This petition for mandamus seeks to compel the board of health (board) “to appoint and certify . . . [The] petitioner to the office and duties of Plumbing Inspector for the Town of Clinton.” A judge of the Superior Court ordered judgment dismissing the petition. The petitioner appealed from the judgment. The trial judge made no findings but the evidence is reported.
We state facts which the judge could have found. On July 12, 1963, the petitioner, a member of the board, took the civil service qualifying examination for the position of plumbing inspector. He was notified, on January 13, 1964, that he had passed, and was placed number one on the civil service fist because of his status as a disabled veteran. At the February meeting of the board, the petitioner “made a motion that action be taken on the appointment of a plumbing inspector.” The motion was tabled in order to allow the other members of the board additional time to study the candidates on the civil service list.
Following this meeting the other members of the board, one Peter O’Malley, and one Harold Alzapiedi, the chairman, in accordance with G. L. c. 268A, § 22, requested the town counsel, Mr. Edward T. Mitchell, to rule “on the prospective appointment of . . . [The petitioner] as Plumbing Inspector, and the possibility of such appointment constituting a conflict of interest.” In a letter dated February 25, 1964, Mr. Mitchell indicated that both the petitioner’s position as a member of the board and his ownership of a retail plumbing supply business constituted conflicts of interest which were direct impediments to the petitioner’s appointment.
The petitioner, in an effort to evade the conflicts described in the town counsel’s letter, purportedly sold his plumbing supply business to his brother; Stephen J. Starr, for the nominal sum of $1. At the board meeting held on March 4,
The minutes of the board meeting do not show that the petitioner submitted a formal resignation to the board until receipt of the letter dated June 9, 1964.
1. The petitioner contends that G. L. c. 41, § 4A,
1
is not a bar to his appointment as plumbing inspector because he “had resigned and could not participate in his own appointment.” However, he did not officially tender his resignation to the board until June 9, 1964. He had previously offered to resign on the condition that he be appointed to the plumbing inspector’s position. The impetus for his ultimate resignation stemmed from a meeting on June 8, 1964, with W. Henry Finnegan, Director of Civil Service for the Commonwealth. At that meeting Finnegan made it clear that the petitioner’s resignation from the board and
2. The petitioner also claims that his plumbing supply business does not present a conflict since “[t]he appointed job deals with inspecting plumbers’ work . . . [and the] supply business deals with the
public
on retail sales.” As we stated in the case of
Selectmen of Avon
v.
Linder,
3. The petitioner argues that the question of conflict of interest is “moot since he has sold the business and submitted his [b]ill of [s]ale with the resignation.” We do not agree. On July 9, 1964, the business was purportedly sold to one Jack D. Pelley, the petitioner’s brother-in-law, for $3,300; the deposit was made by a cashier’s check for $1,300 and the balance by a promissory note from Pelley to the petitioner for $2,000. Pelley, a linotype operator, claims that at the time of the supposed purchase, he borrowed $800 cash from his father-in-law, the petitioner’s father, to
The petitioner claims that prior to the sale to Eelley he sold the business to his brother, but that his brother became a “little skeptical” about the petitioner’s securing the appointment of plumbing inspector, and that some three .or four weeks after the purported sale the petitioner “reacquired” the business. The petitioner also claims that after “reacquiring” the business he attempted to sell it to other prospective customers. However, he was unable to recall any of their names. From the foregoing the judge could have concluded that the petitioner did not make a bona fide sale and did not properly divest himself of his plumbing supply business. ......— - ......
4. We do not agree with the argument of the petitioner that
Younie
v.
Director of Div. of Unemployment Compensation,
There was ample ■ justification for the dismissal of the petition. Since the judge has made no findings of fact, the judgment dismissing the petition imports a finding of every fact essential to support it.
Murtagh
v.
Registrars of Voters of Peabody,
Judgment affirmed.
Notes
As amended through St. 1951, c. 6. The relevant portion of G. L. c. 41, § 4A, reads as follows: “Except as otherwise expressly provided, a town board may, if authorized by vote of the town, appoint any member thereof to another town office or position for the term provided by law, if any, otherwise for a term not exceeding one year.” " .
G. L. c. 268A. Section 21A of this chapter (added by St. 1967, c. 887, § 2), although enacted subsequent to the events here relevant, supports the position taken by the town counsel and the board. The section reads as follows: “Except as hereinafter provided, no member of a municipal commission or board shall be eligible for appointment or election by the members of such commission or board to any office or position under the supervision of such commission or board. . . . The provisions of this section shall not apply to a member of a town commission or board, if such appointment or election has first been approved at an annual town meeting of the town.”
The legislative purpose behind the enactment of this provision seems to confirm the purpose which was contained in G. L. c. 41, § 4A,
See, generally, G. L.' c. 268A.
As amended through St. 1964,. e. 627, § 5. Section 23, as thus amended, reads, “The names of persons who pass .examinations for appointment to-any position classified under the civil service shall be placed upon the eligible lists in the following order: — (Í) Disabled veterans as defined in. section twenty-three A, in the order of their respective standing; (2) veterans in