The information provided is educational in nature and should not be considered legal advice. Persons with questions about a specific situation should contact the Ethics Commission at (617) 371-9500 for free confidential advice.
Massachusetts General Laws c. 268A, the state's conflict of interest law, governs the conduct of public officials. In general, § 17 of the conflict law prohibits a public official from acting as an agent for anyone other than the municipality for which he or she serves in connection with any matter in which the municipality is a party or has a direct and substantial interest even if the public official abstains from taking any official action on this matter. It also prohibits a public official from requesting or receiving compensation in relation to any particular matter in which the same municipality is a party or has a direct and substantial interest. These provisions are intended to prevent divided loyalties.
Can a volunteer board member appear before the board on which he or she serves on behalf of private clients?
A public official, even one who serves as an unpaid volunteer on an appointed board is prohibited from acting as an agent for those clients for whom he or she provides consulting services before the board on which he or she serves. For example, a Historic Commission member who is an architect may not represent a client before the Historic Commission.
A public official always may, however, represent him or herself before his or her own board. For example, a conservation commissioner may seek an order of conditions in order to expand her home. She may not, however participate as a conservation commissioner in any determination or decision regarding her property.
Can a volunteer board member appear before town boards other than the one on which he serves?
If the board member is designated a "special municipal employee," he may act as an agent before municipal boards other than his own, provided that he has not officially participated in the matter and the matter is not now (and was not within the past year) within his official responsibility. He never may represent any third party before his own board or any board that falls under the jurisdiction of his own board. For example, a school committee member who is designated as a "special municipal employee" may appear on behalf of a client of his private law practice before the board of health. He may not appear, however, before the school committee or the school department regarding a matter involving a client.
A board member whose position has not been designated "special" may not appear before any town boards.
What is a "special municipal employee"?
Several specific municipal positions are automatically designated as "special municipal employees" under the law. In other instances, the status of "special municipal employee" can be assigned to certain municipal positions by a vote of the board of selectmen, board of aldermen, town council or city council. Your position is eligible to be designated as a "special municipal employee" provided that:
- you are not paid; or
- you hold a part-time position which allows you to work at another job during normal working hours; or
- you were not paid for more than 800 working hours (approximately 20 weeks full-time or 15 hours or less per week part-time) during the preceding 365 days.
It is the municipal position that is designated as having "special municipal employee" status, not the individual and all employees holding the same office or position must have the same classification as "special municipal employees."
What activities are considered "acting as agent"?
An agent is anyone who represents another person or organization in dealings with the municipality. Almost any instance where you are acting on behalf of someone else can be considered "acting as an agent." For example, contacting or communicating with the municipality on another person's or group's behalf, acting as a liaison with the municipality on another person's or group's behalf; providing documents to the municipality on another person's or group's behalf: or serving as a spokesperson before the municipality on another person's or group's behalf have been considered "acting as an agent."
When does a municipality have a direct and substantial interest in a matter?
A municipality has a direct and substantial interest in any matter pending before, under the official jurisdiction of, or involving action by a municipal agency, board, commission, authority or other body; in any effort to change municipal regulations, policies or procedures; any contract, court case or other legal matter in which the city or town is a party, or any ruling or other action by a federal, county, regional or state agency involving matters which are subject to regulation by the municipality.
Are there any exceptions to these rules for public officials who are full-time employees and thus cannot be "special municipal employees"?
A municipal employee may apply for a building, electrical, wiring, plumbing, gas fitting or septic system permit on behalf of anyone and receive compensation in relation to that permit unless the municipal employee is employed by the permit granting department or an agency that regulates the activities of the permit granting department. For example a full-time firefighter could apply for an electrical permit from the building department but could not apply for an oil tank removal permit from the fire department.
There may be other exceptions that would apply to a particular situation. Please contact the Ethics Commission for advice at (617) 371-9500.