January 11, 1989

FACTS:



Page 225

You are a full-time employee for the Town (Town). You have also
been elected to serve as one of the three commissioners of a Water
District (District). The District was created as a body corporate
and comprises an area within the Town, although not coextensive
with the boundaries of the Town. The District was created to
supply water for public safety and domestic purposes and to
establish a water distribution system within the District area. The
District is managed by a three-member elected board of
commissioners who are authorized to act on behalf of the District.
Following the recent approval by the voters of the District and the
Town Meeting, the District has assumed from the Town the assets,
liabilities, contract rights and leases which previously belonged
to the Town Water Department. In turn, the District has reimbursed
the Town for costs expended for the planning and development of a
water supply and distribution system and for the creation of the
District.


QUESTION:


Does G.L. c. 268A permit you to serve both as a Town employee
and as an elected commissioner of the District?


ANSWER:


Yes, subject to the limitations described below.


DISCUSSION:


As a member of the District, you are a municipal employee for
the purposes of G.L. c. 268A. In the Matter of Norman McMann, 1988
SEC 379 (Decision and Order, October 24, 1988); EC-COI-87-2; 82-
25
. Three sections of G.L. c. 268A are relevant to your question.

The first, G.L. c. 268A, s.19, places certain abstention
requirements on you as a District member. Specifically, s.19
requires your abstention from participation as a District member
in any "particular matter"[1] which affects the financial interest
of a business organization which employs you. Because the Town is
a municipal corporation and therefore a business organization for
the purposes of G.L. c. 268A, see, EC-COI-80-111; Attorney General
Conflict Opinion No. 613, you must abstain from participation in
any contract, decision, controversy or other particular matter in
which the Town has a financial interest.[2] Because the Town has
a direct financial interest in any agreement implementing the
transfer of the water distribution system to the District, you must
comply with the abstention requirements of s.19 in connection with
any such agreements. You must also abstain from participation as
a District member in matters in which the Town has a foreseeable
financial interest. EC-COI-84-96.

The absjention requirements of s.19 will apply to all acts of
participation including your discussion of the merits of a
particular matter with other District members, as well as your
voting on the matters. Graham v. McGrail, 370 Mass. 133 (1976).
While s.19(b)(1) provides an exemption procedure under which
appointed municipal employees may receive permission from their
appointing official to participate in a matter, the exemption is
not available to you as an elected District official. District
Attorney v. Grucci
, 354 Mass. (1981).

Aside from s.19, you are also required to observe the
limitations of G.L. c. 268A, s.23(b)(2). Under this section, you
are prohibited from using your official District position to secure
unwarranted privileges or exemptions of substantial value to the
Town. Conversely, you may not use your official Town position to
secure unwarranted privileges or exemptions of substantial value
to the District. In particular, you must keep your Town work
schedule separate irom your District work schedule.

The law also places certain restrictions on your activities as
Town employee. Under G.L. c. 268A, s.17, you may not be paid by the
Town or act as the Town's agent in connection with any matter in
which the District is a party or has a direct and substantial
interest. To the extent that the implementation of the water system
transfer to the District may require official dealings between your
Town Office and the District, you may not perform such duties as
a Town employees.[3]

---------------

[1] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claiin, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s.1(k).

Page 226


[2] The abstention requirement applies because of the Town's
financial interest, rather than because of any particular financial
interest which may apply to you or your immediate family.

[3] G.L.c. 268A, s.20 prohibits you, as a District member, from
having a financial interest in an employment contract made by the
same District. Based on the information you have provided, however,
we conclude that your Town employment contract not with the
District but, rather, is with a different municipal agency. In
particular, we find that the enabling legislation created an
independently managed and financed entity to provide water to
certain Town residents. See, EC-COI-87-2.

End Of Decision