Docket No.: 234


IN THE MATTER OF VERA C. HARRINGTON


Appearing: Marilyn Lyng O'Connell, Counsel for
Petitioner State Ethics Commission

Harvey F. Rowe, Jr., Counsel for
Respondent Vera C. Harrington


Commissioners: Diver, Ch.; Brickman, Burns, McLaugilin, Mulligan


Date: January 12, 1984



DECISION AND ORDER



I. Procedural History


The Petitioner filed an Order to Show Cause on September 27,1983
alleging that the Respondent, Vera C. Harrington, was in violation
of M.G.L. c. 268A, s.20[1] by serving as an elected member of the
Swampscott Board of Assessors (Board) and the chief clerk for the
Board. In lieu of an adjudicatory hearing, the Petitioner and
Respondent stipulated to the relevant facts, submitted briefs, and
orally argued before the Commission on December 13, 1983. In
rendering this Decision and Order, each member of the Commission
has reviewed the evidence and arguments presented by the parties.


II. Findings


A. Jurisdiction

The parties have stipulated that the Respondent, in her Capacity
as an elected Board member, is a municipal employee within the
meaning of M.G.L. c. 268A, s.1(g).[2] The board is a municipal
agency within the meaning of M.G.L. c. 268A, s.1(f).[3]

B. Findings of Fact

1. The Respondent has been employed by the Board since 1961 as
the chief clerk, a full-time position with a current annual salary
of $17,000.

2. The Respondent is, and has been since 1977, an elected member
of the Board and currently earns $1,000 a year in that position.

3. On October 19,1982, the Commission advised the Respondent
through a Compliance Letter that, as a municipal employee, her
financial interest in her employment contract as the chief clerk
to the Board was prohibited by M.G.L. c. 268A, s.20. The Commission
informed her that the violation could be cured if: 1) the selectmen
designated members of the Board as "special municipal employees,"
as defined in s.1(n) of M.G.L. c. 268A and granted her an exemption
under s.20(d); or 2) she resigned one of her positions.

4. On November 18, 1982, the Swampscott board of Selectmen voted
to designate temporarily the members of the Board as "special
municipal employees" as defined in s.1(n) of M.G.L. c. 268A,
allowing Harrington to qualify for the exemption to the
restrictions of M.G.L. c. 2268A, s.20 set forth in s.20(d).[4]

5. On May 12, 1983, the Board of Selectmen voted to discontinue
the designation of Board members as "special municipal employees."
[5]

6. Notwithstanding the elimination of her status as a special
municipal employee, the Respondent has maintained both her chief
clerk and Board member positions since May 12, 1983.


III. Decision


By maintaining her chief clerk position with the Board while
also serving as a Board member, the Respondent has violated, and
continues to violate G.L. c. 268A. s.20. As a municipal
employee, the Respondent is prohibited by s.20 from having a financial
interest, directly or indirectly, in a contract made by a municipal
agency of the same town. The Respondent's employment contract as
the chief clerk to the Board constitutes a prohibited financial
interest under s.20. It is well-established that the scope of the
contractual financial interests prohibited under G.L. c. 268A
includes contracts for personal services as well as for goods. In
the Matter of Henry M. Doherty, 1982 Ethics Commission 115, 116;
EC-COI-80-118, 80-97;

Page 166

Buss, The Massachusetts Conflict of Interest Statute: An Analysis,
45 B.U. Law Rev. 299, 368, 372(1965). Additionally, the Respondent
has a financial interest in the collective bargaining agreement
which covers a bargaining unit in which she is included as chief
clerk of the Board.

While it may be true, as the Respondent suggests, that a purpose
of s.20 was to prevent employees from abusing their public
positions to secure multiple municipal contracts, the plain
language establishes a preventive rule which assumes that any
employee is in a position to influence the awarding of contracts.
"Because it is impossible to articulate a standard by which one can
distinguish between employees in a position to influence and those
who are not, all will be treated as though they have influence."
Buss, supra 374. Thus, even though the Respondent's contract may
have preceded her election as a Board member, the statute
recognizes that, once elected as a Board member, the Respondent is
in a position to influence the maintenance or renewal of her
employment contract.

None of the exemptions under s.20 apply to the Respondent. In
particular, she does not qualify for the exemption under s.20(d)
because she is no longer a special municipal employee.

The Board of Selectmen did not exceed its authority by revoking
the classification of the position of Board member as a special
municipal employee. The classification process, by definition,
involves a judgment as to the needs of a governmental body at any
given time and is not irrevocable. The judgment as to whether to
relax the requirements of G.L. c. 268A rests with the Board of
Selectmen, and is subject to reevaluation as circulnstances change.
See, Buss, supra, 316-318. Nor did the voters implicitly condone
the Respondent's dual employment status by reelecting her as a
member of the Board. The statute prescribes the steps which a
municipal employee must follow to hold a financial interest in a
second municipal contract. There is no provision in s.20 for
overriding these steps by implication. Nor can such a result
reasonably follow from the defeat by the voters of the referendum
which would have permitted the Respondent to continue as a special
municipal employee.


IV. Penalty


Following a finding of a violation of G.L. c. 268A, the
Commission is authorized by M.G.L. c. 268B, s.4(d) to issue an
order requiring the violator to cease and desist from such
violation and requiring the violator to pay a civil penalty of not
more than $2000 for each violation of M.G.L. c. 268A. This is not
the first occasion which the Commission has applied M.G.L. c. 268A
to employment contracts, and the Respondent has been aware since
October 19, 1982 of the consequences under s.20 of her retaining
her chief clerk position while not having special municipal
employee status as a Board member. Accordingly, the Commission
orders the following sanctions to reflect the seriousness with
which it views the Respondent's continuing violation of the statute
and her disregard of prior determinations by the Commission.


V. Order


Pursuant to its authority under M.G.L. c. 268B, s.4, the
Commission orders the Respondent to:

1. Cease and Desist from violating M.G.L. c. 268A, s.20 by
either resigning as a Board member or terminating her financial
interest in her employment contract as the chief clerk to the Board
within fourteen (14) days of notice of this Decision and Order, and

2. Pay three hundred dollars ($300) to the Commission as a civil
penalty for violating M.G.L. c. 268A, s.20. In addition, if the
Respondent maintains her prohibited financial interest and fails
to comply with paragraph one of this order, the Respondent is
further ordered to pay the Commission a daily civil penalty of
fifty dollars for each day that the Respondent continues to be in
violation of s.20 up to a maximum of seventeen hundred dollars
($1700).

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

[1] M.C. L. c. 268A, s.20 prohibits a municipal employee from
having a financial interest, directly or indirectly, in a contract
made by a municipal agency of the same town, in which the town is
an interested party, in which financial interest the employee has
knowledge or reason to know.

[2] "Municipal employee" is defined as "a person performing
services for or holding an office, position, employment or
membership in a municipal agency, whether by election, appointment,
contract of hire or engagement, whether serving with or without
compensation, on a full, regular, part-time, intermittent, or
consultant basis, but excluding (1) elected members of a town
meeting and (2) members of a charter commission established under
Article LXXXIX of the Amendments to the Constitution." M.G.L. c.
268A, s.1(g).

[3] "Municipal agency" is defined as "any department or office of
a city or town government and any council, division, board, bureau,
commission, institution, tribunal or other instrumentality thereof
or thereunder." M.G.L. c. 268A, s.1(f).

[4] Section 20 does not apply "(d) to a special municipal employee
who files with the clerk of the town a statement making full
disclosure of his interest and the interests of his immediate
family in the contract, if the board of selectmen approve the
exemption of his interest from this section."

[5] Although the reasons for the "de-designation" are not included
in the record, the parties suggested in their briefs and oral
arguments that the voters at the annual town meeting in April, 1983
rejected an advisory referendum question which asked whether the
Board of Selectmen should continue to grant special municipal
employee status to Harrington.

End Of Decision