Related to:
Opinion

Opinion EC-COI-90-4

Date: 04/18/1990
Organization: State Ethics Commission

Section 4 of G.L. c. 268A permits housing court specialists to perform code inspection work for a housing authority.

Facts

Page 303

You are housing specialists employed by the ABC Division of the Housing Court Department of the Trial Court (Housing Court). The ABC Division is one of several housing courts established under G.L. c. 185C with jurisdiction over certain civil and criminal actions relating to laws concerned with the health, safety or welfare of tenants, as well as all housing problems, including all contract and tenant actions which affect the health, safety and welfare of the occupants or owners" of property within the geographical jurisdiction of the court. G.L. c. 185C, s.3,[1] as appearing in St. 1978, c. 512, s.15.

As housing specialists, you inspect property, mediate landlord-tenant factual disputes, and coordinate the court resolution of housing problems.

Page 304

You are also both certified code enforcement inspectors and have been asked by the XYZ Housing Authority (XYZ) to perform code inspections for its Section 8 and Chapter 707 housing programs. Housing authority certification of compliance with the state sanitary code is a condition to rental of an apartment under these housing programs.

You state that makers involving units owned or managed by XYZ do not regularly or frequently come before the ABC Housing Court. For example, most alleged building code violations in XYZ units are handled by the city Housing Department, an agency of that city, rather than through resort to the ABC Housing Court.

You have reviewed your prospective employment plans with the First Justice of the ABC Housing Court, who has implemented certain interim standards pending formal consideration of your advisory opinion request by the full Ethics Commission. 

Question

Does G.L. c. 268A permit your proposed code inspection work for the XYZ while you also serve as housing specialists for the ABC Housing Court? 

Answer

Yes, subject to the conditions set forth below. 

Discussion

As housing specialists employed by the ABC Housing Court, you are considered state employees for the purposes of G.L. c. 268A. 

1. Limitations on Your Proposed XYZ Activities. 

As state employees, you are subject to certain limitations on your proposed outside activities. Under G.L. c. 268A, s.4(a), a state employee is prohibited from receiving compensation from any non-state party such as XYZ in connection with any determination or other "particular matter"[2] in which the Commonwealth or any state agency is a party or has a direct and substantial interest. Assuming that a state agency such as the Department of Community Affairs has a direct and substantial interest in housing code compliance certifications, your proposed compensated code inspection activities for the XYZ would violate G.L. c. 268A, s.4. A 1980 exemption to G.L. c. 268A, s.4, however, permits most of your proposed inspection activities. Under St. 1980, c. 10,

This section [4] shall not prohibit a state employee from holding an elective or appointive office in a city, town or district, nor in any way prohibit such an employee from performing the duties of or receiving the compensation provided by such office. No such elected or appointed official may vote or act on any matter which is within the purview of the agency by which he is employed or over which such employee
has official responsibility.

Because the XYZ is a municipal agency for the purposes of G.L. c. 268A, see G.L. c. 121B, s.7, you may hold an appointed, compensated position with the XYZ provided that you not act or vote in your XYZ inspection capacity on any matter which is within the purview of the ABC Housing Court. For example, if a matter is pending before the ABC Housing Court relating to the compliance by an XYZ unit with the state sanitary code, you are prohibited by s.4 from performing paid sanitary code inspection services for the XYZ in connection with that unit. On the other hand, the exemption to s.4 permits you to perform inspection work in connection with housing units which are not the subject of a ABC Housing Court
proceeding.

Under G.L. c. 268A, s.23(b)(1), a state employee is prohibited from accepting other employment, the responsibilities of which are inherently incompatible with the responsibilities of his public office. In previous rulings, the Ethics Commission has prohibited outside employment which requires an advocacy or mindset which conflicts with an employee's impartial performance of duties, EC-COI-82-7, or which involves activities for an organization which has substantial needs for the employee's official services. In the Matter Of John DeLeire, 1985 SEC 236.  In light of the relative infrequency of XYZ matters before the Court, and the determination by the First Justice that your proposed compensated XYZ inspections are not inherently incompatible with your housing specialist responsibilities under the conditions established by the First Justice, we conclude that your acceptance of XYZ employment would not violate s.23(b)(1). See, EC-COI-89-30. We also take note of G.L. c. 268A, s.23(d) which provides that any activity specifically exempted under any other section of G.L. c. 268A will also be exempt from the provisions of
s.23. In any event, the Court is free to establish additional standards which are stricter than those found in s.4. See, LaBarge v. Chief Administrative Justice, 402 Mass. 462 (1988).

Page 305 

2. Limitations on Your Court Activities 

Section 6 prohibits a state employee from officially participating in any matter which affects the financial interests of a business organization which employs him. Because XYZ is considered a business organization for G.L. c. 268A purposes, EC-COI-88-4, you will be required to abstain from participating as housing inspectors in any matter involving the housing authority which employs you, including units rented under XYZ programs. This abstention requirement will continue to apply unless you receive from the presiding justice written permission to participate in these cases, pursuant to the standards of s.6(3).[3] The abstention requirement will not apply to matters involving other municipalities or housing authorities since XYZ will not have a foreseeable financial interest in those matters.  You state that you have received from the First Justice conditional permission to participate as court housing specialists in certain matters in which the XYZ is a party. Those conditions prohibit your participation in such matters unless you have fully disclosed on the record to the parties, all of whom must be represented by counsel, your employment arrangement with the XYZ and have received written consent from the parties to participate in the case. Insofar as the exemption standards of s.6 are concerned, we see nothing which would prohibit an appointing official from permitting participation by an employee subject to particular conditions. Where an appointing official possesses discretion under s.6 to entirely permit or deny participation by an employee, it logically follows that an appointing official possesses the authority to establish conditions on participation. This is particularly apt where, as here, the conditions established by the appointing official reasonably relate to preventing any perception that an employee's official judgment may be clouded by competing private loyalties. Pursuant to G.L. c. 268A, s.6(3), a copy of the conditions permitting participation should be filed with the Commission.

We would add that the statutory exemption scheme in G.L. c. 268A, s.6 requires an appointing official to evaluate the substantiality of the financial interest at issue. In your case, the First Justice must evaluate the financial interest of the XYZ which is at stake in each XYZ-related matter which comes before you as a housing specialist. In cases in which the financial interests of the XYZ are substantial, the First Justice may very well determine that the financial interest will effect the integrity of your services and that your participation would therefore not be appropriate, even following disclosure to and consent by the interested parties. In such cases, the First Justice should assign the XYZ-related matter to a different housing specialist.

Finally, you should observe the limitations of G.L. c. 268A, s.23(b)(2). This section prohibits a state employee from using his official position to secure unwarranted privileges or exemptions of substantial value for himself or others. As applied to you, s.23(b)(2) requires that you perform your housing authority activities entirely outside of your Court work schedule and that you refrain from using any Court equipment or resources to carry out your housing authority activities.

[1] The enactment of this statute expanded the jurisdiction of the ABC Division and other housing courts. See, Harker v. Holyoke, 390 Mass. 555 (1983); Chakrabati v. Marco S. Marinello Associates, Inc., 377 Mass. 419 (1979).  [2] "Particular matter," 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.  [3] Under s.6,  Any state employee whose duties would otherwise require him to participate in such a particular matter shall advise the official responsible for appointment to his position and the state ethics commission of the nature and circumstances of the particular matter and make full disclosure of such financial interest, and the appointing official shall thereupon either

(1) assign the particular matter to another employee; or

(2) assume responsibility for the particular matter;

(3) make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the commonwealth may expect from the employee, in which case it shall not be a violation for the employee to participate in the particular matter. Copies of such written 

Page 306

determination shall be forwarded to the employee and filed with the state ethics commission by the person who made the determination. 
  

Feedback

Tell us what you think