Opinion  EC-COI-85-76

Date:	10/08/1985
Organization:	State Ethics Commission

A clerk-magistrate for the district court department is a state employee for the purposes of G.L. c. 268A. He may purchase surplus property offered by a municipality because the commonwealth lacks a direct and substantial interest in the transaction. Should a matter come before him as clerk-magistrate during this period which involves the municipality's public facilities department, he must avoid creating the impression of undue favoritism. This can be achieved by either his refraining from participating in the case or by his disclosure of the facts to his appointing official and discussing safeguards which can dispel any improper impression.

Facts

You currently serve as the clerk/magistrate for the District Court Department and are interested in developing property owned by a City in which your court is located. Specifically, you have become aware that the property is considered surplus property by the City's Public Facilities Department and will be sold at a public auction to the highest bidder. To your knowledge, the property is unencumbered.

Questions

1. Does G.L. c. 268A permit you to submit a bid to purchase the property?

2. Assuming your bid is accepted, does G.L. c. 268A permit you to develop the property?

Answers

1. Yes.

2. Yes, subject to certain conditions.

Discussion

As the clerk/magistrate for District Court Department, you are a state employee for the purposes of G.L. c. 268A. The principal limitations on your activities outside of your clerk duties are contained in G.L. c. 268A, § 4. This section prohibits you from either receiving compensation from a non-state party or acting as the agent or attorney for a non-state party in relation to any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. For example, § 4 would prohibit you from representing a private party in a licensing proceeding before a state agency. However, in order for § 4 to apply, the commonwealth must have a stake in the particular matter for which you are receiving compensation or acting as representative.

Based on the information you have provided, nothing in § 4 would prohibit your submission of a bid or your purchase of the surplus property from the City. The commonwealth is neither a party to nor has a direct and substantial interest in the transaction, which will be handled entirely at the municipal level. While local housing transactions may occasionally involve matters of direct and substantial interest to the state (for example if the state has a lien on the property for unpaid taxes, or if the transaction involves a housing subsidy administered by state housing agencies) none of these exceptions will apply to you.^[1] 

You should also be aware that the restrictions of G.L. c. 268A, § 23 may be relevant to your situation. Under § 23(¶ 2), you may not use your official clerk position to secure unwarranted privileges for yourself or others or, by your conduct, give a reasonable basis for the impression that any party can unduly enjoy your favor in the performance of your official duties.^[2] Issues under § 23 may come into play, for example, if you are called upon to participate as clerk in cases in which the City Public Facilities Department is a party during the same period in which you are privately dealing with that same agency for the surplus property. Should such a situation arise, you should either refrain from participating in the matter, or discuss the matter with your appointing official to determine what safeguards can be established to dispel any impression of undue favoritism.^[3]

 

End Of Decision

^[1] Under G.L. c. 268A, § 7, a state employee may not have a financial interest in a second contract made by a state agency. Inasmuch as the contract for the property purchase will be made by a city, as opposed to a state agency, § 7 will not apply.

^[2] These standards are designed to avoid situations where the integrity and credibility of an employee's work may be called into question. Compliance with these standards requires safeguards to insure that your decisions, as a state employee, are not clouded by personal or private loyalties. EC-COI-83-128. Application of these standards must take into account that a court clerk is "a public officer clothed with official functions of a highly important nature." Massachusetts Bar Association v. Cronin, 531 Mass. 521 (1966), and that conforming court clerks to essential standards will "ensure the integrity of the judicial system, which must not only be beyond suspicion but must appear to be soon "Id." EC-COI-84-53.

^[3] On July 9, 1983 the Supreme Judicial Court ruled that the Commission does not possess the jurisdiction to enforce G.L. c. 268A, § 23. The discussion contained above is based on prior Commission rulings and is intended to provide guidance to you.