Decision  In the Matter of Thomas Newcomb

Date:	07/16/1985
Organization:	State Ethics Commission
Docket Number:	281

• Appearance for Petitioner: Thomas J. Driscoll, Esq.
• Appearance for Respondent: Lawrence J. Ball, Esq.
• Commissioners: Diver, Ch., Brickman, Burns, Sweeney

I. Procedural History

The Petitioner initiated these adjudicatory proceedings on February 25, 1985 by filing an Order to Show Cause pursuant to the Commission's Rules of Practice and Procedure, 930 CMR 1.01 (5)(a). The Order alleged that Respondent, Thomas Newcomb, director of security for the Massachusetts Convention Center Authority (MCCA) and Boston Police officer assigned to the MCCA, had violated G.L. c. 268A. s. 4(a)11 by receiving compensation as a state employee from the Boston Police Department (BPD) in connection with decisions and determinations regarding security at the Hynes Auditorium. 

The Respondent's answers denied the material allegations and raised certain affirmative defenses asserting the Commission's lack of jurisdiction over the MCCA and the protection of a "grandfather clause" contained in the MCCA's enabling legislation. St. 1982, c. 190, s. 38D. 

An adjudicatory hearing was held on May 7 and 8, 1985 before Commissioner Frances Burns, a duly designated presiding officer. See G.L. c. 268B, s. 4(c). The parties filed post-hearing briefs and presented oral argument before the Commission on June 18, 1985. In rendering this Decision and Order, the Commission has considered the testimony, evidence and arguments of the parties.

II. Findings of Facts

1. The Respondent, Thomas Newcomb was at all times relevant to the violations alleged in the Order to Show Cause, employed by the MCCA as director of security at the Hynes Auditorium. 

2. Mr. Newcomb worked weekdays from 7 am. to 3 p.m. as director of security. 

3. Mr. Newcomb worked nights and weekends as director of security prior to his suspension from the MCCA payroll. 

4. Mr. Newcomb has been employed by the BPD since 1960. 

5. Mr. Newcomb receives $25,000.00 as a BPD officer. 

6. Prior to January, 1982, Mr. Newcomb was assigned by the BPD to Boston City Hall. 

7. In December, 1981, then Mayor Kevin H. White requested that the City Auditorium Commission appoint Mr. Newcomb director of security for the Hynes Auditorium. 

8. The Auditorium Commission voted that Mr. Newcomb be appointed director of security at the Hynes Auditorium at a sum of $8,000.00 a year. subject to the approval of the City Law Department. 

9. The corporation counsel approved the $8,000.00 compensation strictly from the viewpoint that the amount of compensation was not excessive. 

10. During 1982, the state legislature created the MCCA, St. 1982, c. 190. The statute provided for the conveyance of the Hynes Auditorium and the Boston Common Garage to the MCCA, and further provided that all employees holding full-time, permanent positions at those two facilities would become employees of the MCCA "without impairment of their civil service status, seniority, retirement and other rights. . . provided that nothing in this section shall be construed to confer upon any employee any rights not held prior to the transfer." 

11. In January, 1983, Mr. Newcomb became director of security for the MCCA and received $8,000.00 per year for that employment. 

12. Mr. Newcomb continued to be paid $25.000.00 by the BPD for his assignment at the Hynes Auditorium. 

13. In April, 1983, at the direction of the deputy director of the MCCA, Mr. Newcomb sought an advisory opinion from the Commission concerning whether or not his continued assignment by the BPD to MCCA while also being employed as director of security by the MCCA violated G.L. c. 268A. 

14. The Commission issued an advisory opinion. EC-COI-83- 108 [2] to Mr. Newcomb regarding his dual employment on July 19, 1983. The opinion stated that Mr. Newcomb's compensation by BPD for his services during his assignment to the Hynes Auditorium, while he was employed by the MCCA at the same site, violated s. 4 of G.L. c. 268A. 

15. Mr. Newcomb received notice of the advisory opinion in November, 1983, but continued to accept compensation from both the MCCA and the BPD until suspended by the MCCA. 

16. Mr. Newcomb was suspended on February 1, 1984 from the MCCA payroll. Following his suspension Mr. Newcomb continued to work at the MCCA and the BPD from 7 to 3, but no longer agreed to work nights and weekends. 

Page 247

III. Decision

For the reasons stated below, the Commission concludes that Mr. Newcomb, in his capacity as a state employee. is in violation of G.L. c. 268A, s. 4(a) by receiving compensation from the Boston Police Department in relation to particular matters in which the state is a party and has a direct and substantial interest.

A. The MCCA as a state agency

Mr. Newcomb contended that the MCCA is an independent authority which is not subject to the jurisdiction of G.L. c. 268A. The MCCA's enabling legislation, St. 1982, c. 190, s. 33 provides 

There is hereby established and placed in the executive office for administration and finance a body politic and corporate to be known as the Massachusetts Convention Center Authority, which shall not be subject to the supervision or control of the executive office for administration and finance or any department, commission, board, bureau or agency of the common-wealth except to the extent and in the manner provided in this act." (emphasis added)  

Thus Mr. Newcomb argues that the enabling statute exempts the MCCA from supervision or control by the State Ethics Commission. 

The MCCA, however, was established in 1982 as an independent state authority and a public instrumentality. See c. 190, s. 33. For the purposes of 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. G.L. c. 268A, s. 1(p). (emphasis added) 

The Commission has issued several advisory opinions to members of the MCCA, and has consistently considered the MCCA to be a state agency. See EC-COI-82-150; 83-19. In its enforcement of the conflict of interest law, the Commission is not exercising supervision or control over the MCCA but is merely enforcing the conflict of interest law with regard to the activities of public employees. The language of chapter 190, s. 33 clearly establishes the MCCA as an "independent state authority" and as such, it is within the aforementioned definition of state agency.

B. The "grandfather clause" in St. 1982, c. 190, s. 38D, as a bar to enforcement of G.L c. 268A, s. 4(a)

The MCCA's enabling legislation provides that all employees at the Hynes Auditorium would become employees of the MCCA "without impairment of their civil service status, seniority, retirement and other rights. . .providing, however, that nothing in this section shall be construed to confer upon any employee any rights not held prior to the transfer." St. 1980. c. 190, s. 38D. Mr. Newcomb maintains that since he was receiving two salaries prior to the transfer of the Hynes Auditorium to the MCCA, s. 38D permits him to continue the dual compensation arrangement. 

In its Advisory Opinion addressed to Mr. Newcomb, however. the Commission held that Mr. Newcomb's dual compensation was in violation of s. 20 prior to the MCCA takeover in 1983, and that the transfer of the Hynes Auditorium to the MCCA could not create a job right which he did not previously have. Since no right to that dual compensation arrangement existed prior to the creation of the MCCA, in other words, and the enabling statute specifically precludes conferring "any rights not held prior to the transfer," St. 1982, c. 190. s. 38D does not bar the enforcement of s. 4 against Mr. Newcomb.  

Mr. Newcomb further claims as a defense under s. 38D of chapter 190 that he has received prior approval from the City of Boston corporation counsel before accepting the director of security position at the MCCA. and therefore any violation of s. 4 was not a knowing violation. The evidence shows, however, that the corporation counsel approved that arrangement strictly from the viewpoint of compensation, i.e., that the total amount of compensation was not excessive. and his memorandum fails to consider the dual compensation with regard to G.L. c. 268A. Furthermore, Mr. Newcomb's status has changed since the corporation counsel's opinion was issued because he is now considered a state employee as director of security, and as a state employee, he cannot use a corporation counsel's opinion, regarding municipal employment as a defense to his receipt of compensation from someone other than the state.[5]

C. The Section 4 Violation

Mr. Newcomb was a state employee[4] as director of security at the MCCA and received $8,000.00 in yearly compensation from the MCCA. Mr. Newcomb also received $25,000.00 annual salary from the BPD, and the factual issue in this matter is whether the BPD salary constituted compensation from someone other than the commonwealth in relation to particular matters in which the state was a party or had a direct and substantial interest. 

Prior to January of 1982, Mr. Newcomb was a Boston police officer assigned to the Hynes Auditorium as director of security. He received $8.000.00 in annual compensation from the Auditorium Commission in addition to his regular BPD salary. Following the takeover of the Hynes Auditorium by the MCCA. Mr. Newcomb 

Page 248 

became a state employee as director of security. There is no evidence that his assignment by the BPD was changed. Rather the evidence in the record demonstrates that Mr. Newcomb's compensation from the BPD was for his performance of duties as director of security at the Hynes Auditorium. When Mr. Newcomb was suspended on February 21, 1984 from the MCCA payroll, he continued to report to the Hynes Auditorium from 7 to 3 as director of security. Mr. Newcomb's responsibilities remained the same after his suspension, except that he no longer agreed to work nights and weekends. Therefore, the logical and uncontested inference to be drawn is that Mr. Newcomb's 7 to 3 workday at the Hynes Auditorium constituted his assignment by the BPD. 

The Commission has held that the supplementation of a state employee's salary by a non-state party violated s. 4(a). In the Commission Compliance Letter, Department of Mental Health 1981 State Ethics Commission 50, the Commission addressed an issue of employees who were receiving additional compensation from non-state parties for services which were a part of their state duties. The Commission stated that since the duties of the individuals involved particular matters in which the state was a party or had a direct and substantial interest, such salary supplementation violated s. 4(a). 

The petitioner presented through exhibits and testimony facts to substantiate that Mr. Newcomb's state employee salary was supplemented by the BPD. Testimony indicated that in the course of Mr. Newcomb's duties, he made decisions and determinations as to the nature of security at the Hynes Auditorium. On two occasions he performed internal investigations of crimes committed in the Auditorium. He acted as the Hynes Auditorium liaison with the BPD in arranging BPD details hired for MCCA special events. Therefore, as a state employee, Mr. Newcomb received compensation from the BPD in relation to these particular matters that the MCCA, a state agency, had a direct and substantial interest.

IV. Conclusion and Order

Mr. Newcomb was directed to request an advisory opinion by the deputy director of the MCCA in the spring of 1983. The Commission issued its opinion on July 19, 1983 indicating that his continued assignment by the BPD to the MCCA while he was director of security at the MCCA was in violation of G.L. c. 268A, s. 4(a). Mr. Newcomb had notice of the advisory opinion in November, 1983. Mr. Newcomb ignored the advisory opinion and continued to receive his BPD salary in relation to services performed for the state. The argument that Mr. Newcomb sought legal advice does not mitigate his lack of compliance with the Commission's advisory opinion. Based upon the foregoing, the Commission concludes that Thomas Newcomb violated G.L. c. 268A, s. 4(a) by receiving compensation as a state employee from the Boston Police Department in relation to particular matters in which the state has a direct and substantial interest.  

Pursuant to its authority under G.L. c. 2688. s. 4(d) the Commission orders Thomas Newcomb to:

1. Cease and desist from violating s. 4(a) by discontinuing his receipt of compensation from the Boston Police Department in relation to services he performs for the state: and 

2. pay one thousand dollars ($1,000.00) to the Commission as a civil penalty for violating G.L. c. 268A, s. 4(a) within thirty (30) days of receipt of this Decision and Order.

[1] G.L. c. 268A. s. 4(a) provides that "no state employee shall otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receive or request compensation from anyone other than the commonwealth or a state agency, in relation to any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest." 

[2] This citation refers to a prior Commission conflict of interest opinion including the year it was issued and its identifying number. Copies of these and all other advisory opinions are available (with identifying information deleted for public inspection at the Commission offices. 

[3] There is nothing in the record to indicate that Mr. Newcomb knew about the corporation counsels memorandum, which was actually issued to the chairman of the Auditorium Commission. before this Commission adjudication commenced. 

[4] Newcomb claims that he was a special state employee at the MCCA. He did not present any evidence in the record to prose this claim. Assuming he did hold the status of special state employee, s. 4(a)(par. 7) could preclude him from receiving compensation from the BPD because he would be receiving compensation from a non-state party on a particular matter pending in his state agency.