Quinn v. State Ethics Commission

Liacos, J.

(dissenting, with whom Nolan and Lynch, JL, 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 *219as justices of the peace and notaries public. Additionally, as the court admits, this decision may have significant impact on the availability of persons qualified to admit prisoners to bail.1 The court reaches this position even though it admits that “[t]he fact. . . that a bail commissioner ... is a State employee for the purposes of G. L. c. 268A, does not answer the question whether [he] has a financial interest in a contract made by the judicial department of State government.” I agree with the court that c. 268A defines neither “financial interest” nor “contract.”2 Supra at 215.

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 *220used, and considering the purposes and remedies intended to be advanced.” Glasser v. Director of the Div. of Employment Sec., 393 Mass. 574, 577 (1984).

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.3 The reports issued by the House and Senate commissions appointed to study the issue indicate that the Legislature was concerned with the general deterioration of the moral fiber of the State government.4 The Legislature feared that this decay in morality would permeate all departments of government.5 To combat this, the Legislature enacted G. L. c. 268A, a conflict of interest statute for public officials and employees.

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, *221for some advantage to be gained for himself, he finds it difficult or impossible to devote himself with complete energy and loyalty to the public interest.”6

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. *222The public who use the services of the notaries public pay a statutorily set fee. G. L. c. 262, § 41 (1986 ed.). The executive offers to appoint a State employee to be a notary public; the State employee offers to serve, if appointed. Each accepts the other’s offer. The State employee’s opportunity to earn fees which follow from the agreement that the employee would serve is the consideration. I find no tenable distinction between the activities of notaries public and bail commissioners regarding the applicability of G. L. c. 268A, § 7.

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.

The court states: “[W]e are concerned that the proper administration of bail proceedings in this Commonwealth not be disrupted by the application of the commission’s view of § 7 after more than twenty years during which no action was taken in this area. This court has a constitutional concern with the administration of the courts and the protection of constitutional rights of persons in custody and charged with crimes. In his discretion, the trial judge may choose to take evidence on the impact on bail-setting practices of the immediate implementation of the commission’s decision (which might eliminate almost one-third of all bail commissioners) and on whether there may be some ready procedure by which bail commissioners who hold State jobs may expeditiously be reappointed under an exemption available under § 7 or otherwise.” (Footnote omitted.) Supra at 218.

Section 7 provides in pertinent part: “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.” A strict reading of the statute would result in the ludicrous situation whereby every State employee violates the section simply by being employed by the State. Technical, or literal, interpretations of the statute lead one to results obviously not contemplated by the Legislature.

See Report Submitted by the Legislative Research Council Relative to Conflict of Interest, 1961 Senate Doc. No. 650, at 14.

See 1961 Senate Doc. No. 650, at 14; Final Report of the Special Commission on Code of Ethics, 1962 House Doc. No. 3650, at 9-10.

1961 Senate Doc. No. 650, at 14.

1961 Senate Doc. No. 650, at 15. I do not, by this brief description of the essence of the statutory purpose, purport to describe the statute in its entirety, nor to touch on its applicability to county and local public employees.