The State Ethics Commission (commission) concluded that Robert J. Quinn violated § 7 of the State's conflict of interest law (G.L.c. 268A [1986 ed.]) when he served both as acting comptroller of the Massachusetts Water Resources Authority (MWRA) and as a bail commissioner appointed by the Superior Court of the Commonwealth pursuant to G.L.c. 276, § 57 (1986 ed.). Section 7, whose first paragraph is set forth in full in the margin,
Quinn appealed the commission's decision to the Superior Court. See G.L.c. 268B, § 4 (k) (1986 ed.); G.L.c. 30A, § 14 (1986 ed.). A judge of that court reported the case to the Appeals Court.
The commission's interest in the dual role of Quinn as a State employee of one agency and as a bail commissioner began in October, 1983, when the commission advised Quinn that his dual activities violated, not § 7, but § 4 of G.L.c. 268A. The commission ultimately abandoned § 4 as the basis for its concern, and in April, 1985, turned to the question whether Quinn's conduct violated § 7. In February, 1986, the commission held a hearing which led to its May, 1986, decision against Quinn.
We first consider the role of a bail commissioner. A bail commissioner performs duties which are identical to those performed by judges and clerk-magistrates in passing on prisoners' applications to be admitted to bail.
The duties of a bail commissioner stated by statute (G.L.c. 276, §§ 57, 58, 60, 61, 62-66) are supplemented by Rules Governing Persons Authorized to Take Bail (as amended in 1985) adopted by the Superior Court. These detailed provisions setting forth the manner and conditions under which a bail commissioner will perform his duties demonstrate beyond serious debate that a bail commissioner performs an important quasi judicial service for the Commonwealth within carefully prescribed conditions. Rule 14 requires a bail commissioner to respond with all reasonable promptness to calls for his services. The Superior Court supervises the distribution of work among bail commissioners to assure equitable treatment. The fact that the prisoner pays the commissioner's fee and may receive a benefit from the commissioner's services does not alter the fact that the commissioner is performing a service for the Commonwealth, in the same way a judge or a clerk-magistrate does.
Under § 7, a State employee may lawfully perform certain part-time personal services for compensation for another governmental entity. For example, on certain conditions, a State employee may be compensated for part-time teaching in "an educational institution of the Commonwealth" and for part-time employment in certain State-funded facilities, such as correctional, public health, and mental health facilities. § 7. Some of the same considerations that support the exceptions made for these State employees might warrant adoption of a statutory exception for bail commissioners. Section 7 does not, however, provide a general exception for all State employees who want to work part-time for another State agency, even if it is clear that (1) the employee's status as a State employee was not a factor in his obtaining part-time employment with the second government agency and (2) that status has no bearing on the amount of part-time service the employee may be asked to provide. The fact that the record does not show either that Quinn has compromised his position as bail commissioner or that there is an actual conflict is of no significance, although the dissent somehow finds some solace for its position from these facts. The commission ruled that no exemption or exception under § 7 applied to Quinn, and he does not contend otherwise.
The commission concluded, based on "the broad language" of § 7 and "the preventative purposes of the conflict of interest statute" that acting "as a bail commissioner in exchange for fees results in a contract within the meaning of [§ 7] between the Superior Court Department and the bail commissioner" whenever "the bail commissioner accepts the opportunity of his appointment and performs his duties and service pursuant to statutory requirements." The commission further stated that there was a contract between Quinn and the Commonwealth under traditional contract law principles. We prefer the latter analysis (see Conley v. Ipswich, 352 Mass. 201, 203-204 ), tested against the legislative purpose of § 7.
Certainly at the time Quinn accepts a fee from a person seeking bail he has a direct financial interest in his contract with the judicial department of government. We need not decide
Consistent with the legislative purpose of c. 268A, section seven does not deny a State employee the right to serve others at their request as a notary public, an auctioneer, a doctor, or an electrician, or in some other capacity in which the Commonwealth has granted him or her a license or commission to engage in a trade, profession, or activity. In those capacities the State employee is primarily serving a private person or entity and not the State. A person with such a license or commission makes no promise to do anything for the benefit of the Commonwealth in exchange for the commission or license (unless the Commonwealth is a customer, client, patient, or the like). There is thus for these people no contract in the sense of the word in § 7.
A bail commissioner, on the other hand, is acting primarily to fulfill the interests of the Commonwealth. When Quinn, as an employee of the MWRA, also serves as a bail commissioner, he serves at the same time in two compensated capacities for the Commonwealth. That is what, barring exception or exemption, § 7 prohibits.
LIACOS, J. (dissenting, with whom Nolan and Lynch, JJ., join).
I dissent. The court decides today to uphold the newly expanded view of the State Ethics Commission (commission) of the sweep of G.L.c. 268A, § 7 (1986 ed.), in an area in which, as the court states, for "more than twenty years ... no action was taken" by the Attorney General or by the commission. The impact of this decision is, in my view, such as to call into question accepted practices not only as to the appointment of bail commissioners, but also other officers, such
In my view, the proper course would be to eschew the traditional contract law analysis which the court embraces so as to ascertain correctly the intention of the Legislature in enacting G.L.c. 268A. The court's reliance on technical contract analysis to arrive at the conclusion that Quinn is violating § 7 of the conflict of interest law obscures the situation and results in a finding of a conflict of interest where the Legislature never intended one to be found and where one does not exist. "Our task [should be] to interpret the statute according to the intent of the Legislature, as evidenced by the language
A brief survey of the history of the enactment of G.L.c. 268A is helpful. In 1961, following a major scandal involving the Metropolitan District Commission, the General Court first considered comprehensive conflict of interest legislation.
In essence, the statute seeks to combat secret dealings, influence peddling and other activities where the employee is confronted with a conflict of interest. Sciuto v. Lawrence, 389 Mass. 939, 946 (1983). Everett Town Taxi, Inc. v. Aldermen of Everett, 366 Mass. 534, 535 (1974). The statute has both criminal and civil aspects. Saccone v. State Ethics Comm'n, 395 Mass. 326, 328-330 (1985). Compare, e.g., G.L.c. 268A, §§ 2 and 3 (criminal), with § 9 (civil). Sections 2 and 3 deal with bribery and the offering or acceptance of gifts that are meant to influence an employee. Section 5 precludes former State employees, in specified circumstances, from acting as attorneys or agents for others in matters in which the Commonwealth has a financial interest. The basic concept of this law is signified in the words of the Legislative Research Council: "A conflict of interest in government exists when a government employee is involved in any personal action which affects the public interest. In more explicit terms, a conflict arises when a legislator or other public official is placed in a position where,
The conduct the legislators sought to prohibit when they wrote § 7 also involved conflict — the conflict that arises due to self-dealing and double allegiances. The Legislature did not want a State employee to use his position as a State employee to obtain for himself a financially beneficial contract, and the Legislature did not want the State employee's actions and judgment to be clouded because of an extracurricular contract. Neither of those situations is involved here.
Quinn works full time for the Massachustts Water Resources Authority (MWRA), a division of the executive branch. On an occasional night or weekend, he works as a bail commissioner for the Superior Court, a division of the judicial branch. There is nothing in the record that suggests that Quinn used his position in the MWRA to obtain the bail commissioner position, a position in an unrelated department in a separate branch of government. Furthermore, nothing in the decision of the commission, or in this record, indicates that his position in the MWRA is compromised by his position as bail commissioner or that he cannot faithfully perform his duties as bail commissioner. His dual positions have not, in any way, made it "difficult or impossible to devote himself with complete energy and loyalty to the public interest." Quinn is holding two distinct jobs. There is no conflict — the conduct the Legislature sought to proscribe.
The court's attempt to distinguish notaries public from bail commissioners seems to me to be disingenuous. If strict contract analysis applies in this case, then it also applies to State employees who are notaries public, and their activities would also involve conflicts of interest. Like bail commissioners, notaries public are appointed. G.L.c. 222, § 1 (1986 ed.). Notaries public make themselves available to serve the public.
I find it difficult to accept that the Legislature intended, by the enactment of G.L.c. 268A, the consequences the court reaches today. The inactivity of the commission for many years leads me to believe that it, too, did not conceive that the Legislature intended that it have the power to regulate bail commissioners in the way it now claims. One must wonder where this result will lead, and whether the result achieved here will truly elevate honest government or simply, and unfortunately, effectively deprive many prisoners of their right to be free on bail. G.L.c. 276, § 58 (1986 ed.). I dissent.
"A state employee who has a financial interest, directly or indirectly, in a contract made by a state agency, in which the commonwealth or a state agency is an interested party, of which interest he has knowledge or has reason to know, shall be punished by a fine of not more than three thousand dollars or by imprisonment for not more than two years, or both."
In his report the judge recites that twenty-seven bail commissioners, approximately one-third of the eighty-five bail commissioners, are State employees. He adds that the Bail Committee of the Superior Court is concerned that some bail determinations may not be made seasonably if those bail commissioners who have other State jobs are disqualified from acting as bail commissioners.
The Governor, on petition of certain municipal officials, may commission a justice of the peace in the locality to take bail in criminal cases arising within the local judicial district. G.L.c. 218, § 36 (1986 ed.). Masters in chancery (G.L.c. 221, § 53) may also take bail. G.L.c. 276, § 57. The head of the office of bail administration in the office of the Administrative Justice of the Superior Court testified before the commission that in recent years Governors have taken the view that, because the Superior Court supervises all bail matters, the categories of justice of the peace and master in chancery authorized to take bail should fall by the wayside and that only bail commissioners should be appointed. He added, however, that there were still a few "out there" in each category.
"The maximum fee to be charged by any person authorized to take bail or release on personal recognizance in the case of a person arrested for any misdemeanor or felony shall be fifteen dollars, regardless of the number of offenses. When the release on bail or personal recognizance is made between the hours of twelve midnight and six o'clock in the morning the maximum fee shall be twenty dollars, regardless of the number of offenses."
We reject the attempt made in the commission's brief to support its decision by reliance on G.L.c. 268A, § 4. The commission did not rely on § 4 in its decision. Earlier it had rejected the application of § 4 to Quinn. An administrative agency's appellate brief may not properly be used to provide new grounds for its decision. See Blakeley v. Assessors of Boston, 391 Mass. 473, 476 (1984).
If § 7 applies to the circumstances of this case, as we hold it does, the fact that for many years no efforts were made to enforce it as to bail commissioners who were government employees in no way calls for a different conclusion.