JOHN P. SACCONE vs. STATE ETHICS COMMISSION.

ABRAMS, J. The State Ethics Commission (commission) appeals from a judgment of the Superior Court revoking a final decision by the commission against the plaintiff, John P. Saccone. See G. L. c. 30A, Section 14 (1984 ed.). The commission found that Saccone had violated Section 23 (d) of G. L. c. 268A (1984 ed.), the conflict of interest law, on five separate occasions and assessed a civil penalty of $300 for each violation. The judge in the Superior Court determined that the commission lacked subject matter jurisdiction to enforce G. L. c. 268A, Section 23. We granted the defendant's application for direct appellate review of the case. The commission argues that the judge erred in ruling that the commission does not possess statutory

Page 327

power to enforce the provisions of G. L. c. 268A, Section 23. [Note 1] We affirm the judgment of the Superior Court. [Note 2]

We summarize the agreed facts and procedural background. Saccone was at all relevant times employed by the Department of Public Safety as a senior civil engineer assigned to the life safety code inspection unit. His official duties included conducting periodic surveys of nursing homes to ensure compliance with the Federal life safety code and State physical environment standards (State and Federal standards). He then was required to file reports regarding the conditions existing in the surveyed nursing homes and detail any deficiencies in complying with the State and Federal standards.

In the spring of 1975, Saccone was assigned to survey the North River Nursing Home (nursing home). On five separate occasions between July, 1975, [Note 3] and December, 1978, he surveyed the nursing home and filed reports stating that it had complied with several of the State and Federal standards. The commission later found that material violations of those standards existed. On two occasions during this period, Saccone accompanied Edmund W. DelPrete, president of North River Nursing Home, Inc., the corporation which owned and operated the nursing home, on trips to Italy and Brazil sponsored by the Ancient and Honorable Artillery Company (company), of which DelPrete was a member. Travel space on these trips was

Page 328

limited to company members and their guests. The commission found that DelPrete paid in whole or in part for Saccone's participation in the trip to Brazil. It also found unpersuasive certain evidence introduced at the proceedings of a prior friendship between Saccone and DelPrete.

On October 1, 1980, the commission issued an order to show cause naming Saccone as a respondent. On June 1, 1982, after an adjudicatory hearing, the commission issued a decision and an order finding that Saccone had violated G. L. c. 268A, Section 23 (d), [Note 4] which prohibited an officer or employee of a State, county, or municipal agency from using or attempting to "use his official position to secure unwarranted privileges or exemptions for himself or others," on five separate occasions and assessed five $300 penalties on that basis.

The Legislature created the State Ethics Commission in 1978 by inserting c. 268B into the General Laws. St. 1978, c. 210, Section 20. The question before us is whether the Legislature, through the enabling legislation, G. L. c. 268B (1984 ed.), authorized the commission to enforce G. L. c. 268A, Section 23, the section which the commission found Saccone had violated.

"Our task is to interpret the statute according to the intent of the Legislature, as evidenced by the language used, and considering the purposes and remedies intended to be advanced." Cardin v. Royal Ins. Co. of Am., 394 Mass. 450, 454 (1985), quoting Glasser v. Director of the Div. of Employment Sec., 393 Mass. 574, 577 (1984). In G. L. c. 268B, Section 3, the Legislature set forth the "[p]owers and duties" of the new commission. That section's only reference to the commission's civil enforcement duties is contained in Section 3 (i), which empowers the

Page 329

commission to "act as the primary civil enforcement agency for violations of chapter 268A, as specified in sections 9 and 15 of that chapter, and of this chapter [268B]." General Laws c. 268A, Section 9, is concerned with violations by State employees of Sections 2-8 of G. L. c. 268A and G. L. c. 268A, Section 15, with violations by county employees of Sections 11-14 of G. L. c. 268A. [Note 5] Both Section 9 and Section 15 also provide additional remedies designed to recoup any economic gain which may have been derived by an individual who violated any of the sections of G. L. c. 268A incorporated by reference. No reference is made in G. L. c. 268B, Section 3 (i), to the commission's enforcement powers over G. L. c. 268A, Section 23, the section at issue.

Page 330

Additionally, Sections 2-8 and Sections 11-14 of G. L. c. 268A contain criminal penalties for violations of those sections. Enforcement of the criminal penalties is left to the Attorney General and the district attorneys. Civil enforcement of those sections is granted to the commission by virtue of the reference in Section 3 (i) of G. L. c. 268B to violations of sections specified in Sections 9 and 15 of G. L. c. 268A. Our conclusion that the commission lacks authority to enforce Section 23 is buttressed by the fact that Section 23 contains no criminal sanctions. Reading the statute as a whole, we believe the Legislature gave the commission the power and duty to enforce civilly only those sections which contain criminal sanctions.

The commission argues that Section 4 of G. L. c. 268B, rather than Section 3 (i), controls here because it sets out the investigative, adjudicative, and enforcement authority of the commission. [Note 6]

Page 331

Contained in the text of Section 4 are general references to violations of G. L. c. 268A, without further limitation to Section 9 and Section 15 of that chapter. Subsection (a) of G. L. c. 268B, Section 4, provides, "Upon receipt of a sworn complaint . . . or . . . of evidence which is deemed sufficient by the commission, the commission shall initiate a preliminary inquiry into any alleged violation of chapter 268A or this chapter." Enforcement by the commission of G. L. c. 268A, Section 23, the commission argues, is therefore within the authority granted to it by G. L. c. 268B, Section 4.

The commission's argument, however, ignores the fact that Section 3 of G. L. c. 268B sets out the "[p]owers and duties" of the commission. Section 4, entitled "[i]nvestigations by the commission," merely provides the procedural mechanism and authority to accomplish the duties of the commission as already set out in Section 3. [Note 7] See Craven v. State Ethics Comm'n, 390 Mass. 191, 196 (1983). [Note 8] The general references to violations of G. L. c.

Page 332

268A contained in the procedural provisions of G. L. c. 268B, Section 4, are, therefore, limited by the specific jurisdictional authority as provided by G. L. c. 268B, Section 3 (i). Particular words and phrases narrow general terms which might embrace related acts or conduct. Koller v. Duggan, 346 Mass. 270, 273 (1963). See Haas v. Breton, 377 Mass. 591, 595 (1979). The general rule is that "[i]f a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute." Pereira v. New England LNG Co., 364 Mass. 109, 118 (1973). See Mailhot v. Travelers Ins. Co., 375 Mass. 342, 345-347 (1978). This principle is especially applicable where, as here, the specific limiting statute grants the powers of the commission, while the general language is contained in a procedural provision.

The language of G. L. c. 268B, Section 3 (i), which governs the power and duties of the commission, clearly limits its jurisdiction over civil enforcement to violations of G. L. c. 268A, Sections 9 and 15, and c. 268B itself. If the Legislature had intended to grant a plenary enforcement power, it would not have included the limiting language. "It is not to be assumed that words in a statute have no force or effect." Milton v. Metropolitan Dist. Comm'n, 342 Mass. 222, 225 (1961), quoting Gillam v. Board of Health of Saugus, 327 Mass. 621, 623 (1951). See Simon v. State Examiners of Electricians, ante 238, 242-244 (1985); Casa Loma, Inc. v. Alcoholic Beverages Control Comm'n, 377 Mass. 231, 234 (1979).

The commission's argument that G. L. c. 268B, Section 3 (i), pertains only to the commission's authority to undertake a civil recovery action pursuant to the remedial portions of G. L. c. 268A, Sections 9 and 15, is also without merit. The plain language of G. L. c. 268B, Section 3 (i), refers to violations, not remedies, and therefore applies to all civil enforcement efforts. The commission's interpretation also fails to account for the reference in G. L. c. 268B, Section 3 (i), authorizing enforcement by the commission for violations of G. L. c. 268B.

Although "the principal source of insight into the legislative purpose" is the language of the statute, Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977), the history of G. L. c. 268A,

Page 333

Section 23, also supports our conclusion. The "Code of Ethics," as what is now Section 23 was called before the enactment of G. L. c. 268A, was conceived as a set of general guidelines for standards of conduct, and not standards to be specifically enforced by penal sanction, as were other sections of G. L. c. 268A. Final Report of the Special Comm'n on Code of Ethics, 1962 House Doc. No. 3650, at 17. [Note 9] See St. 1962, c. 779, Section 1. Section 23, therefore, was not intended as a set of specific provisions punishable by fine, but rather, "[i]t performs a particularly useful role in outlining the principles of the other [more concrete] provisions." Buss, The Massachusetts Conflict-of-Interest Statute: An Analysis, 45 B.U.L. Rev. 299, 307 (1965).

The Legislature provided that Section 23 would be enforced through administrative action by the appropriate constitutional officer or agency head. District Attorney for the Hampden Dist. v. Grucci, 384 Mass. 525, 528-529 (1981). In 1982, the Legislature amended Section 23 to make former public employees subject to certain of its provisions. [Note 10] St. 1982, c. 612, Section 14.

Page 334

Additionally in the amendment, the portion authorizing constitutional officers and heads of agencies to take administrative action was modified by the word "also." The commission claims that the word "also" in the amended version indicates that it is an unspecified other enforcement agency for Section 23. Further, the commission argues that because neither agency heads nor constitutional officers have disciplinary authority over former employees, the use of the word "also" indicates that the Legislature intended that the commission would continue its enforcement of Section 23. Otherwise, the commission contends, the new version of Section 23 is meaningless and "[a]n intention to enact a barren and ineffective [piece of legislation] is not lightly to be imputed to the Legislature." Habeeb v. Retirement Bd. of Quincy, 389 Mass. 634, 639 (1983), quoting Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189 (1969).

"When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, to look into the other parts of the statute: otherwise the different sections of the same statute might be so construed as to be repugnant, and the intention of the legislature might be defeated. And if, upon examination, the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act." Holbrook v. Holbrook, 1 Pick. 248, 250 (1823). "[W]here two or more statutes relate to the same subject matter, they should be construed together so as to constitute an harmonious whole consistent with the legislative purpose." Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). We look, therefore, to the entire statutory scheme to determine the sense of the amendment in relation to the statute as a whole. Walker v. Board of

Page 335

Appeals of Harwich, 388 Mass. 42, 51 (1983). 2A C. Sands, Sutherland Statutory Construction Section 46.05 (4th ed. 1984).

Testing the amended Section 23 thus, we conclude that including the word "also" does not indicate that the Legislature granted the commission the power to enforce Section 23. [Note 11] Because the commission was created by the Legislature, it has "only the powers, duties and obligations expressly conferred upon it by . . . statute . . . or such as are reasonably necessary . . . [to carry out] the purpose for which it was established." Hathaway Bakeries, Inc. v. Labor Relations Comm'n, 316 Mass. 136, 141 (1944), and cases cited. As noted, G. L. c. 268B, Section 3 (i), sets forth the extent of the commission's powers and duties. See supra at 328-329. Nothing in the 1982 amendment changes the language of Section 3 (i). We cannot ignore the plain legislative language limiting the civil enforcement powers of the commission to G. L. c. 268A, Sections 9 and 15, and granting constitutional officers and agency heads the power and duty to enforce G. L. c. 268A, Section 23, administratively. The Legislature has spoken clearly; the commission is not authorized to enforce G. L. c. 268A, Section 23, by the terms of G. L. c. 268B. [Note 12]

Judgment affirmed.