| Date: | 05/22/2000 |
|---|---|
| Organization: | State Ethics Commission |
A municipal wiring inspector is allowed by a local option statute to perform electrical work in the municipality, but is prohibited from receiving compensation for performing electrical work unless he can comply with section 20.
You are the wiring inspector for the Town ("Town"). You also
have your own electrical contracting business. You want to perform
electrical work, including trouble shooting, repairs, and
installation, for Town agencies for compensation.
The Board of Selectmen of the Town voted to adopt St. 1981, c.
809, codified at G.L. c. 166, s.32A, entitled "Inspector of wires
working as electrician; inspection by assistant inspector":
In a city, town or district which accepts this section, a
licensed electrician who is appointed inspector of wires may
practice for hire or engage in the business for which licensed
under the applicable provisions of chapter one hundred and
forty-one while serving as such inspector; provided, however,
that within the area over which he has jurisdiction as wiring
inspector he shall not exercise any of his powers and duties
as such inspector, including those of enforcement officer of
the state electrical code, over wiring or electrical work done
by himself, his employer, employee or one employed with him.
Any such city, town or district may in the manner provided in
the preceding section appoint an assistant inspector of wires
who shall exercise the duties of inspector of wires, including
those of enforcement officer of the state electrical code,
over work so done. Said assistant inspector may act in absence
or disability of the local inspector and for his services
shall receive like compensation as the city, town or district
shall determine.
General Laws c. 268A, s.20, applicable to all municipal
employees, including a wiring inspector such as yourself, prohibits
such employees from having a financial interest in a contract with
the same municipality. General Laws c. 166, s.32A, a local option
statute, permits a wiring inspector, in a town that adopts this
statute, to practice for hire or engage in electrical work within
his own municipality. Does the Town's adoption of the provisions of
the later-enacted G.L. c. 166, s.32A effectively repeal the s.20
prohibition to allow you to be compensated for electrical work that
you perform for Town agencies?
No, G.L. c. 166, s.32A does not expressly or impliedly repeal
G.L. c. 268A, s.20 as applied to wiring inspectors. Therefore, you
are prohibited from being compensated for electrical work you
perform for Town agencies, unless you satisfy one of the s.20
exemptions.
We begin with the plain language of the two relevant statutes,
G.L. c. 268A, s.20,[1] and c. 166, s.32A. G.L. c. 268A, s.1(n). and
G.L. c. 166, s.32A. Plymouth County Retirement Association v.
Commissioner of Public Employee Retirement,410 Mass. 307, 309 (199
1). G.L. c. 268A, s.20, which was enacted in 1962, states, in
relevant part, that "[a] municipal employee who has a financial
interest, directly or indirectly, in a contract made by a municipal
agency of the same city or town, in which the city or town is an
interested party of which financial interest he has knowledge or
has reason to know, shall be punished," unless he qualifies for one
of the enumerated exemptions to the broad prohibition. See G.L. c.
268A, s.s.20(a) - (h), et seq. Under a plain reading of the
statutory language, a municipal employee, such as a wiring
inspector, may not contract with a town agency to provide
electrical services unless he qualifies for one of the s.20
exemptions.
G.L. c. 166, s.32A, which was enacted in 1981, states that, in
a town which accepts the statute, a wiring inspector "may practice
for hire or engage in the business for which licensed . . . while
serving as such inspector," so long as certain conditions are met.
Because this statute does not restrict or qualify the quoted
language, a potential conflict exists between this statute and s.20
as applied to a wiring inspector performing electrical work for
compensation for a town agency in a town that adopts G.L. c. 166,
s.32A. General Laws c. 268A, s.20 prohibits such work absent an
exemption, whereas G.L. c. 166, s.32A does not appear to forbid
such work.
In resolving this potential conflict, we are guided by a
longstanding principle of statutory interpretation that "[a]
statute is not to be deemed to repeal or supersede a prior statute
in whole or in part in the absence of express words to that effect
or of clear implication." Colt v. Fradkin, 361 Mass. 447, 449-45 0
(1972), quoting Cohen v. Price, 273 Mass. 303, 309 (1930);
LaBranche v. AJ Lane & Co., 404 Mass. 725, 728-729 (1989) ("Implied
repeal of a statute is not favored"). With this principle in mind,
we examine whether G.L. c. 166, s.32A contains express words or a
clear implication that it does supersede G.L. c. 268A, s.20.
First, G.L. c. 166, s.32A contains no express language
curtailing or superseding the application of G.L. c. 268A, although
two of the five versions of the bill that eventually became the
statute did provide such language. See 1981 Senate Doc. No. 903
("Notwithstanding any provision of law to the contrary"); 1981
Senate Doc. No. 941 ("Notwithstanding any general or special law to
the contrary"). The Legislature is presumed to have been aware of
G.L. c. 268A, s.20 when enacting G.L. c. 166, s.32A, as s.20 was
enacted prior to G.L. c. 166, s.32A. Had the Legislature intended
G.L. c. 166, s.32A to super-
Page 750
sede s.20, it could have expressly said so. Registrar of Motor
Vehicles v. Board of Appeal on Motor Vehicle Liability Policies
and Bonds, 382 Mass. 580, 586 (1981). See, e.g., G.L. c. 111,
s.26G (a septic system installer who is appointed or elected to
the board of health may perform septic system installation work
in his own municipality "notwithstanding the provisions of [G.L.
c. 268A, s.17]"). The absence of such language in G.L. c. 166,
s.32A is some indication of a Legislative intent not to repeal
G.L. e. 268A, s.20 as to wiring inspectors. See Police Department
of Boston v. Fedorchuk, 48 Mass. App. Ct. 543, 546-547 (2000).
In the absence of express words, we will find implied repeal
only if a clear implication exists that G.L. c. 166, s.32A
supersedes G.L. c. 268A, s.20. Rennert v. Board of Trustees of
State Colleges, 363 Mass. 740, 743 (1973). In determining whether
the Legislature clearly implied that one statute should supersede
another, the court considers the legislative intent, history and
purpose of statutes with "unsettled or overlapping borders."
Commonwealth v. Houston, 43 0 Mass. 616, 620-625 (2000) (construing
potential conflict between application of rape shield statute and
statute governing admissibility of prior convictions); City of
Everett v. City of Revere, 344 Mass. 585, 588-589 (1962).
To make this determination, we begin with an examination of
the purpose of G.L. c. 268A, s.20. Section 20 has a broad
prophylactic purpose. It seeks "to prevent municipal employees from
using their positions to obtain contractual benefits or additional
appointments from the municipality and to avoid any public
perception that municipal employees have an 'inside track' on such
opportunities." See EC-COI-99-2; 86-10; 89-32; 95-2 (where the
Commission stated that s.7, the state counterpart to s.20, "seeks
to avoid the perception and the actuality of a state employee's
enjoying an 'inside track' on state contracts or employment"); W.
G. Buss, The Massachusetts Conflict of Interest Statute: An
Analysis, 45 B.U. Law R. 299, 368, 374 (1965); Quinn v. State
Ethics Commission, 401 Mass. 210, 214 (1987).
Turning to G.L. c. 166, s.32A, it appears that the statute was
enacted in response to the promulgation, in 1980, of a regulation
which imposed a flat prohibition on a wiring inspector's practicing
electrical work in the same area over which he had jurisdiction.[2]
Apparently the regulation created difficulty for small communities
seeking to recruit wiring inspectors.[3]
General Laws c. 166, s.32A contains no words or provisions
relating to a wiring inspector's holding a second position with the
same town, performing electrical work for, or providing electrical
equipment or apparatus to, town agencies. Neither does the statute
address the potential for a wiring inspector to have an inside
track in obtaining contracts with town agencies. Thus, the statute
does not address the core purpose of s.20 - the prevention
of actual and apparent insider track influence.
Resolving the potential conflict between G.L. c. 166, s.32A
and G.L. c. 268A, s.20 by applying s.32A in place of s.20 would
"impliedly repeal [ ] a portion of the [Commission's] power" to
enforce s.20 as to that group of municipal employees who serve as
wiring inspectors in towns that adopt the provisions of G.L. c.
166, s.32A. Registrar of Motor Vehicles, 382 Mass. at 585. Because
G.L. c. 166, s.32A does not contain express words or a clear
implication to repeal G.L. c. 268A, s.20 as applied to wiring
inspectors, we do not conclude that G.L. c. 166, s.32A supersedes
or limits the application of G.L. c. 268A, s.20. Commonwealth v.
Hayes,372 Mass. 505, 511 (1977) ("[I]n the absence of express
statutory directive, it seems prudent to avoid a doctrine of
implied repeal which might ultimately deprive [the statute] of
vitality").
Moreover, when the Legislature has intended to create a narrow
exemption to the prohibitions in G.L. c. 268A, s.20, it has done so
within s.20. See G.L. c. 268A, s.s.20(a)-(h)et seq. Although the
Legislature has revisited s.20 numerous times, it has not chosen to
provide an exemption for wiring inspectors performing electrical
work for town agencies.[4]
The prudent and plausible course is for the Commission to
interpret the two statutes harmoniously so they may be enforced
simultaneously.[5] Houston, 430 Mass. at 631 (Cowin, J.,
concurring) ("the more plausible course is to construe the
legislative will as intending that the policies embraced in both
statutes be enforced"); City of Everett v. City of Revere, 344
Mass. 585, 589 (1962) (same); Green v. Wyman-Gordon Company, 422
Mass. 551, 554 (1996) (same); IA C.Sands, Sutherland Statutory
Construction s.23.10 (5th ed. 1993) ("Where the repealing effect of
a statute is doubtful, the statute is strictly construed to
effectuate its consistent operation with previous legislation")
(emphasis in original). Accordingly, the "comprehensive nature of
[G.L. c. 268A] must prevail over any limitations which might be
read into [G.L. c. 166, s.32A]." Boston Housing Authority v. Labor
Relations Commission, 398 Mass. 715, 719 (1986).
Here, although the two statutes overlap, they can coexist.
Police Department of Boston, 48 Mass. App. Ct. at 547; McGrath v.
Mishara, 386 Mass. 74,83 (1982), citing Dodd v. Commercial Union
Insurance Co., 373 Mass . 72, 75-78 (1977) ("[t]he mere fact that
these statutes contain some overlapping prohibitions and remedies
does not establish a legislative intent to preclude their
concurrent application"). Importantly, our interpretation will not
render G.L. c. 166, s.32A a "near nullity," since its provisions
will remain fully in effect[6] Green, 422 Mass. at 557; City of
Everett, 344 Mass. at 589.
We conclude, in a manner which reconciles and gives reasonable
effect to both statutes, that in a city or town which adopts the
provisions of G.L. c. 166, s.32A, a
Page 751
wiring inspector may perform and be compensated for such work,
provided that he complies with G.L. c. 268A, s. 20. See St. Germaine
v. Pendergast, 411 Mass. 615, 626 (1992); G.J.T, Inc. v. Boston
Licensing Board, 397 Mass. 285, 293 (1986). Based on this conclusion,
you must qualify for one of the s.20 exemptions in order to perform
electrical work for a Town agency.
Because you are a special municipal employee, two exemptions
are available to you. If you do not, as wiring inspector,
participate[7] in or have official responsibility[8] for any of the
activities of the Town agency for which you perform electrical
work, you simply have to file a disclosure with the Town Clerk.[9]
If you do participate in or have official responsibility for any of
the activities of the Town agency for which you perform electrical
work, you must, in addition, receive the Board of Selectmen's
approval.[10]
------------------
[1] Section 20 of G.L. c. 268A applies to you as a municipal
employee. G.L. c. 268A, The Board of Selectmen have classified the
wiring inspector's position as that of special municipal employee.
[2] The Board of State Examiners of Electricians regulation
provides: "Restriction for Licensed Electricians: Any person
licensed by the Commonwealth of Massachusetts, Board of State
Examiners of Electricians in accordance with the provisions of
M.G.L. c. 141 as a master electrician, journeyman electrician, or
both, who functions as an Inspector of Wires, Wiring Inspector,
Assistant Wiring Inspector or Deputy, either full-time, part-time
or temporary, appointed pursuant to the provisions of M.G.L. c.
166, s.32, as amended, shall not practice for hire, or engage in
the business during the time that person holds such an appointment
within the area over which such person is the authority enforcing
the Massachusetts Electrical Code [ 1." 237 CMR, s.4.08 (effective
January 30, 1980). Five related bills were filed with the General
Court to repeal or modify the effect of the regulation. See 1981
Senate Doc. Nos. 903, 93 8, 941, 942 and House Doc. No. 1840. The
recommended draft of the Committee on Local Affairs, 1981 House
Doc. No. 6720, was adopted by both legislative branches and enacted
in unchanged form as a local acceptance bill.
[3] Letters from Selectmen and State Senators to the Committee
on Local Affairs questioned the regulation's breadth, saying: "It
has become increasingly difficult for small communities to find
appropriate and qualified individuals for ... [t]he position of
Wire Inspector. ... Certain regulations governing Wire Inspectors
have substantially reduced the numbers of candidates for that
office in every small town"; "This new regulation ... presents an
unreasonable hardship on small communities throughout the
Commonwealth. Electricians who formerly accepted the
responsibilities of this position did so in many instances on a
part-time basis, reserving the right to make a decent living
engaging in private practice. Now unable to practice in the towns
in which they act as Inspector, it is no longer feasible or
profitable in many cases for electricians to assist communities in
this role"; "Due to the nature of business in small towns, it is
difficult for wiring and plumbing inspectors not to engage in
business within the community as the majority of their customers
are located within the immediate area."
[4] Contrast G.L. c. 268A, s.20(f), which provides an
exemption "to a municipal employee if the contract is for personal
services in a part-time, call or volunteer capacity with the
police, fire, rescue or ambulance department of a fire district
town or any city with a population of less than thirty-five
thousand inhabitants; provided, however, that the head of the
contracting agency makes and files with the clerk of the city,
district or town a written certification that no employee of said
agency is available to perform such services as part of his regular
duties, and the city council, board of selectmen, board of aldermen
or district prudential committee approve the exemption of his
interest from this section . . . ."
[5] If the Legislative intent is to allow wiring inspectors in
towns that adopt G.L. c. 166, s.32A to provide services not only to
private clients but also to town agencies, it can amend the statute
to expressly say so. See, e.g., G.L. c. 111, s.23G.
[6] In comparison, the relationship between G.L. c. 166, s.32A
and G.L. c. 268A, s. 17, which generally prohibits a municipal
employee, from receiving compensation from, or acting as agent or
attorney for, anyone other than the city or town or municipal
agency in relation to any particular matter in which the same city
or town is a party or has a direct and substantial interest,
provides an example of a later enacted statute's clear implication
that it supersedes another statute. In EC-COI-87-42, the Commission
considered whether G.L. c. 166, s.32A provided, in essence, a
statutory exemption to s.17, thus allowing wiring inspectors to
perform electrical work in the same town for non-municipal parties.
Although G.L. c. 166, s.32A is silent as to G.L. c. 268A, the
Commission concluded that the Legislature intended to supersede s.
17 because the statute was enacted for the very purpose of allowing
wiring inspectors to perform electrical work in their own towns.
Id. Had the Commission concluded otherwise, G.L. c. 166, s.32A
would have been rendered a nullity. Moreover, G.L. c. 166, s.32A
addressed the very purpose of s. 17, divided loyalty, by requiring
the town to appoint an assistant inspector to inspect the wiring
inspector's work.
[7] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s. 10).
[8] "Official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action.
[9] Section 20(c) applies "to a special municipal employee who
does not participate in or have official responsibility for any of
the activities of the contracting agency and who files with the
clerk of the, city or town a statement making full disclosure of
his interest and the interests of his immediate family in the
contract."
[10] Section 20(d) applies "to a special municipal employee
who files with the clerk of the city, town or district a statement
making full disclosure of his interest and the interests of his
immediate family in the contract, if the city council or board of
aldermen, if there is no city council, board of selectmen or the
district prudential committee, approve the exemption of his
interest from this section."
