Letter Ruling  Public Education Letter 87-1: Frederick B. Cronin, Jr.

Date:	08/27/1986
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

Frederick B. Cronin, Jr.

c/o James Carrigan, Esq.
15 Johnson Street
Lynn, MA  01902

Dear Mr. Cronin:

As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that as a tax collector for the city of Lynn, you appointed your brother Ralph as a deputy tax collector. The results of our investigation (discussed below) indicate that the conflict of interest law was violated in this case. In view of certain mitigating circumstances and action you have agreed to take (also discussed below), the Commission has determined that adjudicatory proceedings are not warranted. Rather, the Commission has concluded that the public interest would better be served by disclosing the facts revealed by our investigation and explaining the application of the law to such facts, trusting that this advice will ensure your future understanding of, and compliance with, the conflict law, By agreeing to this public letter as a final resolution of this matter, the Commission and you are agreeing that there will be no formal action against you and that you have chosen not to exercise your right to a hearing before the Commission.

A. The Facts

1. You have been the Lynn tax collector since the city council appointed you in 1978. As such, you are a "municipal employee" as defined in G.L. c. 268A, s.1(g). 

2. As tax collector, you may appoint deputies pursuant to G.L. c. 60, s. 92. Your deputy appointments must be approved by the Department of Revenue before they become effective. Your office includes an assistant tax collector and three deputies.  

3. Deputy tax collectors pursue collection of local taxes after a taxpayer has failed to respond to the collector's demand letter, which is sent once the tax liability has been delinquent for 30 days. The deputy sends the delinquent taxpayer a notice that a warrant has been issued and may go to the taxpayer's home (or place of business) with the warrant to collect the delinquent taxes. 

A deputy tax collector does not receive a salary but receives statutory fees that vary depending on what he has to do to collect the delinquency. For example, a deputy is entitled to $7 for sending out the notice of warrant and $12 for serving it on the taxpayer in person. These fees are included in the money collected from the delinquent taxpayer (as are interest and demand fees owed the city.) 

4. According to you and your assistant, the deputies turn over the money they have collected to the chief deputy, who turns it over to your assistant. (The chief deputy does not inform your assistant how much each deputy has collected or earned in fees; he gives her the money as a total of what the three deputies have collected.) Taxpayers often come in to the office to pay the taxes, interest and fees that they owe as well. Your assistant turns over everything but the deputies' fees - i.e., tax receipts, interest and fees to which the city is entitled - to the city treasurer. She keeps the deputies' fees and, at the end of each week, gives the chief deputy all the fees the deputies have earned during the week. The chief deputy must sign that the amount your assistant is giving him is the correct amount owed the deputies. He then makes the distribution among the deputies. At the end of each month, your assistant reports to the city treasurer on all the money (including deputy tax collector fees) the tax collector's office has received. 

5. According to you and your assistant, you do not have to sign off on anything to approve payment to the deputies (nor do you sign off on the monthly report to the treasurer).^[1] 

6. When you were appointed in 1978, you inherited the previous tax collector's five deputies. Three of these have left (one died, the other two resigned). You have appointed three deputies, two of whom have since left (one voluntarily, the other when you declined to renew his appointment after the first year). 

7. In early 1984, the chief deputy whom you had inherited decided to resign. You testified that you used your usual word-of- mouth method to conduct your hiring search. City councilors submitted names of possible candidates, and your brother Ralph indicated his interest in the position. You chose your brother because, you stated, you could count on his honesty, sobriety and levelheadedness. You testified that you told the mayor, city solicitor and all the city councilors that you had decided to appoint your brother and they thought it was a good idea; you stated that you did not explicitly seek their permission to hire your brother because they have no role in the process. You completed the Department of Revenue forms on the appointment and obtained that department's approval of the appointment as required by G.L. c. 60, s. 92. 

8. When we interviewed people to whom, you testified, you had "disclosed" your intention to appoint your brother, a number specifically recalled that you had told them of this intention before you made the appointment. (Others had no specific recollection of such a "disclosure" but said it could well have occurred; still others recalled that they only learned of the appointment after you had made it.) 

9. Ralph Cronin officially became chief deputy tax collector in March 1984. You have reappointed him twice. It is Ralph's full-time job. He has netted approximately $35,000 from fees annually (after his mailing expenses are deducted) both years he has served.

B. The Conflict Law

Section 19 prohibits a municipal employee from participating as such in a matter in which a member of his immediate family has a financial interest. This section thus would prohibit you, as Lynn Tax Collector, from appointing your brother to a position like deputy tax collector, in which he has a financial interest because of the fees he will have the opportunity to earn. The facts as set forth in this letter, if proven, would establish violations of s.19 because they would indicate that you have appointed and reappointed your brother as chief deputy tax collector for the city of Lynn. 

Section 19 does, however, include a procedure involving disclosure to an official's appointing authority by which the official may avoid violating s.19. That procedure requires that before the official takes the action with respect to an immediate family member, the official make a full disclosure to his appointing authority of his proposed action and the immediate family member's financial interest in it; the appointing authority may then, in writing, authorize the official to take the action because the financial interest "is not so substantial as to be deemed likely to affect the integrity of the services which the municipality may expect" from the official. 

You have asserted that you, in effect, conformed with the spirit (although not the letter) of this disclosure procedure. Our inquiry indicated that you did inform, albeit informally, many (perhaps a majority) of the city councilors, your appointing authority, and the mayor before you appointed your brother Ralph initially. Because of this, the Commission has decided that this case does not warrant the initiation of formal adjudicatory proceedings. Rather, the Commission has determined that a public enforcement letter is appropriate and that your brother should resign as chief deputy tax collector. Further, you have agreed that you will follow the proper s. 19(b) disclosure procedure (discussed above) should you decide you want to appoint him again. Before you appoint him, then, you must formally inform the Lynn City Council that you propose appointing your brother as chief deputy and you must disclose to the council that he will earn fees in the position and thus has a financial interest in it. Only if a majority of the city council determines and notifies you, in writing, that your brother's financial interest in his position is not so substantial as to be deemed likely to affect the integrity of the services which the city may expect from you. may you make the appointment.^[2] Should the council make such a determination, you will need to follow this procedure each year when you resubmit your brother's bond to the Department of Revenue and thereby, in effect, reappoint him.^[3] 

You and the city council should also be aware that s.19 applies not only to appointments but would apply to any matter in which you, as tax collector, participate and in which your brother has a financial interest. For example, absent an exemption from the city council, you could violate s.19 if you were involved in assigning collection cases to your brother or in approving payment of fees to your deputies.

C. Disposition

Based on its review of this matter, the Commission has determined that the sending of this letter should be sufficient to ensure your understanding of, and your future compliance with, the conflict law. This matter will be closed once we have received evidence of your brother's resignation. Thank you very much for your cooperation. If you have any questions, please contact me at [phone].

 ^[1] Whether this procedure comports with the reporting responsibilities of the tax collector set out in G.L c. 60, s.s. 2, 16 is beyond the scope of this letter. 

^[2] The Commission is aware that, pursuant to s.5 of the Overlay Deficit Act of 1985. it is the municipality's Chief Financial Officer who now appoints the tax collector. Since your appointing authority was the city council, however, and since you became tenured prior to enactment of the 1985 law, it is the city council which should make the determination pursuant to s.19(b). 

^[3] In addition. s. 23, the standards of conduct section of c. 268A, prohibits a public official from acting in a manner which would cause a reasonable person having knowledge of the relevant circumstances, to conclude that he is likely to act or fail to act as a result of someone's kinship. See, s. 23(b)(3). You may run afoul of this prohibition where your brother is chief deputy by virtue of your general responsibilities to oversee and supervise the conduct of the people in your office. The exemption procedure authorized under s. 19, however, should also serve to resolve any questions under s. 23(b)(3). 

If you do reappoint your brother after receiving city council approval, you should bear in mind that s. 23 also prohibits a public official from using or attempting to use his official position to secure for himself or someone else unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals. You must therefore take care not to treat your brother any better than any other of your deputy tax collectors.