Docket No. 316

In the Matter of Paul T. Hickson

June 25, 1987

Decision and Order



Appearing:

Robert A. Levite, Counsel for Petitioner
State Ethics Commission

Anthony C. Bonavita, Counsel for Respondent
Paul T. Hickson

Commissioners:

Diver, Ch., Basile, Burns, Epps, Gargiulo

DECISION AND ORDER


I. Procedural History

The Petitioner filed an Order to Show Cause on December
29,1986 alleging that the Respondent, Paul T. Hickson, was in
violation of G.L. c. 268A, s.20[1] by serving as an elected city
councillor for the City of Westfield (City) and as a maintenance
worker for the Westfield Housing Authority (WHA). In lieu of an
adjudicatory hearing, the Petitioner and Respondent stipulated to
the relevant facts, submitted briefs, and orally argued before
the full Commission on June 8,1987. Based upon a review of the
evidence and arguments presented by the parties, the Commission
makes the following findings and conclusions.

II. Findings

A. Jurisdiction

The parties have stipulated that the Respondent, in his
capacity as an elected city councillor, is a municipal employee
within the meaning of G.L. c. 268A, s.1(g).[2]

B. Findings of Fact

1. The Respondent has been employed as a WHA maintenance
worker for approximately four years and is paid $20,000 annually.

2. The Respondent has also served as an elected city councillor in the City for approximately three years and is paid $4,000 annually.

3. On September 10, 1985 the Westfield City Solicitor rendered
an opinion stating that there is "no express prohibition or
inherent wrong in a maintenance employee of the Housing Authority
being a member of the City Council..." Opinion of the City
Solicitor, September 10,1985.

4. On July 22,1986, the Commission advised the Respondent
through a compliance letter,[3] that as an elected city
councillor and a maintenance worker for the WHA, he had a
prohibited financial interest in a contract made by a municipal
agency of the same city, in which the city is an interested
party. The Commission noted that the city solicitor's advice was
incorrect under s.20 of the conflict of interest law. The
Commission informed the Respondent that the violation could be
cured if he resigned one of his municipal positions within thirty
days.

5. Notwithstanding receipt of the Commission's compliance
letter, the Respondent has continued to maintain both positions.

III. Decision


The Respondent, as a municipal employee, is prohibited by G.L.
c. 268A, s.20 from having a financial interest, directly or
indirectly, in a contract made by a municipal agency of the same
city in which the city is an interested party. The Respondent
stipulates that he is a municipal employee in his capacity as
city councillor. He also has a financial interest in his
employment contract with the WHA, a municipal agency, since he is
compensated to work pursuant to that contract. The WHA's
municipal agency status is plainly articulated in its enabling
statute, G.L. c. 121B, s.7. Consequently, the Respondent has a
prohibited financial interest in his employment contract with the
WHA, a municipal agency. By maintaining his position as a
maintenance worker for the WHA while also serving as a city
councillor for the City, we conclude that the Respondent has
violated and continues to violate G.L. c. 268A, s.20.[4]

This result is consistent with the Commission's conclusion in
a nearly identical case, In the Matter of Kenneth R. Strong, 1984
SEC 195, in which an elected common councillor violated s.20 by
also serving as a maintenance worker for the city housing
authority.[5]

The Respondent makes five arguments in support

Page 297

of his contention that he has not violated G.L. c. 268A: 1) WHA
is not a municipal agency because it is funded by the state; 2)
the Respondent does not knowingly have a financial interest in
his employment contract with a municipal agency; 3) the City is
not an interested party in any contract he may have with the WHA;
4) the Commission's application of G.L. c. 268A, s.20 deprives
him of his right to be elected under Part I, Art. 9 of the
Massachusetts Constitution thus depriving him of equal protection
of the law; and 5) that the Order to Show Cause contains various
procedural and constitutional defects. For the following reasons,
none of the contentions set forth above persuades us to overrule
the principles which we articulated in Strong and reaffirm today.

1. The enabling statute which establishes housing authorities,
G.L. c. 121B, provides that:

For the purposes of chapter two hundred and sixty-eight
A, each housing and redevelopment authority shall be
considered a municipal agency ...

Prior to the enactment of G.L. c. 121B and before the creation of
the State Ethics Commission, the Attorney General ruled that
housing authorities are municipal agencies for the purposes of
G.L. c. 268A. Attorney General Conflict Op.25 (April 16,1963).
G.L. c. 121B codified this conclusion.

The plain language of G.L. c. 121B is conclusive as a matter
of law that the WHA is a municipal agency. The Respondent's
assertion that the source of the funding for his DHA salary is
federal and state money does not alter this conclusion. The
Legislature enacted G.L. c. 121B with the presumed knowledge that
housing authorities received funds from various sources,
including the state and federal government. Respondent's argument
that the source of funding for his WHA salary renders the WHA
something other than a municipal agency is an argument the
Respondent has with c. 121B, not with the application of the
conflict law.

2. The Respondent is employed by the WHA, a municipal agency,
and is paid $20,000 annually. To the extent that the Respondent
claims that he had no knowledge of his financial interest in a
municipal contract, this question was definitively resolved when
the Commission notified him in July of 1986 that he was in
violation of G.L. c. 268A, s.20. To the extent that he claims he
did not have knowledge because his employment was not a contract
made by a municipal agency, we have previously addressed this
question in 1.[6]

3. In the Strong decision, we held that the City is also
an interested party to contracts the [housing authority]
enters into with Respondent, a municipal employee of the
City. The nature of the establishment and operation of a
housing authority demonstrate that the City is an interested
party in the activities of the (housing authority). Its
enabling statute provides that no housing authority may
transact business or exercise its powers until a need for
the authority has been determined by city officials. Four of
the five housing authority members are appointed by the
mayor. G.L. c. 121B, s.5. The City's status as an interested
party is also reflected in its statutory responsibility to
provide safe and sanitary dwellings for families or elderly
persons of low income. See G.L. c. 121B, s.3. Strong at 196.

This conclusion applies equally here. The Respondent has offered
no argument which rebuts this reasoning nor are we aware of any
facts in this case which would warrant a different conclusion.

4. The Respondent also challenges the application of G.L. c.
268A on constitutional grounds, arguing that Chapter 268A, s.20
deprives the Respondent of his right to hold elective office
under Part 1, Art. 9 of the Mass. Constitution. This argument was
addressed and definitively resolved in Strong. In Strong, we
noted that the right "to be elected" is not absolute. See,
Opinion of the Justices, 375 Mass. 795,811(1978). The conflict of
interest law does not interfere with Hickson's right to be
elected. Rather, it requires that, if elected, the City
Councillor "refrain from contracting with an agency of the same
municipality." Conley v. Ipswich, 352 Mass. 201, 205(1967).
Strong, supra at 196-197.

5. The Respondent has raised certain constitutional claims and
argues various procedural defects in the Commission's Order to
Show Cause, although he neither pursued these claims in his brief
nor in oral argument. These contentions are addressed briefly.

The Respondent argues that the Order to Show Cause is barred
by the statute of limitations.[7] Irrespective of the
Respondent's argument, the statute does not bar enforcement
actions against ongoing violations of the law. Hickson presently
is violating the law, and the petitioner's case against Hickson
is based on these continuing violations.[8]



IV. Penalty



Following a finding of a violation of G.L. c. 268A, the
Commission is authorized by G.L. c. 268B, s.4(j) 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 $2,000 for each violation of G.L. c. 268A. The
Respondent has been aware since July 22,1986 of the consequences
under s.20 of his retaining his position as a city councillor in
the City and as maintenance worker for the WHA. The Respondent
has been collecting two paychecks, one of which he was not
entitled to and by which he has profited in violation of the law.
In addition, the Commission has precedent

Page 298

squarely on point, In the Matter of Kenneth R. Strong, 1984 SEC
195, which definitively concluded that an individual may not be
paid simultaneously to be a city councillor and housing authority
employee. However, the Respondent did rely, at least up until July,
1986, on incorrect legal advice and, therefore, the Commission will
not levy a maximum penalry. Nonetheless, the Cormmission orders
the following sanctions to reflect the seriousness with which it
views the Respondent's continuing violation of the statute, in
light of the ample notice given to the Respondent, and in
consideration of the city solicitor's earlier opinion.

V. Order

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


1. Cease and desist from violating G.L. c. 268A, s.20 by
either resigning as a city councillor or terminating his
financial interest in his employment contract as a maintenance
worker for WHA within thirty (30) day's of the date of this
Decision and Order; and


2. pay five hundred dollars ($500) to the Commission as a
civil penalty for violating G.L. c. 268A, s.20.

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

[1] G.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 city in which the city is an
interested party of 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. G.L. c. 268A. s.1(g).

[3] A compliance letter is issued in certain cases in which the
Commission concludes that there are sufficient facts to warrant a
finding of reasonable cause to believe the law has been violated
but in which a formal adjudicatory proceeding may not be
appropriate at that time. The letter notifies the individual that
any further acts in violation of the law may he pursued in the
context of a formal proceeding. See State Ethics Commission
Enforcement Procedures, s.12 Compliance letters.

[4] None of the exemptions provided by G.L. c. 268A, s.20 to
special municipal employees is available to the Respondent.
Specifically. G.L. c. 268A s.1(n) expressly prohibits a member of
a city council from being designated a special municipal employee.

[5] This conclusion was affirmed by the Superior Court. Strong v.
State Ethics Commission, Suffolk Superior Court Civil Action No.
72374 (April 30, 1985). The Superior Court decision was later
vacated on jurisdictional grounds which are no longer relevant in
light of the enactment of St. 1986 c. 12.

[6] We find no persuasive reason to conclude that c. 121B only
applies to a limited number of housing authority employees.

[7] The Conflict of Interest Statute of Limitations provides that
an Order to Show Cause must be issued within three years of the
date upon which a disinterested person learned of the violation.
930CMR 1.02(10)(a).

[8] We address the other procedural defects raised by Hichson by
noting that the Order to Show Cause articulates the elements of a
s.20 violation, thereby stating a claim upon which relief can be
granted, G.L. c. 268B, s.3(i) gives the Commission jurisdiction to
act as the civil enforcement agency for conflict of interest
violations and although Hickson claims that the Commission is
estopped from enforcing its Order to Show Cause, there is no
factual or legal basis for this contention. Hickson has not
demonstrated that his right to due process has been infringed as
a result of the petitioner's maintaining the confidentiality of
the complainants identity. Moreover, the parties have stipulated
to all the facts which form the basis of the petitioner's case, and
the identity of the complainant is irrelevant now.