for Respondent Thomas Newcomb


Commissioners: Diver, Ch., Brickman, Burns, Sweeney


Date: July 16, 1985



DECISION AND ORDER


Page 246


I. PROCEDURAL HISTORY


The Petitioner initiated these adjudicatory proceedings on
February 25, 1985 by filing an Order to Show Cause pursuant to the
Commission's Rules of Practice and Procedure, 930 CMR 1.01 (5)(a).
The Order alleged that Respondent, Thomas Newcomb, director of
security for the Massachusetts Convention Center Authority (MCCA)
and Boston Police officer assigned to the MCCA, had violated G.L.
c. 268A. s. 4(a)11 by receiving compensation as a state employee
from the Boston Police Department (BPD) in connection with
decisions and determinations regarding security at the Hynes
Auditorium.

The Respondent's answers denied the material allegations and
raised certain affirmative defenses asserting the Commission's lack
of jurisdiction over the MCCA and the protection of a "grandfather
clause" contained in the MCCA's enabling legislation. St. 1982, c.
190, s. 38D.

An adjudicatory hearing was held on May 7 and 8, 1985 before
Commissioner Frances Burns, a duly designated presiding officer.
See G.L. c. 268B, s. 4(c). The parties filed post-hearing briefs
and presented oral argument before the Commission on June 18, 1985.
In rendering this Decision and Order, the Commission has considered
the testimony, evidence and arguments of the parties.


II. FINDINGS OF FACTS


1. The Respondent, Thomas Newcomb was at all times relevant
to the violations alleged in the Order to Show Cause, employed by
the MCCA as director of security at the Hynes Auditorium.

2. Mr. Newcomb worked weekdays from 7 am. to 3 p.m. as
director of security.

3. Mr.Newcomb worked nights and weekends as director of
security prior to his suspension from the MCCA payroll.

4. Mr. Newcomb has been employed by the BPD since 1960.

5. Mr. Newcomb receives $25,000.00 as a BPD officer.

6. Prior to January, 1982, Mr. Newcomb was assigned by
the BPD to Boston City Hall.

7. In December, 1981, then Mayor Kevin H. White requested
that the City Auditorium Commission appoint Mr. Newcomb director
of security for the Hynes Auditorium.

8. The Auditorium Commission voted that Mr. Newcomb be
appointed director of security at the Hynes Auditorium at a sum of
$8,000.00 a year. subject to the approval of the City Law
Department.

9. The corporation counsel approved the $8,000.00
compensation strictly from the viewpoint that the amount of
compensation was not excessive.

10. During 1982, the state legislature created the MCCA, St.
1982, c. 190. The statute provided for the conveyance of the Hynes
Auditorium and the Boston Common Garage to the MCCA, and further
provided that all employees holding full-time, permanent positions
at those two facilities would become employees of the MCCA "without
impairment of their civil service status, seniority, retirement and
other rights. . . provided that nothing in this section shall
be construed to confer upon any employee any rights not held prior to
the transfer."

11. In January, 1983, Mr. Newcomb became director of security
for the MCCA and received $8,000.00 per year for that employment.

12. Mr. Newcomb continued to be paid $25.000.00 by the BPD for
his assignment at the Hynes Auditorium.

13. In April, 1983, at the direction of the deputy director
of the MCCA, Mr. Newcomb sought an advisory-opinion from the
Commission concerning whether or not his continued assignment by
the BPD to MCCA while also being employed as director of security
by the MCCA violated G.L. c. 268A.

14. The Commission issued an advisory opinion. EC-COI-83-
108[2] to Mr. Newcomb regarding his dual employment on July 19,
1983. The opinion stated that Mr. Newcomb's compensation by BPD for
his services during his assignment to the Hynes Auditorium. while
he was employed by the MCCA at the same site. violated s. 4 of G.L.
c. 268A.

15. Mr. Newcomb received notice of the advisory opinion in
November, 1983, but continued to accept compensation from both the
MCCA and the BPD until suspended by the MCCA.

16. Mr. Newcomb was suspended on February 1, 1984 from the
MCCA payroll. Following his suspension Mr. Newcomb continued to
work at the MCCA and the BPD from 7 to 3, but no longer agreed to
work nights and weekends.

Page 247


III. DECISION


For the reasons stated below, the Commission concludes that
Mr. Newcomb, in his capacity as a state employee. is in violation
of G.L. c. 268A, s. 4(a) by receiving compensation from the Boston
Police Department in relation to particular matters in which the
state is a party and has a direct and substantial interest.

A. The MCCA as a state agency

Mr. Newcomb contended that the MCCA is an independent
authority which is not subject to the jurisdiction of G.L. c. 268A.
The MCCA's enabling legislation, St. 1982, c. 190, s. 33
provides

There is hereby established and placed in the executive office
for administration and finance a body politic and corporate
to be known as the Massachusetts Convention Center Authority,
which shall not be subject to the supervision or control of
the executive office for administration and finance or any
department, commission, board, bureau or agency of the
common-wealth except to the extent and in the manner provided
in this act." (emphasis added)

Thus Mr. Newcomb argues that the enabling statute exempts the MCCA
from supervision or control by the State Ethics Commission.

The MCCA, however, was established in 1982 as an independent
state authority and a public instrumentality. See c. 190, s. 33.
For the purposes of G.L. c. 268A, "state agency" is defined as

any department of a state government including the executive,
legislative or judicial, and all councils thereof and
thereunder, and any division, board, bureau, commission,
institution, tribunal or other instrumentality within such
department and any independent state authority, district,
commission, instrumentality or agency, but not an agency of
a county, city or town. G.L. c. 268A, s. 1(p). (emphasis
added)

The Commission has issued several advisory opinions to members of
the MCCA, and has consistently considered the MCCA to be a state
agency. See EC-COI-82-150; 83-19. In its enforcement of the
conflict of interest law, the Commission is not exercising
supervision or control over the MCCA but is merely enforcing the
conflict of interest law with regard to the activities of public
employees. The language of chapter 190, s. 33 clearly establishes
the MCCA as an "independent state authority" and as such, it is
within the aforementioned definition of state agency.

B. The "grandfather clause" in St. 1982, c. 190, s. 38D, as
a bar to enforcement of G.L c. 268A, s. 4(a)


The MCCA's enabling legislation provides that all employees
at the Hynes Auditorium would become employees of the MCCA "without
impairment of their civil service status, seniority, retirement
and other rights. . .providing, however, that nothing in this
section shall be construed to confer upon any employee any rights
not held prior to the transfer." St. 1980. c. 190, s. 38D. Mr.
Newcomb maintains that since he was receiving two salaries prior
to the transfer of the Hynes Auditorium to the MCCA, s. 38D permits
him to continue the dual compensation arrangement.

In its Advisory Opinion addressed to Mr. Newcomb, however.
the Commission held that Mr. Newcomb's dual compensation was in
violation of s. 20 prior to the MCCA takeover in 1983, and that the
transfer of the Hynes Auditorium to the MCCA could not create a job
right which he did not previously have. Since no right to that dual
compensation arrangement existed prior to the creation of the MCCA,
in other words, and the enabling statute specifically precludes
conferring "any rights not held prior to the transfer," St. 1982,
c. 190. s. 38D does not bar the enforcement of s. 4 against Mr.
Newcomb.

Mr. Newcomb further claims as a defense under s. 38D of
chapter 190 that he has received prior approval from the City of
Boston corporation counsel before accepting the director of
security position at the MCCA. and therefore any violation of s.
4 was not a knowing violation. The evidence shows, however, that
the corporation counsel approved that arrangement strictly from the
viewpoint of compensation, i.e., that the total amount of
compensation was not excessive. and his memorandum fails to
consider the dual compensation with regard to G.L. c. 268A.
Furthermore, Mr. Newcomb's status has changed since the corporation
counsel's opinion was issued because he is now considered a state
employee as director of security, and as a state employee, he
cannot use a corporation counsel's opinion, regarding municipal
employment as a defense to his receipt of compensation from someone
other than the state.[5]

C. The Section 4 Violation

Mr. Newcomb was a state employee[4] as director of security
at the MCCA and received $8,000.00 in yearly compensation from the
MCCA. Mr. Newcomb also received $25,000.00 annual salary from the
BPD, and the factual issue in this matter is whether the BPD salary
constituted compensation from someone other than the commonwealth
in relation to particular matters in which the state was a party
or had a direct and substantial interest.

Prior to January of 1982, Mr. Newcomb was a Boston police
officer assigned to the Hynes Auditorium as director of security.
He received $8.000.00 in annual compensation from the Auditorium
Commission in addition to his regular BPD salary. Following the
takeover of the Hynes Auditorium by the MCCA. Mr. Newcomb

Page 248

became a state employee as director of security. There is no
evidence that his assignment by the BPD was changed. Rather the
evidence in the record demonstrates that Mr. Newcomb's compensation
from the BPD was for his performance of duties as director of
security at the Hynes Auditorium. When Mr. Newcomb was suspended
on February 21, 1984 from the MCCA payroll, he continued to report
to the Hynes Auditorium from 7 to 3 as director of security. Mr.
Newcomb's responsibilities remained the same after his suspension,
except that he no longer agreed to work nights and weekends.
Therefore, the logical and uncontested inference to be drawn is
that Mr. Newcomb's 7 to 3 workday at the Hynes Auditorium
constituted his assignment by the BPD.

The Commission has held that the supplementation of a state
employee's salary by a non-state party violated s. 4(a). In the
Commission Compliance Letter, Department of Mental Health 1981
State Ethics Commission 50, the Commission addressed an issue of
employees who were receiving additional compensation from nonstate
parties for services which were a part of their state duties. The
Commission stated that since the duties of the individuals involved
particular matters in which the state was a party or had a direct
and substantial interest, such salary supplementation violated s.
4(a).

The petitioner presented through exhibits and testimony facts
to substantiate that Mr. Newcomb's state employee salary was
supplemented by the BPD. Testimony indicated that in the course of
Mr. Newcomb's duties, he made decisions and determinations as to
the nature of security at the Hynes Auditorium. On two occasions
he performed internal investigations of crimes committed in the
Auditorium. He acted as the Hynes Auditorium liaison with the BPD
in arranging BPD details hired for MCCA special events. Therefore,
as a state employee, Mr. Newcomb received compensation from the BPD
in relation to these particular matters that the MCCA, a state
agency, had a direct and substantial interest.


IV. CONCLUSION AND ORDER


Mr. Newcomb was directed to request an advisory opinion
by the deputy director of the MCCA in the spring of 1983. The
Commission issued its opinion on July 19, 1983 indicating that his
continued assignment by the BPD to the MCCA while he was director
of security at the MCCA was in violation of G.L. c. 268A, s. 4(a).
Mr. Newcomb had notice of the advisory opinion in November, 1983.
Mr. Newcomb ignored the advisory opinion and continued to receive
his BPD salary in relation to services performed for the state. The
argument that Mr. Newcomb sought legal advice does not mitigate his
lack of compliance with the Commission's advisory opinion. Based
upon the foregoing, the Commission concludes that Thomas Newcomb
violated G.L. c. 268A, s. 4(a) by receiving compensation as a state
employee from the Boston Police Department in relation to
particular matters in which the state has a direct and substantial
interest.

Pursuant to its authority under G.L. c. 2688. s. 4(d) the
Commission orders Thomas Newcomb to:

1. Cease and desist from violating s. 4(a) by discontinuing
his receipt of compensation from the Boston Police Department in
relation to services he performs for the state: and

2. pay one thousand dollars ($1,000.00) to the Commission as
a civil penalty for violating G.L. c. 268A, s. 4(a) within thirty
(30) days of receipt of this Decision and Order.
_______________

[1] G.L. c. 268A. s. 4(a) provides that "no state 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 commonwealth or a state
agency, in relation to any particular matter in which the
commonwealth or a state agency is a party or has a direct and
substantial interest."

[2] This citation refers to a prior Commission conflict of
interest opinion including the year it was issued and its
identifying number. Copies of these and all other advisory
opinions are available (with identifying information deleted for
public inspection at the Commission offices.

[3] There is nothing in the record to indicate that Mr.
Newcomb knew about the corporation counsels memorandum, which was
actually issued to the chairman of the Auditorium Commission.
before this Commission adjudication commenced.

[4] Newcomb claims that he was a special state employee at
the MCCA. He did not present any evidence in the record to prose
this claim. Assuming he did hold the status of special state
employee, s. 4(a)(par. 7) could preclude him from receiving
compensation from the BPD because he would be receiving
compensation from a non-state party on a particular matter pending
in his state agency.

End Of Decision