| Date: | 10/16/1984 |
|---|---|
| Organization: | State Ethics Commission |
| Docket Number: | 259 |
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.
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.
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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.
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, 326 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.
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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.
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.
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).
