Settlement  In the Matter of Ogden Suffolk Downs, Inc.

Date:	05/14/1985
Organization:	State Ethics Commission
Docket Number:	288

Disposition Agreement

This disposition agreement (Agreement) is entered into between the State Ethics Commission (Commission) and Ogden Suffolk Downs, Inc. (Suffolk Downs) 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 Suffolk Downs. The Commission concluded its inquiry and on April 2, 1985, found reasonable cause to believe that Suffolk Downs violated G.L. c. 268A. The parties now agree to the following findings of fact and conclusions of law: 

1. Suffolk Downs owns and operates Suffolk Downs Racetrack which 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. 

2. 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. 

3. In 1972, the then fire chief obtained a written opinion from the city solicitor of Revere that he could be hired and paid privately by Suffolk Downs for services performed as supervisor of fire prevention and supervisor of the fire watch detail in the stable area. 

4. In or about September of 1981, Suffolk Downs hired and began to pay Revere Fire Chief James Connery (Chief Connery) $150 per week for such services. These 150 dollar payments were made directly by the track by check, were properly reflected on the books and records of Suffolk Downs, were reported to the appropriate taxing authorities, and were continued until March of 1985. No specific hours or written work product or reports were required. Suffolk Downs had no business relationship with Chief Connery prior to his 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] he 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. 

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 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 the "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, Suffolk Downs cannot pay Chief Connery to supervise detail work, perform the inspections or provide fire safety and prevention advice. These are all services Chief Connery is required to perform as chief and is paid to provide by the city. 

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

8. By paying Chief Connery $150-weekly payments for the services described in paragraph 4 above, services which were within the chiefs official responsibilities and duties as fire chief and for which he was already being paid by the city of Revere, Suffolk Downs gave substantial value for or because of his official acts as fire chief. Therefore, Suffolk Downs violated s. 3(a).  

9. In its defense, Suffolk Downs points to its good faith reliance on the 1972 opinion letter from the then city solicitor to the then fire chief informing him that he could be paid privately by Suffolk Downs for being supervisor of fire prevention and the fire-watch detail in the stable area 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. 

There also exists a second city solicitor's opinion letter which Chief Connery 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 Suffolk Downs:

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

2. that it 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 where 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).