Docket No.: 156


IN THE MATTER OF DAVID I. FLEMING, JR.


Appearing: David J. Burns, Esq.: Counsel for the Petitioner, State Ethics Commission Richard F. Fell, Esq.: Counsel for the Respondent, David I. Fleming, Jr.


Commissioners: Vorenberg. Ch., Brickman, McLaughlin, Mulligan


Date: November 18, 1982

DECISION AND ORDER

I. Procedural History


The Petitioner filed an Order to Show Cause on May 27, 1982
alleging that the Respondent, David I. Fleming, Jr., had violated
s.7 of M.G.L. c. 268A, the conflict of interest law. The Respondent
filed an Answer which denied any violation of the law.

The Petitioner filed a Motion for Summary Decision and
submitted a brief in support thereof on October 1, 1982. Pursuant
to notice, a hearing on the motion was conducted on October 6,1982
before Commissioner David Brickman, a duly


Page 119

designated presiding officer. See, M.G.L. c. 268B, s.4(c). The
parties thereafter filed posthearing briefs and presented oral
argument before the full Commission on November 9, 1982. In
rendering this Decision and Order, the four participating members
of the Commission have considered the evidence and arguments
presented by the parties.


II. Findings of Fact


1. Mr. Fleming is a Court Officer at the West Roxbury District
Court (the Court).

2. Mr. Fleming's working hours at the Court are from 8:30 a.m.
to 4 pm., Monday through Friday, and he earns $22,728 per year from
the Court.

3. Mr. Fleming is also employed by the Massachusetts Bay
Transportation Authority (MBTA) as an Assistant Automotive
Maintenance Foreman. He began working for the MBTA in January,
1962.

4. Mr. Fleming's working hours at the MBTA are from 12 am. to
7 am. on Saturday, and from 1 a.m. to 8 am. on four other days.

5. During the calendar year 1981, Mr. Fleming earned $34,109
from the MBTA.


III. Decision


For the reasons stated below, the Commission concludes that
Mr. Fleming is in violation of M.G.L. c. 268A, s.7 by having a
financial interest in a contract made by a state agency.

A. The MBTA as a state agency

Section 7 prohibits a state employee from having a direct or
indirect financial interest in a contract made by a state agency
in which the Commonwealth or a state agency is an interested party.
Mr. Fleming admits that he is a state employee under M.G.L. c.
268A, s.1(q) by virtue of his position with the Court but denies
that the MBTA is a state agency under M.G.L. c. 268A, s.1(p). Mr.
Fleming argues that the MBTA is an independent authority comparable
in structure to the Massachusetts Turnpike Authority (MTA) and the
Massachusetts Port Authority (Massport) which he contends are not
state agencies under s.1(p). Mr. Fleming is correct in his
interpretation that the MBTA, the MTA and Massport are independent
state authorities but his contention that they are not state
agencies within the meaning of s.1(p) is erroneous.

For the purposes of M.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. M.G.L. c. 268A, s.1(p). (emphasis
added)

This definition includes the MBTA, the MTA and Massport. This
conclusion is consistent with previous Commission and Attorney
General Advisory Opinions. Attorney General Conflict Opinion Nos.
795 and 823 specifically conclude that the MBTA is a state agency
for the purposes of M.G.L. c. 268A, s.1(p). Furthermore, Commission
Advisory Opinions EC-COI-82-84, 81-127 and Attorney General
Conflict Opinion No. 556 define the MTA and Massport as state
agencies within the meaning of s.1(p). The identical conclusion is
fully discussed in the Decision and Order of In the Matter of Henry
M. Doherty, a companion case issued today.[1]

B. Mr. Fleming's financial interest in the MBTA contract

Mr. Fleming contends that his financial interest in the MBTA
contract does not violate M.G.L. c. 268A, s.7, and he raises two
arguments in support of his position.

1. Mr. Fleming initially maintains that M.G.L. c. 268A, s.7
was not intended to cover employment contracts. The Commission has
rejected this argument in the Doherty matter and does so in the
instant case as well. The Commission has consistently found that
contracts for personal services, such as employment contracts, are
within the purview of s.7. EC-COI-80-118, 80-97 and 80-88. See,
Buss, The Massachusetts Conflict of Interest Statute: An Analysis,
45 B.U.L. Rev. 299, 368,372(1965). Furthermore,

Page 120

since the policy behind s.7 is to prevent state employees from
using their positions to influence the awarding of state contracts
in a way beneficial to themselves, Mr. Fleming's interpretation is
too limited and defeats the legislative intent of this section.

2. Mr. Fleming further alleges that the applicability to the
MBTA of statutes other than the conflict of interest law govern
whether the Commission may apply M.G.L. c. 268A in this case. In
support of this allegation, Mr. Fleming relies on M.G.L. c. 30,
s.21 which prohibits a person from receiving two salaries from the
treasury of the Commonwealth. He maintains that since M.G.L. c.
268A, s.7 and M.G.L. c. 30, s.21 address the same issue, his
compliance with M.G.L. c. 30, s.21 satisfies the requirements of
M.G.L. c. 268A, s.7. The Commission also rejects this argument.

The Commission finds here, as in the Doherty matter, that the
scope of the prohibition in M.G.L. c. 268A, s.7 is broader than the
restrictions of M.G.L. c. 30, s.21. The former does not address the
source from which the funds derive, but prohibits state employees
from having a financial interest in a state contract irrespective
of whether the funds pas through the treasury of the Commonwealth.
Moreover, the Commission has concluded in an Advisory Opinion that
a state employee violated M.G.L. c. 268A, s.7 notwithstanding his
compliance with M.G.L. c. 30, s.21. See, EC-COI-82-102.

C. Affirmative Defense:

Mr. Fleming does not formally raise any affirmative defenses,
but he makes certain legal and equitable arguments which warrant
discussion.

1. Grandfather Clause

Mr. Fleming contends that the Court Reform Act, St. 1978, c.
478, s.328, has a "grandfather clause" which restricts the
enforcement of M.G.L. c. 268A. To support his contention, Mr.
Fleming argues that enforcement of M.G.L. c. 268A would adversely
affect his seniority and retirement rights in violation of St. 1978
c. 478, s.328.[2] However, the Commission finds that the
"grandfather clause" of St. 1978 c. 478, s.328 does not address
M.G.L. c. 268A. Further, since the Commission's actions do not
affect the benefits that Mr. Fleming has previously acquired, there
is no conflict between this enforcement action and St. 1978 c. 478,
s.328.

2. Laches

Mr. Fleming also alleges that he has relied on the inaction
of law enforcement agencies to his detriment. Mr. Fleming contends
that the Commonwealth had an obligation to notify him that he was
in violation of the law upon the passage of St. 1978 c. 478. For
the reasons stated in Doherty, the Commission rejects this
argument. There is no evidence in the record which indicates that
any law enforcement agencies of the Commonwealth knew of Mr.
Fleming's dual employment arrangement prior to the initiation of
this proceeding. Moreover, the defense of laches is not available
to an individual against a public agency authorized to enforce the
laws of the Commonwealth. The Board of Health of Holbrook v.
Nelson, 351 Mass. 17 (1966).


IV. Order


On the basis of the foregoing, the Commission concludes that
David I. Fleming, Jr. is in violation of M.G.L. c. 268A, s.7.
Pursuant to the Commission's authority under M.G.L. c. 268B,
s.4(d), the Commission orders that Mr. Fleming cease and desist
from such violation and pay the civil penalty as set forth
below.[3] Accordingly, the Commission orders David I. Fleming, Jr.
to:

Page 121

1. Cease and desist from violating M.G.L. c. 268A, s.7 by
terminating one of his employment arrangements with the state.

2. Pay $100 (one hundred dollars) to the Commission as a civil
penalty for having a financial interest in a contract made by the
MBTA in violation of M.G.L. c. 268A, s.7.

The Commission directs Mr. Fleming to comply with these orders
within fourteen days of receipt of this Decision and Order.

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

[1] Mr. Fleming also argues that because M.G.L. c. 258, s.1
(the Sovereign Immunity Act) excludes the MBTA from its definition
of public employer, the MBTA cannot he a state agency for the pure
of M.G.L. c. 268A. However, the exclusion of the MBTA from M.G.L.
c. 268, s.1 is neither inconsistent with, nor relevant to the
Commission's conclusion that the MBTA is a state agency under c.
268A, s.1(p).

[2] The pertinent language of St. 1975 c. 478, s.328 states
that". . . appointive personnel employed in the judicial system of
the Commonwealth shall continue to serve therein... without loss
of seniority, vacation or retirement rights."

[3] Consistent with the Doherty matter, the Commission has
considered certain mitigating factors which furnish a basis for the
commission's decision to impose a less-than-maximum penalty.
Because this and Doherty are the first Commission Adjudicatory
Decisions involving a violation of M.G.L. c. 268A, s.7. the
commission concludes that a minimum fine together with a cease and
desist order is an appropriate sanction. However, subsequent cases
based upon comparable violations of s.7 will be subject to a more
substantial civil fine.

End Of Decision