January 24, 1990

FACTS:

Page 288

You currently serve as Tax Collector of ABC, having been
appointed temporarily to that position by the Board of Selectmen
to fill a vacancy. Prior to your appointment, the Board of
Selectmen had appointed your mother as the Assistant Tax Collector.
You have recently received guidelines concerning the application
of G.L. c. 268A to you in your official dealings with your mother.
You intend to run for election to fill the remainder of the
unexpired term and wish to receive formal Commission guidance prior
to the election.


QUESTION:


Does G.L. c. 268A allow you to serve as Tax Collector in the
same department as your mother?


ANSWER:


Yes, subject to several conditions.


DISCUSSION:

Section 19


As Tax Collector, you are considered a municipal employee for
the purposes of G.L. c. 268A. Section 19 of G.L. c. 268A prohibits
a municipal employee from officially participating[1] in any
decision, contract, controversy or other particular matter[2] in
which the employee's mother has a financial interest. By way of
example, you must abstain from participating, either by
recommending or approving, any personnel matter, evaluation,
promotion, step raise, salary determination or other term or
condition of employment in which your mother has a financial
interest. See, In the Matter of Frederick Cronin, 1986 SEC 269. The
prohibition also applies to your day-to-day supervision of your
mother. See, {Commission Advisory No. 11}, Nepotism. The fact
that the Board of Selectmen is authorized to sign and approve the
payroll and negotiate contracts does not relieve you of obligations
under s.19 because participation includes recommending as well as
making a final decision. See, In the Matter of Peter Cassidy, 1988
SEC 371. You must therefore abstain from involvement, whether by
recommendation or decision, in any matter in which your mother has
a financial interest.

An exemption is available to you under s.19(b)(1) by which you
may participate in matters affecting your mother's financial
interest if you receive written permission from your appointing
official, the Board of Selectmen, pursuant to the conditions
spelled out in s.19(b)(1).[3] Unless and until you receive such an
exemption, however, you must continue to abstain from participating
as Tax Collector in any matter affecting your mother's financial
interest. This exemption would not be available to you once you
were elected, however, since you will no longer have an appointing
official. District Attorney for the Hampden District v. Grucci, 384
Mass. 525 (1981). Assuming you are elected, the Board of Selectmen
may wish to consider steps to minimize any risk to your violating
s.19. For example, the Selectmen could either delegate to another
official the day-to-day supervision of your mother or could arrange
a transfer of your mother to another municipal department. We are
available to assist you and the Board of Selectmen in reviewing
these options, if and when you are elected to that position.

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

[1] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise.

[2] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, 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.

[3] (b) Under G.L. c 268A, s.19(b) it shall not be a violation
of this section

(l) if the municipal employee first advises the official
responsible for appointment to his position of the nature and
circumstances of the particular matter and makes full disclosure
of such financial interest, and receives in advance a written
determination made by that official that the interest is not so
substantial as to be deemed likely to affect the integrity of the
services which the municipality may expect from the employee.

End Of Decision