Docket No. 330

In the Matter of Michael Riley

February 24, 1988

Decision and Order

Appearing:

Robert L. Levite, Esq.
Counsel for the Petitioner

Matthew E. Dwyer, Esq.
Counsel for the Respondent

Commissioners:

Diver, Ch., Basile, Epps, Gargiulo, Jarvis



I. Procedural History

Michael Riley (Respondent), has served since 1983 as a full time
custodian with the Boston Public Library and also as a full time
custodian for the Boston School Department On July 18, 1986,
Respondent was sent a letter by the Enforcement Division of the
State Ethics Commission explaining G.L. c. 268A, s.20 and its
application to his employment arrangement. The letter informed him
that s.20 prohibits a municipal employee from having a financial
interest in a contract with an agency of the same municipality and
that, as a School Department custodian, he was a municipal employee
who has a financial interest in the compensation he receives as
Library cust

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odian. He was directed to inform the Enforcement Division within
thirty days of his plans to resolve the matter. Respondent admits
that he received this letter but elected not to resign from either
position.

On February 23, 1987, the Commission voted to initiate a
preliminary inquiry into whether the Respondent had violated s.20.
On that same date, the Commission also found reasonable cause to
believe that a violation of s.20 had occurred and authorized
adjudicatory proceedings.

On November 13, 1987, the parties submitted Stipulation of Facts
and Exhibits in lieu of a formal adjudicatory hearing. On January
5, 1988, the parties presented oral argument before the full
Commission. In rendering this Decision and Order, the Commission
has considered the stipulations, evidence and arguments of the
parties.

II. Findings of Fact

1. Respondent has been employed by the Boston Public Library
since July 9, 1976. On that date, Respondent was appointed
provisionally to the position of custodian by the Director of the
Library. Respondent's appointment was made pursuant to G.L. c. 31,
s.12, 13. Respondent served under his provisional appointment at
the Library from July 9, 1976 to October 9, 1984.

2. On October 8, 1984, alter Respondent's successful completion
of an open, competitive examination administered under G.L. c. 31,
s.16, Respondent was permanently appointed to the position of
custodian at the library and has since served therein on a full-
time, continuous basis.

3. On or about October 31, 1983, Respondent successfully
completed an open, competitive school custodian examination
pursuant to G.L. c. 31, s.16, 18 Respondent was permanently
appointed to the position ofjunior building custodian within the
Department of Facilities Management of the Boston School Committee
on November 27, 1984, and has since served at the Lewis Middle
School in that capacity on a full-time, continuous basis.

4. Respondent's hours of employment at the Boston Public Library
are from midnight to 8:00 a.m. His hours of employment with the
Boston School Department are from 2:30 p.m. to 11:00 p.m.

5. As of the date of this decision, Respondent has continued to
hold both his position at the Library and his position at the Lewis
Middle School, receiving compensation for each position.

6. Respondent was compensated for more than 500 hours work on
each job in calendar year 1986.

III. Discussion

Section 20 of G.L. c. 268A prohibits a municipal employee from
having a financial interest in a contract made by a municipal
agency ofthe same city and in which the city is an interested
party. Respondent concedes that he is a full-time salaried
custodian of the Boston School Department and, as such, is a
municipal employee within the meaning of s.1(g). Respondent also
concedes he has a financial interest in his employment contract
with the Boston Public Library, a municipal agency of the same
City. Therefore, Respondent has violated and continues to violate
s.20. In the Matter of Kenneth R. Strong, 1984 Ethics Commission
195;In the Matter of Paul T. Hickson, 1987 Ethics Commission 316;
see also, In the Matter of Henry M. Doherty, 1982 Ethics Commission
115.

Respondent initially questioned Commission precedents in
arguing that an individual does not have a financial interest" in a
personal service arrangement with his own municipality. That past
precedent established a reasonable proposition that, where a public
employee performs a service to a public agency in exchange for
compensation, he has a financial interest in a contract within the
meaning of the conflict law. As conceded by Respondent in oral
argument, any doubt upon the issue was recently settled by the
Supreme Judicial Court in the case of Robert J. Qinn v. State
Ethics Commission, 401 Mass. 210(1987), which held "barring an
exemption or exception under s.7, an employee of one state agency
may not receive compensation for performing personal services under
contract with another state agency.[1] Therefore, Respondent is a
full-time municipal employee who has a financial interest in his
second employment contract. Since no exemption applies[2]
Respondent has violated, and continues to violate G.L. c. 268A,
s.20.

IV. Remedy

In light of the remedial purposes of s.20, it is the
Commission's opinion that the public interest will be best served
by Respondent's resignation from one of his positions within thirty
days. This opinion is based on the fact that Respondent's status
as a municipal employee had no bearing on his obtaining his second
position nor compromised his services to the City. See, In the
Matter of Robert J. Quinn, 1986 Ethics Commission 265. Respondent
has offered to resign one of his two positions in light of the
recent pronouncement of the Supreme Judicial Court in Quinn, infra;
and thereby negate a need for a civil enforcement action. If
Respondent does not resign, on the other hand, the circumstances
of this case warrant a substantial fine. Past Commission precedent
and the past advice of the Enforcement Division have been
unequivocal. Any good faith reliance on Respondent's counsel's
representation of ambiguity regarding s.20 has now been resolved
by the Supreme Judicial Court. There is no possible continuing
justification for failing to resign one of the two positions.

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V. Order

Pursuant to the authority of G.L. c. 268B, s. 4(j) the
Commission orders Respondent to cease and desist continued
violation of G.L. c. 268A, s.20 by resigning one of his two
positions within thirty days of the date of notice of this
Decision.

If the Respondent continues to violate G.L. c. 268A, s.20 by
failing to resign one of his two positions within thirty days of
the date of this Decision, the Respondent will be ordered to pay
a civil penalty of one thousand dollars ($1,000.00).

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[1] Section 7 is the state counterpart to s.20.

[2] Specifically. the exemption in s.20(b) does not apply because
Respondent has worked more than 500 hours in both positions. (See
Finding of Fact 6).