Docket No.: RE: PUBLlC ENFORCEMENT LETTER 87-1


Frederick B. Cronin,Jr.
c/o James Carrigan, Esq.
15 Johnson Street
Lynn, MA 01902

Date: August 27, 1986


Dear Mr. Cronin:

As you know, the State Ethics Commission has conducted a
preliminary inquiry regarding an allegation that as a tax collector
for the city of Lynn, you appointed your brother Ralph as a deputy
tax collector. The results of our investigation (discussed below)
indicate that the conflict of interest law was violated in this
case. In view of certain mitigating circumstances and action you
have agreed to take (also discussed below), the Commission has
determined that adjudicatory proceedings are not warranted. Rather,
the Commission has concluded that the public interest would
better be served by disclosing the facts revealed by our investigation and
explaining the application of the law to such facts, 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.

Page 270


A. THE FACTS


1. You have been the Lynn tax collector since the city council
appointed you in 1978. As such, you are a "municipal employee" as
defined in G.L. c. 268A, s.1(g).

2. As tax collector, you may appoint deputies pursuant to G.L.
c. 60, s.92. Your deputy appointments must be approved by the
Department of Revenue before they become effective. Your office
includes an assistant tax collector and three deputies.

3. Deputy tax collectors pursue collection of local taxes after
a taxpayer has failed to respond to the collector's demand letter,
which is sent once the tax liability has been delinquent for 30
days. The deputy sends the delinquent taxpayer a notice that a
warrant has been issued and may go to the taxpayer's home (or place
of business) with the warrant to collect the delinquent taxes.

A deputy tax collector does not receive a salary but receives
statutory fees that vary depending on what he has to do to collect
the delinquency. For example, a deputy is entitled to $7 for
sending out the notice of warrant and $12 for serving it on the
taxpayer in person. These fees are included in the money collected
from the delinquent taxpayer (as are interest and demand fees owed
the city.)

4. According to you and your assistant, the deputies turn over
the money they have collected to the chief deputy, who turns it
over to your assistant. (The chief deputy does not inform your
assistant how much each deputy has collected or earned in fees; he
gives her the money as a total of what the three deputies have
collected.) Taxpayers often come in to the office to pay the taxes,
interest and fees that they owe as well. Your assistant turns over
everything but the deputies' fees - i.e., tax receipts, interest
and fees to which the city is entitled - to the city treasurer. She
keeps the deputies' fees and, at the end of each week, gives the
chief deputy all the fees the deputies have earned during the week.
The chief deputy must sign that the amount your assistant is giving
him is the correct amount owed the deputies. He then makes the
distribution among the deputies. At the end of each month, your
assistant reports to the city treasurer on all the money (including
deputy tax collector fees) the tax collector's office has received.

5. According to you and your assistant, you do not have to sign
off on anything to approve payment to the deputies (nor do you sign
off on the monthly report to the treasurer).[1]

6. When you were appointed in 1978, you inherited the previous
tax collector's five deputies. Three of these have left (one died,
the other two resigned). You have appointed three deputies, two of
whom have since left (one voluntarily, the other when you declined
to renew his appointment after the first year).

7. In early 1984, the chief deputy whom you had inherited
decided to resign. You testified that you used your usual word-of-
mouth method to conduct your hiring search. City councilors
submitted names of possible candidates, and your brother Ralph
indicated his interest in the position. You chose your brother
because, you stated, you could count on his honesty, sobriety and
levelheadedness. You testified that you told the mayor, city
solicitor and all the city councilors that you had decided to
appoint your brother and they thought it was a good idea; you
stated that you did not explicitly seek their permission to hire
your brother because they have no role in the process. You
completed the Department of Revenue forms on the appointment and
obtained that department's approval of the appointment as required
by G.L. c. 60, s.92.

8. When we interviewed people to whom, you testified, you had
"disclosed" your intention to appoint your brother, a number
specifically recalled that you had told them of this intention
before you made the appointment. (Others had no specific
recollection of such a "disclosure" but said it could well have
occurred; still others recalled that they only learned of the
appointment after you had made it.)

9. Ralph Cronin officially became chief deputy tax collector in
March 1984. You have reappointed him twice. It is Ralph's full-time
job. He has netted approximately $35,000 from fees annually (after
his mailing expenses are deducted) both years he has served.


B. The Conflict law


Section 19 prohibits a municipal employee from participating as
such in a matter in which a member of his immediate family has a
financial interest. This section thus would prohibit you, as Lynn
Tax Collector, from appointing your brother to a position like
deputy tax collector, in which he has a financial interest because
of the fees he will have the opportunity to earn. The facts as set
forth in this letter, if proven, would establish violations of s.19
because they would indicate that you have appointed and reappointed
your brother as chief deputy tax collector for the city of Lynn.

Section 19 does, however, include a procedure involving
disclosure to an official's appointing authority by which the
official may avoid violating s.19. That procedure requires that
before the official takes the action with respect to an immediate
family member, the official make a full disclosure to his
appointing authority of his proposed action and the immediate
family member's financial interest in it; the appointing authority
may then, in writing, authorize the official to take the action
because the financial interest "is not so substantial as to be
deemed likely to affect the integrity of the services which the
municipality may expect" from the official.

Page 271



You have asserted that you, in effect, conformed with the spirit
(although not the letter) of this disclosure procedure. Our inquiry
indicated that you did inform, albeit informally, many (perhaps a
majority) of the city councilors, your appointing authority, and
the mayor before you appointed your brother Ralph initially.
Because of this, the Commission has decided that this case does not
warrant the initiation of formal adjudicatory proceedings. Rather,
the Commission has determined that a public enforcement letter is
appropriate and that your brother should resign as chief deputy tax
collector. Further, you have agreed that you will follow the proper
s. 19(b) disclosure procedure (discussed above) should you decide
you want to appoint him again. Before you appoint him, then, you
must formally inform the Lynn City Council that you propose
appointing your brother as chief deputy and you must disclose to
the council that he will earn fees in the position and thus has a
financial interest in it. Only if a majority of the city council
determines and notifies you, in writing, that your brother's
financial interest in his position is not so substantial as to be
deemed likely to affect the integrity of the services which the
city may expect from you. may you make the appointment.[2] Should
the council make such a determination, you will need to follow this
procedure each year when you resubmit your brother's bond to the
Department of Revenue and thereby, in effect, reappoint him.[3]

You and the city council should also be aware that s.19 applies
not only to appointments but would apply to any matter in which
you, as tax collector, participate and in which your brother has
a financial interest. For example, absent an exemption from the
city council, you could violate s.19 if you were involved in
assigning collection cases to your brother or in approving payment
of fees to your deputies.


C. 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 will be closed once we have received
evidence of your brother's resignation. Thank you very much for
your cooperation. If you have any questions, please contact me at
(617)727-0060.

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

[1] Whether this procedure comports with the reporting
responsibilities of the tax collector set out in G.L c. 60,s.s.2,16
is beyond the scope of this letter.

[2] The Commission is aware that, pursuant to s.5 of the Overlay
Deficit Act of 1985. it is the municipality's Chief Financial
Officer who now appoints the tax collector. Since your appointing
authority was the city council, however, and since you became
tenured prior to enactment of the 1985 law, it is the city council
which should make the determination pursuant to s.19(b).

[3] In addition. s.,3 the standards of conduct section of c.
268A prohibits a public official from acting in a manner which would
cause a reasonable person having knowledge of the relevant
circumstances, to conclude that he is likely to act or fail to act
as a result of someone's kinship. See, s.23(b)(3).You may run afoul
of this prohibition where your brother is chief deputy by virtue
of ypur general responsibilities to oversee and supervise the
conduct of the people in your office. The exemption procedure
authorized under s. 19, however, should also serve to resolve any
questions under s.23(b)(3).

If you do reappoint your brother after receiving city council
approval, you should bear in mind that s.23 also prohibits a public
official from using or attempting to use his official position to
secure for himself or someone else unwarranted privileges or
exemptions which are of substantial value and which are not
properly available to similarly situated individuals. You must
therefore take care not to treat your brother any better than any
other of your deputy tax collectors.

End Of Decision