August 17, 1987
The ABC Fire District (District) is governed by a five-member elected Prudential Committee (Committee). The Committee is the appointing authority for the fire chief, who is the direct supervisor of each full-time and call firefighter. Three Committee members have immediate family members who are District firefighters.
The Committee signs and approves the treasury warrant authorizing the payment of compensation to District firefighters. The authorization process requires the chief to review and approve the accuracy of the payroll and to verify the hours in which the firefighters performed services during the payroll period.
Is the action of a member of the Prudential Committee signing the treasury warrant for the payroll of the firefighters personal and substantial participation within the meaning of s.1(j), of the conflict law?
No, unless the payroll item which is signed is in dispute.
The definition of "participate" requires that the participation be personal and substantial, s.1(j), and excludes acts which are ministerial or insubstantial. In the Matter of John Hickey, 1983 SEC 158,159. In its recent Advisory on Nepotism, the Commission indicated that approval or authorization of salary increases for an immediate family member would constitute personal and substantial participation in a matter in which the family member had a financial interest. The Commission left open, however, the question of whether the signing of a payroll warrant would, by itself constitute personal and substantial participation. The Commission now concludes that such a signing does not amount to personal and substantial participation, absent a dispute over the payroll item.
The Federal Office of Governmental Ethics has delineated "participate personally and substantially" through clarifying regulations as that term is used in setting restrictions on former federal government employees. 5 C.F.R. s.7.5(d). The regulation states:
substantiality means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than an official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue...
In this case the signing of the warrant is peripheral to the determination of the correctness of the hours worked. It is the fire chief and not the Committee who certifies the hours of each firefighter. If the hours are certified by the fire chief, the firefighter is entitled to the appropriate compensation. The signing of the warrant which authorizes the paycheck is therefore ministerial and cannot be characterized as substantial. If the number of hours certified by the fire chief became an issue or the subject of dispute, however, then the signing of the warrant by any member of the Committee could constitute substantial participation. In such a case abstention will generally be required if the dispute concerns an immediate family member. See G.L. c. 268A, s.19.
End Of Decision