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Opinion

Opinion EC-COI-89-32

Date: 11/09/1989
Organization: State Ethics Commission

A special municipal police officer who owns the only garage in the town with a tow truck is considered a "special municipal employee" in his part-time police officer position. As a special, the officer may repair town fire trucks if his police duties do not include matters concerning the fire department, and if he files a written disclosure with the Town Clerk. He may provide towing services to the town, provided he complies with the exemption requirements of section 20(d).

Facts

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You are a part-time, special police officer in a Town (Town). Special police officers have been designated special municipal employee positions by the Board of Selectmen. You are appointed to the special police officer position each year by the Board of Selectmen and you serve in that position approximately a maximum of four hours per month or not more than twenty days in a year.

Recently you opened your own garage in Town specializing in truck and heavy equipment repair as well as customizing four wheel-drive vehicles. You are the sole owner and employee of the garage. Your business owns the only towing truck in Town. Occasionally, you receive calls from the Town to tow vehicles although you state that towing is a very minor part of your business. If you are unavailable, a wrecker is called from another Town. As a special police officer, you are not authorized to call a wrecker and you may not, in your official capacity, call your own tow company nor solicit business for your company. A police sergeant or other officer in charge must authorize a call for towing a vehicle according to information provided by the Town, you have complied with the requirements of a s.20(d) exemption.[1] In addition, you repair Town fire trucks.

As a tower of motor vehicles, you are licensed by the state Department of Public Utilities (DPU) as a common carrier of motor vehicles." G.L. c. 159B, s.3(a),(b). DPU sets the maximum allowable rates for towing and storage ordered by the police or other public authority or during snow removals. Id at s.6C and s.6B. You have also filed a business certificate with the Town Clerk as is required for anyone doing business under a title other than the operators real name. G.L. c. 110, s.5.[2]

The Town Police Chief states that the Police Department has no formal policy on the use of tow operators and that no rotation list is in effect as that type of arrangement has been unsuccessful. He states there are five tow operators on the Department's list and all are located within a ten-mile radius of the Town. A tow operator is placed on the Department's list by request. There is no application or bid process. According to the Chief, the Department generally calls you first since you are the closest tower. If you are unavailable to do a police tow, the next company on the list is called. A tower may refuse a police tow, for instance if he has a private tow request. Tow operators may charge more money for private tows. The procedure for towing vehicles requires the patrolman to call the Police Chief who then authorizes a tow.

Towing for the State Police is a separate matter. In order to do so, a tow operator must register with the State Police and generally guarantee towing availability at all hours of the day. Once you register with the State Police, you would be placed on a rotational list for your area and called whenever the need arises.

Questions

1. May you continue to be as a Town special police officer in view of your ownership of a garage in Town which has the only towing truck in Town?

2. May you repair Town fire trucks?

Answers

1. Yes, subject to the provisions of s.s.20 and 23 of 268A.

2. Yes, subject to s.20.

Discussion

As a Town part-time police officer, you have been classified as a "special municipal employee" within the meaning of the conflict law, G.L. c. 268A, s.1(n).[3]

Section 20

Section 20 of G.L. c. 268A prohibits a special municipal employee from having a direct or indirect financial interest in a contract made by any municipal agency of the same town. The purpose of this section is to avoid the perception that Town employees enjoy an "inside track" on Town contracts or employment.

Despite the general prohibition of s.20, there exists in s.20(c) an exemption which permits you to repair fire trucks. Section 20(c) would exempt you as a special municipal employee if your police duties do not include matters concerning the fire department and you file a written statement with the Town Clerk's Office disclosing your interest in your paid arrangement to repair Town Fire Department vehicles. With respect to your towing vehicles in response to a Town Police Department request, however, the Commission finds that you have a financial interest in a contractual arrangement with your own municipal department, and thus you must comply with the requirements of a s.20(d) exemption.

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The Commission has articulated through established precedent a broad view as to what constitutes a contract for the purposes of the conflict law. See, EC-COI-85-5. It is well-settled that the Commission does not require a contract to be formalized in writing for it to result in a violation of c. 268A. See, EC-COI- 89-14; 85-79.[4] The Police Department by virtue of its police powers is charged with the responsibility of protecting the public and ensuring that the Town's public ways are safe. A police-ordered vehicle tow is performed at the direction of the Police Department. The Police Department currently has a list of five tow companies in the area. The companies have submitted their names to the Police Department to be placed on the towing call list. The Department has accepted their services by placing them on the list. You are one of the companies on the towing list. You are the sole employee of your garage. You therefore have an arrangement with the Police Department to provide towing services. You have a financial interest in that contractual arrangement each time you perform a police-ordered tow. It does not matter that the source of your compensation comes from the private vehicle owner. See, Quinn v. State Ethics Commission, 401 Mass. 210 (1987).

The fact that you are licensed by DPU, a state agency, to be a tower, does not affect our conclusion under s.20. Your contractual arrangement with the Police Department to provide towing services is not a license from the Town. Rather, your DPU license allows you to engage in a contractual arrangement with the Police Department as well as to perform towing for private parties.

Therefore, in order to avoid a violation of s.20 by virtue of your police position and your towing agreement with the Police Department, s.20(d) requires you to file a written disclosure with the Town Clerk's office, stating your garage's financial interest in towing for the Town, and the Selectmen must approve your exemption from s.20. According to the Town, you have complied with this requirement.

Section 23

Section 23, the standards of conduct provision, is a supplemental section to the other provisions of c. 268A. Section 23(b)(2) prohibits you from using your official position to secure for yourself or someone else, any unwarranted privilege or exemption of substantial value which is not available to similarly situated individuals. An item of substantial value has been interpreted by the Commission as anything worth $50 or more.[5] For example, this section would prohibit you from conducting any private business during the hours you serve as a Town police officer. Similarly, this section would prohibit your official endorsement of your garage either by handing out your garage's business card to individuals with whom you have official dealings or by making recommendations to such individuals. See, EC-COI-81-87; 84-127.

Section 23(b)(3) prohibits you from engaging in activity which would cause a reasonable person to believe that your official actions are unduly or improperly influenced because of the kinship, rank, position or undue influence of any person. In other words, this subsection prohibits you from engaging in activity creating the appearance of a conflict of interest. For example, if you have official dealings with a private client of your garage, issues under s.23 may be raised where it could reasonably appear that your official actions may be improperly influenced by that prior business relationship. An exemption from this section is available to you, however, if you disclose in writing to your appointing authority the facts of the situation creating the appearance of a conflict. This disclosure should be made in advance of your activity proscribed by this section.

Furthermore, you should be aware that s.23(e) provides that additional standards of conduct may be promulgated by your Town or Town department. See, EC-COI-85-12; 88-17. You should check with your town counsel to determine whether any such rules or regulations could apply to your circumstances.[6]

 

[1] The exemption in G.L. c. 268A, s.20(d) applies to

". . . a special municipal employee 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, if the city council or board of aldermen, if there is no city council, or the board of selectmen approve the exemption of his interest from this section. . ."

[2] You are aware of no other rules or regulations pertaining to the operation of your towing business. For the purposes of this opinion, the application of G.L. c. 40, s.22D would not change any conclusions contained herein. Upon acceptance of c. 40, s.22D, a municipality may authorize its police officers either to tow vehicles or to have the towing performed by an independent contractor.

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[3] You also would be considered a "municipal employee" in your performing towing services for the Town since you would be a person performing services for a municipal agency by appointment, or contract of hire or engagement, and serving with compensation on a part-time or intermittent basis. The definition of a "municipal employee" has broad application. See, Buss, The Massachusetts Conflict of Interest Law: An Analysis, 45 B.U. Law Rev. 299,311 (1965).

[4] This analysis is distinguishable from Central Tow Co., Inc. v. City of Boston, 371 Mass. 341 (1976). Central Tow involved a towing company which sought recovery of unpaid towing and storage fees from the City where owners failed to claim their vehicles which had been towed under police order. The court held that the City bad no contractual obligation to pay such fees where they had not been expressly contracted for in accordance with the relevant statutes. This decision did not reach the issue of the tower's authorization to collect towing fees from the owner of the towed vehicle.

[5] See, {Commission Advisory No. 8}.

[6] Under the facts you have presented, the conduct of your towing business does not present inherently incompatible employment with your part-time police position under s.23(b)(1). Your special police duties do not include towing assignments, nor are you working for a company which has substantial needs for the police department's services. Compare, In the Matter of John DeLeire, 1985 SEC 236.

 

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