Quinn v. State Ethics Com'n

• Decision Date: 10 December 1987
• Parties: Robert J. QUINN v. STATE ETHICS COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 124

516 N.E.2d 124

401 Mass. 210

Robert J. QUINN v. STATE ETHICS COMMISSION.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 9, 1987.

Decided Dec. 10, 1987.

David D. Kenefick, Norwood, for Robert J. Quinn.

Bruce T. Eisenhut, Cambridge, for State Ethics Com'n.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

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, ¹ in part forbids a State employee from knowingly having a financial interest in a contract made by a State agency in which the Commonwealth has an interest. The commission decided on May 6, 1986, that Quinn, as a compensated employee of the MWRA, a State agency (see G.L. c. 268A, § 1 [p ]; St. 1984, c. 372, § 1), violates § 7 when, as a bail commissioner, he receives a fee from a prisoner for conducting his or her bail hearing.

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. ² We granted Quinn's application for direct appellate review. ³ We conclude that judgment should be entered affirming the commission's decision.

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.

Quinn served as executive assistant to the Commissioner of the Metropolitan District Commission from July, 1977, until some time in 1985 when he became acting comptroller of the MWRA. In each of these positions he was a State employee. See G.L. c. 268A, § 1 (q ). In these positions he had a contract in which he had a financial interest and in which the Commonwealth was an interested party. In 1972, the judges of the Superior Court, acting through their Bail Committee, appointed Quinn a bail commissioner for the Northern Norfolk Division (now the Dedham Division) of the District Court Department. The Bail Committee most recently reappointed Quinn in January, 1985.

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. ⁴ A bail commissioner, however, does not normally perform services in a courthouse or during normal court hours but rather holds a bail hearing in a police station or other place of detention where a person is being held under arrest at night or on weekends or holidays. The Superior Court appoints a bail commissioner, as authorized by G.L. c. 276, § 57, to serve in a designated judicial district when the volume of business is greater than can reasonably be handled by those already authorized to act on bail applications in that district. In this way bail commissioners assist in fulfilling the Commonwealth's obligation to extend to persons arrested for crimes their statutory (G.L. c. 276, § 42) and constitutional (Massachusetts Declaration of Rights, art. 26; Eighth Amendment to the Constitution of the United States) rights to be considered for admission to bail. Bail commissioners are entitled to charge a fee to prisoners whose bail hearings they conduct. G.L. c. 262, § 24. Almost always they receive the maximum authorized fee. ⁵

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 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. ⁶ The bail commissioner's duty is owed to the judicial department of the Commonwealth, and it is to conduct bail proceedings according to law.

We consider next the statutory background that leads to the legal questions we must decide. Chapter 268A is concerned with the appearance of and the potential for impropriety as well as with actual improprieties. See Edgartown v. State Ethics Comm'n, 391 Mass. 83, 88-89, 460 N.E.2d 1283 (1984); Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U.L. Rev. 299, 374 (1965). The dissent ignores this important fact. Section 7 prohibits State employees from having financial interests in government contracts. See Buss, supra at 367; R. Braucher, Conflict of Interest in Massachusetts, in Perspectives of Law, Essays for Austin Wakeman Scott, 3, 8 (R. Pound, E. Griswold, A. Sutherland eds. [1964] ). Barring an exemption or exception under § 7, an employee of one State agency may not receive compensation for performing personal services under contract with another State agency.

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.

A bail commissioner is a State employee under the definition set forth in G.L. c. 268A, § 1(q ). A State employee includes "a person performing services for ... a state agency ... by ... appointment ... with or without compensation, on a ... part-time ... basis." Section 1 (p ) defines a State agency as "any department of state government including the executive, legislative or judicial." Surely, as we have noted, a bail commissioner performs services for the judicial department of the State government when he makes a bail determination. Quinn does not argue that a bail commissioner is not a State employee under G. L. c. 268A as a person performing services for the judicial department on a part-time basis. The fact, however, that a bail commissioner performs services for a State agency, and thus is a State employee for the purposes of G.L. c. 268A, does not answer the question whether Quinn has a financial interest in a contract made by the judicial department of State government. Chapter 268A defines neither "financial interest" nor "contract." Quinn argues that he has no contract with the Superior Court (but only with the prisoner being released on bail) and, even if he does have a contract with a State agency, he has no financial interest in it (because he is compensated by the released prisoner and not by the State).

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, 224 N.E.2d 411 [1967] ), tested against the legislative purpose of § 7. ⁷

In exchange for his appointment as a bail commissioner with the opportunity to receive fees from prisoners, Quinn has agreed with the judicial department to perform the quasi judicial duties of a bail commissioner on behalf of the judicial department whenever he is properly called upon. This arrangement has all the essential elements of an executory contract, a bargained-for exchange--offer, acceptance, and consideration. The judicial department offered to appoint Quinn; Quinn offered to serve if appointed. Each...