Decision  In the Matter of Michael Riley

Date:	02/24/1988
Organization:	State Ethics Commission
Docket Number:	330

• Appearance for Petitioner: Robert L. Levite, Esq.
• Appearance for Respondent: Matthew E. Dwyer, Esq.

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 custodian. 

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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 of junior 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 of the 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. Quinn 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).

[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).