Docket No.: 259


IN THE MATTER OF KENNETH R. STRONG


Appearing: Marilyn Lyng O'Connell, Counsel for Petitioner State Ethics Commission; George W. Shinney, Jr., Thomas P. Callaghan, Jr., Counsel for Respondent, Kenneth R. Strong


Commissioners: Diver, Ch., Brickman, Burns, McLaughlin, Mulligan


Date: October 16, 1984



DECISION AND ORDER



I. Procedural History


The Petitioner filed an Order to Show Cause on July 6,1984
alleging that the Respondent, Kenneth R. Strong, was in violation
of G.L. c. 268A, s.20[1] by serving as an elected common councilor
for the city of Everett (City) and as a maintenance worker for the
Everett Housing Authority (EHA). 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 September 25, 1984. 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 common councilor, is a municipal employee within the
meaning of G. L. c. 268A, s.1(g).[2] Additionally, the EHA is a
municipal agency for the purposes of G.L. c. 268A. See, G.L. c.
121B, s.7.

Page 196

B. Findings of Fact

1. The Respondent has been employed as an EHA maintenance worker
for the last twelve years.

2. The Respondent has also served as an elected common councilor
in the City for the last twenty years.

3. On March 5, 1984, the Commission advised the Respondent
through a compliance letter,[3] that as an elected common councilor
and a maintenance worker for the EHA, 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 informed
him that the violation could be cured if he resigned one of his
municipal positions within twenty days.

4. 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
clearly has a financial interest in his employment contract with
the EHA, a municipal agency. By maintaining his position as
maintenance worker for the EHA while also serving as a common
councilor for the City, the Respondent has violated and continues
to violate G.L. c. 268A, s.20.[4]

The Respondent makes three arguments in support of his
contention that he has not violated G.L. c. 268A: 1) the City is
not an interested party in any contract he may have with the EHA;
2) the Commission's application of G.L. c. 268A, s.20 deprives him
of his right to be elected under Part 1, Art. 9 of the
Massachusetts Constitution thus depriving him of equal protection
of the law; and 3) s.20 violates the equal protection provision of
the U.S. Constitution because it treats selectmen differently from
common councilors. For the following reasons, the Commission finds
the Respondent's arguments without merit.

1. Contrary to Respondent's assertion, the City is necessarily
an interested party in Respondent's employment contract with EHA.
In Collins v. Selectmen of Brookline, 325 Mass. 562 , 567 (1950)
the court held that the principal activities of a housing authority
are localized in the municipality and are of immediate and direct
interest to the welfare of the municipality. Similarly, the City
has a direct interest in the activities of the EHA. In a case
construing G.L. c. 268A, s.20, Conley v. Ipswich, 352 Mass.
201(1967), the court held that a town was an "interested party" in
a contract made by an independently elected board of public welfare
and a selectman. The Conley court expressly rejected the argument
that the town was not an interested party in the contract because
of its limited participation in board of public welfare matters.

Here, the City is also an interested party to contracts the EHA
enters into with the 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 EHA. 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.

2. The Respondent's remaining arguments challenge the
application of G.L. c. 268A on constitutional grounds. The
Commission does not possess the judicial power to determine the
constitutionality of the statutes which it enforces. Nonetheless,
the Commission believes that G.L. c. 268A, s.20 is constitutionally
sufficient, and that the courts would sustain that position as
well. See, Massachusetts Public Interest Research Group v.
Secretary of the Commonwealth, 375 Mass. 85 (1978); In the Matter
of James R. Craven, 1980 Ethics Commission 17,20; aff'd sub nom.
Craven v. State Ethics Commission, 390 Mass. 191 (1983).

Chapter 268A, s.20 does not deprive the Respondent of his right
to hold elective office under Part 1, Art. 9 of the Mass.
Constitution. The right "to be elected" is not absolute. See
Opinion of the Justices, 375 Mass. 795 ,811(1978). Contrary to the
Respondent's assertion, G.L. c. 268A, s.20 does not disqualify
public employees as a class from holding elective office unless
they resign their means of livelihood.

Page 197

It merely requires that a businessman who chooses to run for
political office and upon election by virtue of G.L. c. 268A,
s.1, thereby becomes a municipal employee, is obliged to
refrain from contracting with an agency of the same
municipality. Conley v. Ipswich, 352 Mass. at 205.

3. The passage of an exemption to s.20 in 1982 limited to
members of boards of selectmen does not deny the Respondent the
equal protection of law. See, St. 1982, c. 107.[5] As the
Commission stated in EC-COI-83-38, the limitation of the exemption
to selectmen reflects a reasonable legislative judgment that
elected municipal officials who exercise legislative powers
comparable to city councilors should remain subject to the
provisions of s.20.


IV. Penalty


Following a finding of a violation of G.L. c. 268A, the
Commission is authorized by 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
$2,000 for each violation of G.L. c. 268A. The Respondent has been
aware since March 15, 1984, of the consequences under s.20 of his
retaining his position as a common councilor in the City and as
maintenance worker for the EHA. Accordingly, the Commission orders
the following sanctions to reflect the seriousness with which it
views the Respondent's continuing violation of the statute.


V. Order


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

1. Cease and desist from violating G.L. c. 268A, s.20 by
either resigning as a common councilor or terminating his
financial interest in his employment contract as a maintenance
worker for the EHA 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 G.L. c. 268A, s.20. In addition,
if the Respondent maintains his 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 ($1,700).

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

[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, 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 cornmission established under
Article LXXXlX 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 be 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 for
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.
For the purpose of s.1(n), common councilors are the equivalent of
city councilors.

[5] Under an equal protection analysis, the court employs a
relatively relaxed standard reflecting its awareness that the
drawing of lines that create distinctions is peculiarly a
legislative task. Dandridge v. Williams, 397 U.S. 471(1970). The
classification which Respondent contends is unconstitutional need
not be perfect. See Massachussetts Board of Retirement v. Murgia,
427 U.S. 307(1976), Personnel Admin. of Mass. v. Fancy, 442 U.S.
256(1979).

End Of Decision