Letter Ruling  Public Enforcement Letter 87-3: Patrick D. Farretta

Date:	02/10/1987
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

Patrick D. Farretta

c/o Henry E. Quarles, Jr., Esq.
395 Washington Street, Suite #4
Dedham, MA 02026

Dear Mr. Farretta:

Page 281

As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that after inspecting and participating as a Boston housing inspector in the condemnation of property owned by an elderly woman, you took various actions, outside of your official capacity, in connection with her relocation. The preliminary inquiry has also concerned an allegation that you requested and received $100 from this individual, again outside of your official capacity, in order to board up her property.

The results of our investigation (discussed below) indicate that the conflict of interest law was violated in this case. Nevertheless, in view of certain mitigating factors, also discussed below, the Commission has determined that adjudicatory proceedings are not warranted. Rather, the Commission has concluded that the public interest would be better served by disclosing the facts revealed by our investigation and explaining the applicable provisions of law, 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.

I. The Facts

1. You have been a housing inspector in the Housing Division of the City of Boston's Inspectional Services Department for the past fifteen years. As such, you are a "municipal employee" as defined in G.L. c. 268A, s.1(g).

2. In 1984 and 1985, you worked as a real estate salesman for The Real Estate Co., Inc., 1350 Dorchester Avenue, Dorchester, earning $9,960.07 from the company in 1984 and $16,985.00 in 1985. 

3. During 1984 and 1985 the owners of The Real Estate Co., Inc. were Stuart T. Schrier, Robert Raimondi and Edith Yanonis. Edith Yanonis's husband, Rick Yanonis, was office manager. 

4. On September 28, 1984, you inspected the property at 15 Lawrence Street in the South End of Boston, a townhouse owned by a woman over 80 years old living on Social Security benefits, and cited it for numerous violations of the State Sanitary Code. 

5. On October 10,1984, you served a notice of possible condemnation of 15 Lawrence Street on this woman; at a hearing on that same day your supervisor, Frederick Sexton, decided that the building should be condemned and ordered vacated and secured. 

6. On Saturday, October 20,1984, you went to visit the elderly woman at 15 Lawrence Street. After finding that she had been beaten up by intruders, you moved her to the Susse Chalet Motor Lodge on Morrissey Boulevard in Dorchester, where, you have stated, you paid out of your own money for her to stay over the weekend. An employee of the Boston City Commission on Elderly Affairs, Kathy McNiven, then arranged for Charitable Donations of Boston to pay for her stay at the motel from October 22 to October 30,1984.

7. During this time, you contacted Rick Yanonis of The Real Estate Co., Inc. to see if he could appraise 15 Lawrence Street and possibly buy it. Kathy McNiven had asked if you knew anyone who could do an appraisal of the property, which was necessary to get the elderly woman into public housing. You took Mr. Yanonis to meet the woman at the motel and then to see the property. He gave you a written opinion of value of $50,000, which you gave to Kathy McNiven, who then submitted it to the Boston Housing Authority in an attempt to place the woman with it.

8. You arranged with Rick Yanonis for him to pay for the woman's further stay at the motel. Mr. Yanonis agreed to do so in the hope that the woman would consider selling her property to him. No sale took place, however, because she would not sell until she had a place to go. 

9. During the woman's stay at the motel, you also took Stuart Schrier, president of The Real Estate Co., Inc. to see her. He asked her whether she would be willing to sell her property; she replied that she was not ready to sell.

10. On November 7, 1984, you placarded the premises at 15 Lawrence Street as having been condemned and delivered a copy of a Vacate Order to the elderly woman. 

11. On November 30, 1984, in accordance with your arrangement, Mr. Yanonis paid $904.16 by check to the Susse Chalet for the woman, According to Mr. Schrier, he, Mr. Yanonis, and Robert Raimondi (also an owner of The Real Estate Co.) each paid equal portions of this amount.

12. In early December, 1984, you contacted Quincy Community Action and helped to arrange a placement for the woman in Quincy Housing Authority housing. 

13. In November or December of 1984, you asked the woman for $100 to board up 15 Lawrence Street. You later returned this money to her.

II. The Conflict Law

As a Boston housing inspector, you are a municipal employee for the purposes of the conflict of interest law, c G.L. c. 268A. Section 17(c) prohibits a municipal 

Page 282 

employee, otherwise than in the proper discharge of his official duties, from acting as agent for anyone other than the city or municipal agency in connection with any particular matter in which the city is a party or has a direct and substantial interest.

The facts set forth in this letter, if proven, would establish violations of s.17. The decision by the Inspectional Services Department to condemn 15 Lawrence Street was a particular matter in which the city was a party or had a direct and substantial interest. In taking the actions which you took to relocate the elderly woman after her property was condemned,[1] you were acting as her agent[2] in connection with the condemnation. Pursuant to G.L. c. 79A, s.13, any public agency displacing someone by issuing an order to vacate property which has been condemned must provide that person with relocation assistance and a relocation payment for moving expenses. In fact, when it condemns a building, the Boston Inspectional Services Department fills out a "relocation information form," refers the occupants' names to the Boston Housing Authority, and furnishes the occupants with a housing information list to help them find housing. Thus the relocation of the occupant of a condemned building is a process which is "in connection with" the condemnation, and actions taken on behalf of such a person to relocate him or her violate s.17(c) if they are not in the course of one's official duties. That you were not acting in the course of your official duties appears from the fact that you paid for part of the elderly woman's motel bill out of your own pocket and the fact that you turned to your private contacts at The Real Estate Co. to appraise 15 Lawrence Street, to try to buy the property from the woman, and to pay for her continued stay at the motel. 

Likewise, you were not acting in the course of your official duties when you requested and received $100 from the woman to board up her property. Customarily, it is an owner's responsibility to board up a condemned building: if he or she does not, the Building Division of the Inspectional Services Department does so and puts a lien on the building. In requesting and receiving money from the woman to board up her property, you were again acting as her agent in connection with the particular matter of condemnation of the property, in which the city was a parry or had a direct and substantial interest. Thus, if these facts were proven, they would establish another violation of s.17(c). Also, if it were proven that you had intended at the time of your request to keep any part of the $100 in return for seeing to the boarding up, a violation of s.17(a) would be established: section 17(a) prohibits a municipal employee, otherwise than as provided by law for the proper discharge of official duties, from directly or indirectly receiving or requesting compensation from anyone other than the city or municipal agency in relation to any particular matter in which the city is a party or has a direct and substantial interest. 

The Commission has found no evidence that you received a financial benefit in relation to any of the events described in this letter. It also recognizes that, although it has had in this case no way of determining your motivation, you may have been motivated by the admirable desire to help an elderly woman. You may rather have been motivated, however, by your expectation that if she was happily relocated she would sell her property through your real estate company, a sale which would probably have resulted in a commission to you.

Because of the above mitigating factors, the Commission has decided that this case does not warrant the initiation of formal adjudicatory proceedings. It does, however, want to make clear to you and other municipal employees similarly situated that the public interest requires that public officials give their undivided efforts to serving their public functions. Section 17 reflects the maxim that a person cannot serve two masters. Whenever a city employee acts on behalf of private interests in matters in which the city also has an interest, there is a potential for divided loyalties, the use of insider information, and favoritism all at the expense of the City. EC-COI-82-127. This means that even where the interests of a city or municipal agency and of a private party in a particular matter are not adverse, a public official must be careful not to act as an agent for the private party. See Town of Edgartown v. State Ethics Commission, 391 Mass. 83,86-87(1984). 

Finally, the Commission wishes to advise you that s.23 of the conflict of interest law may place additional restrictions on your future conduct.[3] 

Section 23(b)(2) prohibits a municipal employee from using his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals. Introducing an owner of a condemned or about-to-be-condemned building to your friends or employers in the real estate business could constitute a violation of this section. 

Section 23(b)(3) prohibits a municipal employee from acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position, or undue influence of any parry or person. Any association between you and a private real estate business might violate s.23(b)(3) in that for example it might cause the conclusion that your associates or employers in the real estate business could improperly influence you or unduly enjoy your favor in the performance of your official duties to inspect, serve notices, and placard buildings. The final sentence of s.23(b)(3) provides a way for you to avoid a violation of the section by making a written disclosure to 

Page 283 

your appointing authority.[4] Nevertheless, even if you were to make such a disclosure, it may be that s.23(b)(1) precludes your association with any real estate business in Boston so long as you continue to be employed as a housing inspector for the City of Boston. Section 23(b)(1) prohibits your acceptance of other employment involving compensation of substantial value, the responsibilities of which are inherently incompatible with the responsibilities of your public office. 

In sum, because of the restrictions of all three of these sections, you should request an opinion from the Commission's Legal Division before acting as a real estate salesman in Boston or accepting employment with a real estate concern which does business in Boston. You should also request such an opinion before taking any action to bring together anyone with whom you have official business as a housing inspector and any of your friends or former employers and associates in the real estate business.

III. 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 is now closed. 

If you have any questions, please contact me at 727-0060.

[1] The actions which you took to relocate the woman include your efforts to obtain temporary accommodation for her, your efforts to find a buyer for her house, and your efforts to arrange a permanent place for her in public housing. Specifically, they include placing the woman in the Susse Chalet, arranging for Mr. Yanonis to appraise 15 Lawrence Street, arranging for him and perhaps others at The Real Estate Co., Inc. to contribute to the cost of the motel stay, arranging for Mr. Yanonis and Mr. Schrier to meet the woman with a view to their purchasing her property. and helping to arrange her placement in housing in Quincy. 

[2] An argument could also be made that you were acting as agent for Rick Yanonis, Stuart Schrier, or The Real Estate Co., Inc. in taking these actions to find the woman temporary and permanent accommodations. It is irrelevant which of these private parties you were acting as agent for, since s.17 bars acting as agent for anyone other than the city or municipal agency. 

[3] The Commission has no jurisdiction to enforce violations of s.23 occurring before April 8, 1986. See St. 1986, c. 12, s.6; Saccone v. State Ethics Commission, 395 Mass. 326(1985). 

[4] The final sentence of s.23(b)(3) is as follows: "It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion."