Opinion  EC-COI-85-41

Date:	05/28/1985
Organization:	State Ethics Commission

A court officer in a probate court may serve as a local constable subject to certain restrictions.

Facts

You are a court officer in a probate court. As such, you perform security work in maintaining order and in protecting judges, jurors and prisoners.

You are also a constable appointed by municipalities. As a constable, you are authorized to serve civil and criminal process in the municipalities which appoint you. G.L. c. 41, §§ 92 and 94. You state, through your attorney, that you serve process on your own time outside of your usual work hours, and that you do not use any of the state's facilities to perform that work. You further state that you currently do not serve process which emanates from your court or from state agencies. However, you would like to serve process for such entities, if permitted under the conflict law.

Question

What restrictions does G.L. c. 268A place on your activities as a court officer and a constable?

Answer

You will be subject to the following limitations.

Discussion

1. Section 4

As an employee of the probate court, you are a state employee as defined in § 1(q)^[1] of G.L. c. 268A, and are therefore subject to the provisions of that law. Section 4 prohibits a state employee from receiving compensation from, or acting as agent or attorney for, anyone other than the state in connection with a particular matter^[2] in which the state is a party or has a direct and substantial interest. For § 4 purposes, "anyone other than the state" includes another governmental body such as a municipality. However, § 4 permits a state employee to hold an elective or appointive office in a city, town or district and to be paid for doing so as long as he does not vote or act on any matter within the purview of the state agency by which he is employed or over which he has official responsibility.

You hold such an appointive office in your position as constable. You would therefore be permitted under § 4 to serve process, notwithstanding your status as a state employee, provided that such process did not originate in the probate and family court department (i.e. within the purview of your state agency). You would not violate § 4 by serving process in connection with cases before any of the other six departments of the trial court (e.g. the district court department, the juvenile court department, or the superior court department) in as much as they constitute separate state agencies for conflict of law purposes^[3] (i.e. such matters would not be within the purview of your state agency).

2. Section 7

Section 7 prohibits a state employee from having a financial interest, directly or indirectly, in a contract made by a state agency in which the commonwealth or a state agency is an interested party. This section would prevent you as a state employee from performing paid services as a constable for the commonwealth or any state agency. See EC-COI-82-59.^[4] As a full-time state employee in your court officer position, you could avoid the § 7 prohibition only by meeting all of the criteria of the § 7(b) exemption. That exemption provides that the § 7 restriction does not apply (b) to a state employee other than a member of the general court who is not employed by the contracting agency or an agency which regulates the activities of the contracting agency and who does not participate in or have official responsibility for any of the activities of the contracting agency, if the contract is made after public notice or where applicable, through competitive bidding, and if the state employee files with the state ethics commission a statement making full disclosure of his interest and the interests of his immediate family in the contract, and if in the case of a contract for personal services;

1. the services will be provided outside the normal working hours of the state employee,
2. the services are not required as part of the state employee's regular duties, the employee is compensated for not more than five hundred hours during a calendar year, and
3. the head of the contracting agency makes and files with the state ethics commission a written certification that no employee of that agency is available to perform those services as a part of their regular duties. For example, unless a state agency such as the Department of Public Welfare met the public notice requirement in seeking a constable, you would be prohibited from serving process for such an agency.

3. Section 23

You are also subject to the standards of conduct set forth in § 23 of the conflict law. In particular, § 23(¶2)(2) provides that a state employee may not use his official position to secure unwarranted privileges for himself or others. Performing constable and court officer duties simultaneously during court sessions would violate this section. See, In the Matter of Roger B. Whitcomb, Ethics Commission (June 23, 1983). Thus, you would not be able to serve civil arrest warrants (capiases) in cases where the constable must appear in your court with the person arrested pursuant to the capias to collect his fee. Similarly, you would violate § 23(¶2)(2) by using state supplies, state employees, state time or state equipment for your constable services. For example, you may not use courthouse copying facilities for your constable business, or use courthouse telephones to conduct such business. You are also prohibited from soliciting potential clients for your constable services by referring to your qualifications as a state employee.

 

End Of Decision

^[1] Section § 1(q) of G.L c. 268A defines a "state employee" as a person performing services for or holding an office, position. employment, or membership in a state agency. whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis, including members of the general court and executive council."

^[2] For purposes of G.L. c. 268A, § 1(h) defines "particular matter" as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances ad property."

^[3] See EC-COI-84-86 for a comprehensive discussion of the Commission's rationale in determining that each of the seven departments within the trial court is a separate state agency for c. 268A purposes.

^[4] This citation refers to a previous Commission conflict of interest opinion including the year it was issued and its identifying number. Copies of this and all other advisory opinions are available for public inspection at the Commission's office.