Decision  In the Matter of David I. Fleming, Jr.

Date:	11/18/1982
Organization:	State Ethics Commission
Docket Number:	156

• Appearance for Petitioner: David J. Burns, Esq.
• Appearance for Respondent: Richard F. Fell, Esq.
• Commissioners: Vorenberg. Ch., Brickman, McLaughlin, Mulligan

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

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designated presiding officer. See, M.G.L. c. 268B, s.4(c). The parties thereafter filed post-hearing 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 p.m.., 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, 

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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: 

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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