The Official Website of the Massachusetts State Ethics Commission
COMMISSION ADVISORY NO. 05-05
THE RULE OF NECESSITY
If an elected member of a town or city board has a conflict of interest with respect to a matter before the board that involves his own financial interest or that of a partner, an immediate family member or a business organization with which the board member has certain affiliations, that member will be disqualified from acting as a board member on that matter.1/ In some cases, especially when more than one member is disqualified, a board cannot act because it does not have a quorum or some other number of members required to take a valid affirmative vote. (If the number for a quorum is not set by law, a quorum is generally a majority of the board members.) In these circumstances, the board may be able to use what is called the Rule of Necessity to permit the participation of the disqualified member(s) in order to allow the board to act.
The Rule of Necessity is not a law written and passed by the Legislature. Rather, the Rule of Necessity was developed by judges who applied it in their court decisions. The Rule of Necessity may only be used as a last resort. We strongly suggest that the rule be used only upon prior written advice from town or city counsel since improper use of the rule could result in a violation of the conflict of interest law.
The Rule of Necessity works in the following way:
1. The Rule of Necessity may only be used when an elected board is legally required to act on a matter and it lacks enough members to take valid official action solely due to board members being disqualified by conflicts of interest from participating in the matter.
Example: A five member elected board has a meeting and all members are present. Three of the five members have conflicts in a matter before the board. Three members are the quorum necessary for a decision. The two members without conflicts do not make a quorum. The board cannot act. The Rule of Necessity will permit all members to participate in that matter.
Example: A five member elected board has a meeting and four members are present (one member is sick at home). Two of the four present members have conflicts. A quorum is three. The one member who is sick at home does not have a conflict. The Rule of Necessity may not be used because there is a quorum of the board which is able to act. The absence of one member does not permit use of the Rule of Necessity.
Example: A five member elected board has a meeting and all members are present. One member has a conflict and is disqualified. The vote is a two-to-two tie. The Rule of Necessity may not be used to break the tie. In general, a tie vote defeats the issue being voted on. (Stated differently, a tie vote will maintain the status quo.)
Example: A five member elected board has a meeting and all members are present. A quorum is three. However, one agenda item, on which board action is legally required, needs four votes, rather than the usual simple majority, for an affirmative decision. Two of the board members have conflicts. Although a quorum is available, the required four votes needed for this particular matter cannot be obtained without the participation of one or both of the members who have conflicts. The Rule of Necessity may be invoked and all five of the board members could participate.
If one or more members of an elected board have ’appearances’ of conflicts of interest that can be dispelled by making a written disclosure, the Rule of Necessity may not be invoked. Section 23(b)(3) of the conflict law prohibits a public official from acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that the public official is likely to act or fail to act as a result of kinship, rank or position. It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his or her appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.
Example: One member of a three member elected board has a daughter who is a candidate for a police officer position. A second member has a niece who is a candidate for the same position. This member can make a disclosure to dispel the appearance of a conflict of interest and may then participate in the matter. Thus, the three member board has a quorum and is able to act and the Rule of Necessity may not be invoked.
2. Before invoking the Rule of Necessity, every effort must be made to find another board or other authority in the municipality with the legal power to act in place of the board that could not obtain a quorum due to conflicts of interest. (Municipal counsel should be consulted to identify another municipal board or authority to act.)
3. While the absence of one or more board members is generally not sufficient cause to invoke the Rule of Necessity, when a board is legally required to take action by a certain time and is unable to do so because of the lack of a quorum, the Rule of Necessity may be invoked.
Example: A statute requires selectmen to approve payroll warrants on a weekly basis. One selectman of a three member board is absent and the board cannot otherwise obtain a quorum due to the disqualification of one selectman whose immediate family member works for the town. The Rule of Necessity may be invoked.
4. The Rule of Necessity should be invoked by one or more of the otherwise disqualified members, upon advice from town or city counsel or the State Ethics Commission.
5. If it is proper for the Rule of Necessity to be used, it should be clearly indicated in the minutes of the meeting that as a result of disqualification of members due to conflicts of interests, the board lacked a sufficient number of members necessary to take a valid vote and, as a last resort, that all those disqualified may now participate under the Rule of Necessity. Each disqualified member who wishes to participate under the Rule of Necessity must first disclose publicly the facts that created the conflict.
Example: Two members of a three member elected board have conflicts of interest that prohibit them from participating in a matter involving property owned by a private school for which they serve as trustees. No other board exists which can act on the matter before the board. One of the board members with a conflict should invoke the Rule of Necessity and direct that it be included in the minutes. Both of the board members who had been prohibited from participating may then do so. Prior to such participation, however, they must disclose the fact that they serve as trustees and may then participate in the matter.
It should be noted that invoking the Rule of Necessity does not require all previously disqualified members to participate; it merely permits their participation.
In some instances, where a single elected official is the only person who, by law, can take a specific action, and that elected official has a conflict of interest, the rule of necessity may be invoked for the limited purpose of designating another person to carry out the action.
Example: A mayor, whose spouse is a firefighter, is the sole collective bargaining authority for the city. She may invoke the rule of necessity to designate an alternate to serve as the city’s collective bargaining representative with the firefighter’s union.
For more information about the state conflict of interest and financial disclosure laws (G.L. c. 268A & c. 268B), including the subjects discussed in this Advisory, please contact:
State Ethics Commission (www.mass.gov/ethics)
One Ashburton Place, Room 619
Boston, MA 02108
(617)371-9500
ISSUED: March 1987
REVISED: January 1991
REVISED: February 1993
REVISED: December 2005 [as an Advisory]
FOOTNOTE
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