May 18, 1987

FACTS:


The City Council is currently considering increasing the salary of Mayor, to take effect following the forthcoming municipal elections. The Mayor has indicated that he may seek re-election; certain City Councillors have also indicated that they may seek election to the mayoral position. The deadline for filing nomination papers for the mayoral election is in August. A preliminary election will be held in September and the two candidates receiving the most votes will be on the ballot in November.


QUESTION:


Does G.L. c. 268A permit any city councillor, who is either a potential candidate for mayor or the immediate family member of a potential candidate, to vote on a proposed pay increase for the mayor's position which would take effect after an election?


ANSWER:


Yes.

DISCUSSION:


City councillors are municipal employees within the meaning of the conflict of interest law and, therefore, are subject to its provisions. G.L. c. 268A, s.1(g). The conflict of interest law prohibits a municipal employee, such as a city councillor, from participating in a particular matter in which the employee, or a member of his or her immediate family [1] has a financial interest. G.L. c. 268A, s.19(a). A determination to increase the mayor's


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salary is a particular matter, G.L. c. 268A, s.1(k), and any discussion or vote on this matter would constitute participation. See, Graham v. McGrail, 370 Mass. 133 (1976); EC-COI-82-10. However, the disqualifying financial interest in a salary increase for the Mayor's position must be "direct and immediate, or at least reasonably foreseeable." EC-COI-84-123; see also, 84-96 and 84-98.

In this case, the Mayor's election is in November, and the deadline for taking out and filing nomination papers is three months away. The political success of any potential candidate for political office is, at best, speculative when that individual competes among a pool of candidates and not all candidates have officially announced their candidacy by filing nomination papers. Any financial interest which a candidate may have in a salary increase for the Mayor's position, which takes effect after the election, is not sufficiently identifiable at this point. [2]

For these reasons, City Councillors, who themselves are considering running for election (whether or not they have announced their candidacy), or who have immediate family members who are candidates, may participate in the matter of a salary increase for the Mayor's position provided that the vote is taken now, before the nomination deadline, and the increase is effective after the mayoral election.

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[1] Immediate family includes the municipal employee and his or her spouse, and both of their parents, children, brothers and sisters. G.L.c. 268A, s.1(e).

[2] If a vote on a salary increase were taken nearer to the election date or, at a minimum, after the nomination deadline, or if there were substantially different facts in this case (e.g. only one candidate were running for election), there might be a sufficiently identifiable financial interest in the pay raise to disqualily one of the city councillors from voting on it. The Commission leaves these questions open. In this case, however, the intervening period of time between now, when the vote will be taken, and the final election, preliminary election and filing deadline renders any financial interest ofthe city councillors, or their family members too remote and attenuated to disqualify participation in the vote.

End Of Decision