Settlement  In the Matter of James F. Connery

Date:	04/23/1985
Organization:	State Ethics Commission
Docket Number:	285

Disposition Agreement

This disposition agreement (Agreement) is entered into between the State Ethics Commission (Commission) and James F. Connery (Chief Connery) pursuant to s. 11 of the Commission's Enforcement Procedures. This Agreement constitutes a consented to final Commission order enforceable in Superior Court pursuant to G.L. c.268B, s. 4(d).

On October 16, 1984, the Commission initiated a preliminary inquiry pursuant to the conflict of interest law, G.L. c. 268A, involving Chief Connery, fire chief for the city of Revere. The Commission concluded its inquiry and on April 2, 1985, found reasonable cause to believe that Chief Connery violated G.L. c.268A. The parties now agree to the following findings of fact and conclusions of law:

1. From 1979 to the present, Chief Connery has been chief of the Revere Fire Department As such, he is a municipal employee within the meaning of G.L c. 268A, s. 1(g). As chief, he receives approximately $42,000 per year.

2. Suffolk Downs Racetrack straddles the Revere/Boston border. The stables, dormitories and kitchen are in Revere; the track, grandstands and patron parking are in Boston. Currently, roughly 1300 horses are stabled at the track, cared for by approximately 400 employees.

3. In 1972 the Revere city ordinances were revised to single out Suffolk Downs for Particular emphasis. Thus, c. 8.32 (s. 7-90 in 1972) of the ordinances, consisting of 14 sections and covering 5 pages, deals in great detail with Suffolk Downs. These ordinances are concerned with the unique fire hazards presented by the stable area. For example, they contemplate a system for replacing all the old barns and for ensuring that new barn construction meets certain codes. They also require a 24-hour fire watch detail which is provided by regular uniformed Revere Fire Department firefighters (2 on each shift). The fire chief is responsible for enforcing these ordinances and he has a specific right of entry to ensure compliance.

4. In or about September of 1981, Connery began receiving $150 per week from Suffolk Downs. He continued to receive these payments through approximately March 1985. The arrangement was oral. He was paid directly by the track. No specific hours or written work product or reports were required. Chief Connery had
no business relationship with Suffolk Downs before becoming chief.

5. In exchange for these payments, Chief Connery periodically visited the stable area in his city fire vehicle. At those times, he supervised the fire-watch detail,[1] inspected the stable area to ensure its conformance with city ordinances and state fire code requirements, and gave advice to track personnel regarding fire
safety and fire prevention issues. Chief Connery also gave advice as to how the old barns could be improved to comply with fire code requirements and conducted inspections of the adequacy of the sprinkler systems and water flow in the fire hydrants.

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6. The above-described services provided to the track fell within Chief Connery's duties and responsibilities as fire department chief. These were duties and responsibilities covered by his annual city salary. As fire chief, Chief Connery is responsible for the fire department and he is on duty 24 hours a day. As a result of city ordinances, fire department rules and regulations and his job description, he is already responsible for supervising all fire "detail" services in the city and for
enforcing the city ordinances dealing with fire prevention and for enforcing the state fire code. More particularly, he is responsible under the city ordinances for supervising the fire-watch detail in the stable area and for ensuring fire safety and prevention in that area. Therefore, he cannot supervise detail work, perform fire
inspections or provide fire safety and prevention advice for additional private compensation. These are all services he is required to perform as chief and is paid to provide by the city.

7. Section 3(b) of G.L. c. 268A prohibits any municipal employee, otherwise than as provided by law for the proper discharge of official duties, from directly or indirectly seeking or accepting anything of substantial value for himself for or because of any official act or acts within his official responsibility performed or to be performed by him.

8. By receiving $150-weekly payments from Suffolk Downs for the services described in paragraph 5 above, services which were within his official responsibilities and duties as fire chief and for which he was already being paid by the city of Revere, Chief Connery received substantial value for or because of his official
acts as fire chief. Therefore, he violated s. 3(b).

9. In his defense, Chief Connery has relied on Suffolk Downs' 20-year practice of compensating the fire chief for the services performed as fire chief in the stable area. As in past cases, the Commission will give no deference to a long-standing practice, whether or not endorsed by city officials, if that practice violates the conflict of interest law. See In the Matter of the Collector-Treasurer's Office of the City of Boston, et al., 1981 Ethics Commission 35.

10. Chief Connery has also relied on two city solicitors' opinions in his defense. The first is a 1972 opinion from the then city solicitor to the then fire chief. The Commission gives no deference to this opinion for several reasons.

First, the request for the opinion does not appear to have involved the detailed submission of facts contemplated by G.L. c.268A, s. 22.[2] Second, the opinion was not requested by or issued to Chief Connery. Third, the opinion is 9 years old. The second city solicitor's opinion on which Chief Connery relied is one he
received in November 1984.

Its conclusion -- that the chief might work for Suffolk Downs -- is wrong.[3] While the Commission might give deference to an incorrect opinion which otherwise complied with G.L. c. 268A, s.22, this opinion is essentially after the fact, the Chief having been on the Suffolk Downs payroll from September 1981. Therefore,
no deference will be given. Based on the foregoing facts, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings on the basis of the following terms agreed to by Chief Connery:

1. that he pay the Commission the sum of two thousand dollars ($2,000) as a civil penalty for violating G.L. c. 268A, s. 3(b);

2. that he refrain from accepting a private fire prevention consulting arrangement with any private entity that has substantial needs for fire protection in the city of Revere; and

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3. that he waive all rights to contest findings of fact, conclusions of law and conditions contained in this Agreement in this or any related administrative or judicial proceeding in which the Commission is a party.

[1] Firefighters provide this and other "detail" services to private entities on other than their normal shifts. They are, however, still serving as firefighters when they provide these services and are answerable to the fire chief for their conduct. They are paid for a specific number of hours at union rates set forth in the collective bargaining agreement between the fire department and the union. The fire chief is excluded from that agreement. Payments for these services are made pursuant to G.L c. 44, s. 53C which provides that when a town or city employee does "detail work" for a private entity, the town or city will bill that entity for those services, the entity will pay the city, and the city will subtract an administrative fee and then pay the employee for his services.

[2] Section 22 provides in pertinent part: any municipal employee shall be entitled to the opinion of the corporation counsel, city solicitor or town counsel upon any question arising under this chapter relating to the duties, responsibilities and interests of such employee.... The town counsel or city solicitor shall file such opinion in writing with the city or town clerk and such opinion shall be a matter of public record; however, no opinion will be rendered by the town counsel or city solicitor
except upon the submission of detailed existing facts which raise a question of actual or prospective violation of any provision of this chapter.

[3] The November 1984 opinion Chief Connery received informed him that he could be paid by Suffolk Downs for supervising the fire-watch detail in the stable area and for providing limited consulting services for Suffolk Downs on the Boston-side of the track facility. Such an arrangement is prohibited under ss. 3 and
23 of G.L. c. 268A. Chief Connery may not be paid by Suffolk Downs for supervising the detail work there because that is what the city of Revere is already paying him to do. Section 3 prohibits this (See In the Matter of the Collector-Treasurer's Office of the City of Boston, 1981 EC 35.) And s. 23(par. 2)(1) (which bars a public official from accepting other employment which will impair his independent judgment in his official capacity), prohibits a fire chief from accepting any private employment with an entity with substantial needs for his department's services, especially where the private consulting involves giving fire safety and prevention advice (See EC-COI-81-133).