Questions have been raised as to:
* whether members and employees of agencies that operate independently of city or town governments, whether within the boundaries of a single municipality or as regional agencies, are also covered by the law,
* whether such members and employees may be made "special municipal employees," and
* if so, by whom.
Typical examples of municipal agencies that operate independently of city and town governments are local housing authorities, local water and fire districts and regional school districts. The above questions take on added importance because often members and employees of such authorities or districts have contracts with or hold other appointive positions in the same authority or district. Moreover, members or employees of authorities and districts sometimes also hold positions in other city or town agencies. The propriety of their doing so will turn on whether they are covered by the conflict law and, if so, whether they may be considered "specials."
I. MUNICIPAL AGENCIES THAT OPERATE INDEPENDENTLY OF CITY AND TOWN GOVERNMENTS
"Municipal employee" is defined as anyone "performing services for or holding an office, position, employment or membership in a municipal agency." See G.L. c. 268A, § 1(g). "Municipal agency," in turn, is defined as "any department or office of a city or town government and any council, division board, bureau, commission, institution, tribunal or other instrumentality thereof or thereunder." See § 1(f). Given these broad definitions, local housing authorities and local water and fire districts are municipal agencies for purposes of the conflict law, and their members and employees are municipal employees. They perform governmental functions at the municipal level.
The Legislature has explicitly provided that certain agencies that operate independently of city and town governments will be considered municipal agencies for purposes of the conflict of interest law. See, e.g., G.L. c. 121B, § 7 (housing authority is a municipal agency for purposes of the conflict of interest law).
The Ethics Commission has also considered the application of the conflict of interest law to regional entities and their employees. The most common example of a regional entity is a regional school district. In 1992, the Appeals Court affirmed a Commission decision finding that members of a regional school committee are municipal employees for purposes of the conflict of interest law. In doing so, the Court concluded that a regional school committee is an instrumentality of each of the member municipalities. McMann v. State Ethics Commission, 32 Mass. App. Ct. 421, 428 (1992). In other words, for purposes of the conflict of interest law, the Commission will not consider regional districts to be independent of their member municipalities. Therefore, the employees of the regional entity will be municipal employees of each of the municipalities that make up the regional district.
II. SPECIAL MUNICIPAL EMPLOYEES
May members and employees of these authorities and districts be designated as "special municipal employees"? Whether a member or employee of an authority or district is classified as a "special" will affect his or her eligibility to hold, and be compensated for, some other position within the supervision of that authority or district or to otherwise contract with the authority or district (or any of the cities and towns that comprise the district).
Section 1(n) of G.L. c. 268A provides that municipal employees are classified as "specials" by the Board of Selectmen or City Council (or Board of Alderman if there is no City Council) in that municipality. Thus, the law gives the appropriate Board of Selectmen or City Council the designating responsibility and makes no distinction as to which agencies might be involved. Simply put, the Selectmen or Council has this authority, regardless of the degree to which the Board or Council supervises the work of the agency. Accordingly, members and employees of an authority or district may be designated as "specials" just as any other municipal employees. In making its decision, the Board of Selectmen or City Council will use the guidelines set out in the statute. That is:
1. the person must either:
a. receive no compensation,
b. work less than 800 hours a year, or
c. occupy a position which "permits personal or private employment during normal working hours."
2. the Board or Council must be consistent, i.e., treat people who hold equivalent positions in the same way.
The Legislature has explicitly answered the question of special municipal employee status with regard to members and employees of local housing authorites. The statute establishing such authorities states that "each member of a [a housing and redevelopment authority] . . .shall be considered a special municipal employee." Additionally, any person who performs professional services on a part-time, intermittent or consultant basis (such as architect, attorney, engineer, planner, etc.) for a housing or redevelopment authority shall also be a special municipal employee. See G.L. c. 121B, § 7. In so doing, the Legislature was careful to point out that the Board of Selectmen, Board of Alderman or City Council was not precluded from making other employees of such authorities "specials."
Similarly, with regard to local fire districts, the Legislature has determined that part-time fire fighters and any person who performs professional services on a part-time, intermittent or consultant basis shall be considered a special municipal employee for purposes of the conflict of interest law. See G.L. c. 48, § 90. As for those employees who are not specified as special municipal employees by statute, the guidelines set out in the definition of "special municipal employee" will be applicable.
With regard to employees of regional entities, the Commission has decided that an employment position or a board position within a regional entity may be designated as a special municipal employee position if so classified by vote of the Board of Selectmen or City Council of all of the member municipalities.
A district or authority employee, whose position is not a "special municipal employee" position, would violate § 20 of G.L. c. 268A if that individual held another position with that same authority or district or any of the municipalities that comprise a district. (1) However, as a special, an employee or member will be eligible for an exemption from § 20 (2) as long as:
1. he or she files with their city or town clerk a statement making full disclosure of the other employment relationship; and
2. the City Council or Board of Selectmen give its approval to having that position.
Here again, the Board of Selectmen or City Council has a crucial role to play. And, here again, it does not matter whether the Board or Council otherwise participates in any aspect of the authority or district. As for regional entities, the above exemption will require approval from the Board of Selectmen or City Council of all of the member cities or towns.
In summary, we provide you with the following examples:
If you are a member or employee of a local housing authority:
1. you are automatically a "special municipal employee" if you are a member, or if you are providing professional services on a part-time, intermittent or consultant basis; otherwise you will not be considered a special unless the City Council or Board of Selectmen designates your position as such; and
2. as a special, you may hold another position with the authority provided your City Council or Board of Selectmen approves, and you file the required disclosure statement with your City or Town Clerk.
If you are a member or employee of a local fire district:
1. you will be considered a special employee if you are a part-time firefighter or if you provide professional services on a part-time, intermittent or consultant basis; and
2. if you are a special, you may hold another position with the district provided:
a. you file the required disclosure statement with the district clerk, and
b. the district prudential committee approves. (3)
If you are a member or employee of a regional school district:
1. you are not a "special municipal employee" unless the City Council or Board of Selectmen of all of the member municipalities designates your position as such; and
2. if so designated, you may hold another position or contract with the district provided:
a. you file the required disclosure with the school district clerk, and
b. the City Council or Board of Selectmen of all of the member municipalities approves. (4)
This advisory does not attempt to explain all the provisions of the conflict law applicable to "special municipal employees." You are advised to call the State Ethics Commission's Legal Division if you seek to contract with or be employed by a municipal agency in addition to your position with an authority or district.
DATE AUTHORIZED: May 29, 1984
1. If an employee or board member holds a position in another municipal agency of any constituent city or town, the exemption provided in § 20(c) may be applicable. This requires only that a special municipal employee make a written disclosure to the municipal and district clerk.
2. Section 20 prohibits a municipal employee from having a financial interest in a contract with his or her city or town. Other employment contracts are included within this prohibition. The § 20(d) exemption outlined above would also be available to members and employees who are specials and who have other kinds of contracts with their authority or district (for example, contracts to provide services, to sell equipment, etc.).
3. There are additional restrictions on district boards or authorities concerning their ability to appoint a member to a position under the supervision of that board or commission. See G.L. c.41, § 4A; c. 268A, § 21A.
4. If you hold a position with an agency of one of the constituent cities or towns, this approval may not be necessary.