Opinion  EC-COI-86-18

Date:	09/16/1986
Organization:	State Ethics Commission

A county sheriff’s office employee is prohibited under § 14 of the conflict of interest law from also serving civil process as a deputy sheriff.

Facts

You are an employee in the A8C County Sheriff’s Office. During off-duty hours, you also serve civil process as a deputy sheriff in ABC County. An attorney requesting your services is billed the appropriate fee as listed in G.L. c. 262, § 8 by the Deputy Sheriffs Office, which office then compensates you for serving the process. A deputy sheriffs authority to serve civil process is also established by statute. G.L. c. 97, § 11; c. 220, § 7.^[1]

Question

Does the state's conflict of interest law, G.L. c. 268A, permit you to serve in both positions?

Answer

No.

Discussion

As an Assistant Deputy Superintendent in the ABC County Sheriff’s Office, you are considered a county employee for purposes of the conflict of interest law, and are consequently subject to the provisions of that law. G.L. c. 268A, § 1 et seq. Section 14 prohibits a county employee from having a financial interest, directly or indirectly, in a contract made by the same county. You clearly have a financial interest in your deputy sheriff appointment since you receive fees for performing deputy sheriff duties. The issue remaining is whether serving as a deputy sheriff results in a contract between the appointee and the county within the meaning of G.L. c. 268A, § 14.

The Commission recently decided a similar issue at the state level. See, In the Matter of Robert J. Quinn, 1986 Ethics Commission ________. The issue In the Matter of Robert J. Quinn was whether serving as a bail commissioner resulted in a contract between the appointee and the Superior Court [the appointing authority] within the meaning of G.L. c. 268A, § 7 [the state equivalent to § 14.] In Quinn, the Commission concluded, inter-alia, that serving as a bail commissioner results in a contract between the state and the bail commissioner as the word "contract" (which is undefined in G.L. c. 268A) is used in traditional contract law of offer, acceptance, and consideration.^[2] "The state offers the opportunity to be appointed and to serve as bail commissioner subject to regulation and supervision by the Superior Court. Acceptance occurs on each occasion a bail commissioner agrees to perform those services subject to applicable regulation."^[3] In analyzing the "contract" in Quinn, the Commission considered six standards, including whether:

1. the appointment confers upon the appointee the powers normally associated with public office;
2. the duties are similar or identical to the duties performed by public employees;
3. there is a lack of choice in who will receive his services;
4. the place for provision of the services is on public property;
5. the procedures and work product of the appointee are substantially regulated by a public agency or by law;
6. compensation for providing the services is specifically and substantially regulated by a public agency or by law.

On the basis of the above standards (1),(2),(5) and (6), the Commission concludes that your service as an appointed deputy sheriff in exchange for fees results in a contract within the meaning of G.L. c. 268A, § 14 between you and the County.^[4]

The office of deputy sheriff was created by statute, G.L. c. 37, § 3. Deputy sheriffs are appointed by the Sheriff and must "be sworn before performing any official act." Id. Deputies are charged by statute with assisting the sheriff, a county officer, in the discharge of his Official governmental duties. See, inter-alia, G.L. c. 37, § 11 and c. 220, § 7 (service of process); c. 37, § 13 (requisition of aid in apprehending an individual); c. 37, § 16 (attendance at sessions of courts); c. 37, § 24 (transportation of prisoners or persons in custody); c. 41, § 37 and c. 60, § 34 (execution of warrants to detain property or arrest individuals delinquent in the payment of taxes); c. 120, § 13 (warrantless arrest of a DYS ward who has breached parole); c. 138, § 42 (execution of search warrants to search and seize unlawful use or possession of alcoholic beverages); c. 185, § 13 and 25A (attend sittings of land court and serve process from that court); c. 213, § 11 (authority to adjourn a court session in the absence of the Justice).

The deputy sheriffs authority to serve civil process, his conduct while serving, and the fees he may charge individuals for his services are also comprehensively regulated by statute. G.L. c. 37, §§ 11 and 14; c. 147, § 8A; c. 220, § 7; c. 262, §§ 8 and 8A; MRCP 4c. The variety of duties and the specific fees a deputy sheriff may charge for such service is enumerated at length in G.L. c. 262, § 8. Deputies are also required to make an annual accounting of the fees they collect. G.L. c. 262, § 8A.

In summary, deputy sheriffs are appointed by a county officer, carry the statutory authority to perform governmental functions, and have a fee schedule which is regulated by statute. The Commission concludes that a contract results on each occasion a deputy sheriff accepts the opportunity of his appointment and serve process pursuant to statutory requirements. See, In the Matter of Robert J. Quinn, supra. Your financial interest in such a contract, i.e. your receipt of fees for serving process as a deputy sheriff, therefore violates § 14.^[5]


End Of Decision

[1] The ABC County Deputy Sheriffs Office is organized as a de facto unincorporated partnership. It is not a legal or taxpaying or tax reporting entity. Out of each fee collected, fifty percent is allocated to administrative costs and fifty percent to the deputy who serves process. This opinion is limited to the structure as described to us.

[2] The fact that the bail commissioner receives fees from someone other than the state was held to be irrelevant. "Section 7 prohibits a financial interest in a contract made by a state agency, not in one funded by the state. It is the existence of compensation, not the identity of its source, that is the issue." Quinn, supra. The opportunity to earn compensation from third persons is sufficient to support a contract. Id. (cites omitted).

[3] See, footnote 5 in Quinn, supra.

[4] The Commission recognizes that the inapplicability of standards (3) and (4) to your duties as a deputy sheriff distinguishes your situation from that of a bail commissioner in Quinn. Because deputy sheriffs' powers duties, procedures and fee schedules are extensively regulated by statute, the Commission finds such distinguishing factors non-dispositive of the contract issue.

[5] You are ineligible for any exemption under § 14, because you are employed by the office of the county officer who also appoints you as a deputy sheriff.