Opinion  EC-COI-85-8

Date:	01/31/1985
Organization:	State Ethics Commission

A municipal police chief may also serve as a deputy sheriff, subject to several limitations. He may neither serve civil process in any matter in which the municipality is a party or has a direct and substantial interest (§ 17); nor receive compensation from the municipality for his services (§ 20), nor use municipal telephones supplies, automobiles or personnel for his deputy sheriff activities (§ 23).

Facts

You are the chief of police of a Town (Town) and have served in this capacity for several years. You also hold the position of deputy sheriff of a county. You were appointed by the sheriff of the county to this position as a civil process server and serve at his pleasure. As deputy sheriff, you post a bond which serves to indemnify the sheriff of the county for any malfeasance alleged against you. The position of deputy sheriff is not compensated by the county. Your office is in your home, and you are contacted by attorneys and private persons for service of summons, notices and other legal process. You are compensated directly by these persons, and you retain all fees. You also serve civil process on behalf of the Town at no charge. As deputy sheriff you state that you serve civil process on your off-duty time. You do not wear your police uniform or represent yourself as a police officer while serving process.

Question

What restrictions does G.L. c. 268A place on your serving as deputy sheriff for the County?

Answer

You are subject to the restrictions discussed below.

Discussion

Initially, the Commission advises you that, as chief of police for the Town, you are a "municipal employee" within the meaning of G.L. c. 268A, § 1(g).^[1] For the purposes of the question you pose, the relevant-sections of G.L. c. 268A are §§ 17, 20, and 23.^[2]

Section 17

As a municipal employee, you are prohibited by G.L. c. 268A, § 17 from receiving compensation from or acting as agent for anyone other than the Town in relation to any particular matter in which the Town is a party or has a direct and  substantial interest. The definition of particular matter includes judicial proceedings.^[3] You are therefore prohibited from serving civil process for any person with respect to a claim or judicial proceeding against the Town. You are also prohibited from serving process for a private party where the Town has a direct and substantial interest in the proceeding. The Town may not be a party to a proceeding but may nonetheless have a direct and substantial interest in the outcome. For example, if a Town resident applied for a waiver from a state agency to develop a piece of land, the Town may not be a party to the proceeding; however, it might have a direct and substantial interest in the outcome. Should a question arise concerning the application of § 17 to any proceeding for which you are serving process, you should seek a ruling from the Town Counsel under G.L. c. 268A, § 22.

Section 20

This section prohibits a municipal employee from having a financial interest, directly or indirectly, in a contract made by a municipal agency of the same town in which the town is an interested party. By serving civil process as a deputy sheriff for the Town, you would be performing services for a municipal agency.^[4] If you received compensation from the Town for serving civil process as deputy sheriff you would have a financial interest in a contract within the meaning of § 20. Accordingly, you cannot serve civil process as deputy sheriff on behalf of the Town if you receive compensation from the Town for those services. You should therefore continue your practice of serving civil process for the Town on an uncompensated basis.

Section 23

As a municipal employee, you are subject to the standards of conduct contained in § 23. This section prohibits you from using or attempting to use your official position as chief of police to secure unwarranted privileges or exemptions for yourself or others. Thus, you may not use the Town's supplies, its employees, or its telephones for your deputy sheriff services. For example, you may not use the telephone in your Town office for any purposes related to your deputy sheriff duties. You may not, while travelling on the Town's business, also perform deputy sheriff services to save yourself another trip. Further, you may not solicit potential clients for your deputy sheriff services by referring to your qualifications as the chief of police. See, EC-COI-82-52.

End Of Decision 

^[1] For the purposes of G.L. c. 268A, § 1(g), "municipal employee" is defined as "a person performing services for or holding an office, position, employment or membership in a municipal 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, but excluding (1) elected members of a town meeting and (2) members of a charter commission established under Article LXXXIX of the Amendments to the Constitution."

^[2] In view of the range of the restrictions applicable to you as a municipal employee, it is unnecessary to determine whether you would also be a "county employee" for G.L. c. 268A purposes by virtue of your deputy sheriff duties. Even assuming that you were found to be a county employee or special county employee, you would not be subject to any additional restrictions beyond those to which you are already subject as a municipal employee.

^[3] For the purposes of G.L. c. 268A, § 1(k), "particular matter'' is defined 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 and property."

^[4] For the purposes of G.L. c. 268A, § 1(f), "municipal agency" is defined as "any department or office of a city or town government and any council, division, board, bureau, commission, institution, tribunal or other instrumentality thereof or thereunder."