Advisory 96-01

The Official Website of the Massachusetts State Ethics Commission

Members of municipal boards^1/ are generally prohibited from being appointed by their own board to any position under the direct supervision of that board. In addition, board members must wait 30 days after resigning their board membership before they are eligible to be appointed to such a position. These restrictions are set out in §21A of G.L.c. 268A, the conflict of interest law, and may be waived only by a vote of the annual town meeting.

Thus, unless there has been prior town meeting approval, members of a local board may not be appointed by that board to any position -- whether compensated or uncompensated -- under the supervision of that board until 30 days after they leave their board position.

These restrictions are designed to prevent people serving in municipal government from having the "inside track" on other positions and employment opportunities. As the Supreme Judicial Court has pointed out in dealing with the principle of incompatibility of offices, the "personal and selfish interest [of a board member under consideration for an appointed position] would prevent him from having as a member of the board...an eye single to the interest of the public." Attorney General v. Henry, 262 Mass. 127, 132 (1928).

Approval of an exemption to §21A must be made at an "annual" town meeting, not at a "special" town meeting. The vote should specifically name the individual and positions to be exempted. The vote should be repeated each time the individual is reappointed to the subordinate position. See EC-COI-93-19 (assistant to the board of selectmen, who is subject to annual reappointment, must, if she is elected to be a member of the board, seek town meeting approval each year she holds both positions).

Note that, for city officials, §21A’s prohibition is absolute: there is no exemption or approval mechanism available for city governments.

Positions on board subcommittees and positions held ex officio by virtue of the original board membership are considered to be part of the original board membership, and therefore do not trigger the restrictions of §21A. Generally, a board member may serve on a board subcommittee, so long as his membership on the subcommittee would terminate if he were to resign from the primary board. Similarly, a board member may serve ex officio on another municipal committee that reports to his board, as long as the committee membership would automatically terminate should he resign from the original board.

Also, §21A is not triggered by appointments to positions that are not under the direct supervision of the board. For instance, the 30-day waiting period would not apply to a former school committee member who is under consideration for a position in which he would report to the school superintendent. Note, however, that actions which are allowable under §21A are still subject to the restrictions of other sections of the conflict law.

Finally, the restrictions of §21A do not apply to a person who is first employed by a board or commission and is later elected to that same board. However, any subsequent appointment or reappointment of the employee/board member to the subordinate position would trigger this section. See EC-COI-93-19.

Even if an exemption to §21A is granted by vote of an annual town meeting, the board member must still comply with all other restrictions of the conflict law, including:

Section 19 generally prohibits municipal employees, including elected officials, from participating in any particular matter that affects their own financial interests. Thus, a board member who has received a §21A exemption must generally abstain from participating in the process by which he is appointed to an additional, compensated position. See EC-COI-93-19. This prohibition on participation includes not just the final, formal vote on the appointment, but also: being involved in the drafting or determination of the job description; participating in the interviews of other applicants for the position; discussing the candidates’ qualifications or making recommendations; lobbying board colleagues; approving, disapproving or delegating salary decisions and similar matters; and any other type of official action which would reasonably foreseeably affect the municipal employee’s financial interests. See EC-COI-87-25. Board members who are under consideration for an appointment by their board should generally leave the room during any action on the matter. See Graham v. McGrail, 370 Mass. 133, 138 (1976).

The restrictions of §19 would not apply in cases where the subordinate position is uncompensated, because the board member would not have a financial interest in the appointment. However, even if there is no financial interest in the position, the board member/applicant should file a public disclosure under the terms of §23(b)(3) (frequently referred to as the "appearances" section) before participating in his official capacity in any matter related to his own appointment.

Section 20 generally prohibits municipal officials from holding more than one position with the same municipality. Thus, a board member who wishes to retain his board position after being appointed to the additional position may need to obtain an exemption to §20. See Commission Advisory No. 7: Multiple Office Holding at the Local Level for more information about possible exemptions. Note that §19 generally prohibits the board member/applicant from participating (in his official capacity) in any decision whether or not to grant himself "special municipal employee" status or an exemption to §20. See EC-COI-93-19.

Unless they obtain a Town Meeting exemption to §21A, board members must wait 30 days after resigning their board positions before they are eligible to be appointed by that board to a position under the direct supervision of that board.

An additional restriction applies to certain elected officials who held a municipal position before being elected to office. Three of the exemptions to §20 -- the "selectmen’s exemption", the "town councillors’ exemption" and the "housing authority employee" exemption -- impose an additional six-month waiting period, after the officials resign their elected position, before they are eligible for appointment to any additional municipal position. This six-month waiting period applies only to elected officials who rely on one of these three §20 exemptions to continue to hold their original municipal employee position. Officials who do not require an exemption to §20, or who rely on other §20 exemptions, are not bound by this waiting period. See EC-COI-82-106; EC-COI-87-36; EC-COI-93-4.

Board members who appoint a colleague to a position for which the colleague is not eligible under §21A may themselves violate certain sections of the conflict of interest law, for instance:

Section 23(b)(2) prohibits municipal employees, including elected officials, from using their official position to secure for themselves "or others unwarranted privileges or exemptions which are of substantial value^2/... ." Appointing someone to a position for which he is not eligible would be an unwarranted privilege or exemption, and would therefore likely violate §23(b)(2).

Section 23(b)(3) generally prohibits municipal employees, including elected officials, from acting in a manner which would cause a reasonable person to believe that any person can unduly enjoy their favor in the performance of their official duties. Given the clear intent of §21A, appointing a colleague to a position for which he is not eligible cannot help but give the impression that the person being appointed is unduly enjoying the favor of his fellow board members, and would therefore likely violate §23(b)(3). Note that §23(b)(3) includes a public disclosure exemption mechanism: a public employee may take actions which would otherwise violate §23(b)(3) if he first makes an appropriate public disclosure of all the relevant facts. See Commission Fact Sheet No. 1: Avoiding "Appearances" of Conflicts of Interests for more information about this exemption.

G.L. c. 41, §4A may also apply to situations where a town or district board appoints one of its members to an office of that town or district. You should contact your local town counsel regarding the applicability of this statute.

^2/ Anything worth $50 or more is "of substantial value". See Commonwealth v. Famigletti, 4 Mass.App.584(1976);EC-COI-93-14.

Members of municipal commission or board; restrictions on appointments to certain positions.

Section 21A. 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. No former member of such commission or board shall be so eligible until the expiration of thirty days from the termination of his service as a member 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.