November 14, 1990

FACTS:


Page 289

You are the Executive Director of the Martha's Vineyard Land
Bank Commission (Commission) and you ask whether the Commission is
subject to G.L. c. 268A, and if so, how c. 268A applies to Land
Bank Commissioners and Town Advisory Board members. The Land Bank
was established by Chapter 736 of the Acts of 1985 "for the purpose
of acquiring and holding and managing land and interest in the
land." s.2. According to the enabling legislation, the Land Bank
is a public instrumentality and the Land Bank's exercise of its
statutory powers is deemed to be "the performance of an essential
governmental function."

The Land Bank is administered by a seven member Commission
composed of a member of each of the towns on Martha's Vineyard and
the Secretary of Environmental Affairs (EOEA) or his designee. Each
town elects one individual to the position of Land Bank
Commissioner and no business may be conducted by the Commission
unless a majority of the town Commissioners are present. s.3.

The Commission is assisted in administering the Land Bank by
town advisory boards which have been established in each town of
Martha's Vineyard. The town's conservation commission, planning
board, board of assessors, board of health, park and recreation
commission, board of selectmen and water commission each appoint
a representative to the town's advisory board. s.1. The local
boards may appoint a member of their own board or another citizen
to serve on the advisory board. Under c. 736, each advisory board
exercises advisory duties as well as binding veto powers over the
Commission regarding land located in said town.

The Commission has the authority to, among other things,
acquire interests in land, exercise eminent domain powers, accept
gifts of funds to further the purposes of the Land Bank, incur
debt, issue bonds and notes. If authorized by a two-thirds town
meeting vote, the Commission may pledge the full faith and credit
of each of the towns which comprise the Land Bank when incurring
debt or securing an issue of bonds or notes. s.4. Each member town
is authorized to appropriate money for the Land Bank fund and to
provide funds to repay bonds or notes. s.s.4A, 4C. Each land
acquisition by the Commission must be approved by the town advisory
board in the town where the land is located, and any disposition
of the Land Bank's interest or change in use of the land must also
be approved by the advisory board of the town in which the land is
located and by the Secretary of EOEA. s.s.4, 6.

The Commission is required to develop a management plan for
managing each of its land holdings, and must use the open space and
master plans of the individual towns and be guided by the
particular town's advisory board's recommendations for the piece
of property. s.3. The adoption of a management plan, and any change
in the plan, must be approved by a two-thirds vote of the members
of the advisory board for the town in which the land is located.
s.3.

The Commission receives most of its funding from a 2%
statutory fee on the purchase price of any real estate property
transfer in each of the member's towns.[1] s.10. Other sources of
funding include private contributions, funds appropriated or
deposited by the County Commissioners or individual town meetings,
or proceeds from the disposition of real property. The Commission's
funds are maintained in an account within the Dukes County
Treasury. The County Treasurer administers the account in
accordance with the directions of the Commission. s.8. In essence,
the Treasurer acts as the Commission's agent and does not have any
policy making role visa-vis the funds. In addition to the
Commission fund, the Treasurer maintains an individual account for
each member town. Fifty percent of the revenues collected remain
in the Commission fund and are directly administered by the Land
Bank Commission. The remaining revenues are placed in the
individual town accounts according to a proportional formula. A
majority of the town advisory board must approve the expenditure
of money in individual town accounts, but the accounts are
administered for the benefit of the Land Bank Commission, and title
to the funds remains with the Commission until such time as the
Commission dissolves. s.s.8, 4, s.15.

Upon dissolution of the Land Bank, any of its land interests
will be transferred to the town in which the land is located and
placed under the management of the local conservation commission
for continued protection. Any remaining funds will revert to the
towns to be held in trust for the management and preservation of
conservation land. s.15.
 


JURISDICTION:


A threshold issue is whether the Commission is a public or
private agency. In its determination of public status, the State
Ethics Commission will consider:

Page 290

1. the means by which the entity was created (e.g. legislative
or administrative action);

2. whether the entity performs some essentially governmental
function;

3. whether the entity receives and/or expends public funds;
and

4. the extent of control and supervision exercised by
government officials or agencies over the entity. EC-COI-89-1;
88-24; 88-19; 84-147
.

No one factor is dispositive as the Commission considers the
totality of the circumstances.

We conclude that c. 736 clearly manifests a legislative intent
to create a public entity. The Commission was created by special
legislation to perform "an essential governmental function." G.L.
c. 736, s.2. The purpose of the Commission is to fund, acquire and
manage property for conservation purposes on a regional basis,
similar to obligations conferred on local conservation commissions.
See, e.g., G.L. c. 132A, s.11 (towns may receive funds for
conservation projects). Additionally, some of the Commission's
funding is derived from public sources, such as the member towns
and the county. The municipalities, through town advisory boards,
possess veto power over most of the substantive Commission
decisions, such as acquisition, management and use of any parcel
of land located in the municipality. Accordingly, we conclude that
the Commission is a public instrumentality for purposes of G.L. c.
268A.

We turn to the question of whether the Commission is a state,
county or municipal entity. As one commentator has indicated, the
focus of the analysis is on "the level of government to be served
by the agency in question." Buss, The Massachusetts Conflict of
Interest Statute: An Analysis
, 45 B.U. L. Rev. 299, 310 (1965).
When an agency possesses attributes of more than one level of
government, the State Ethics Commission will review the
interrelation of the agency with the different government levels
in order to determine the agency's status under c. 268A.
EC-COI-89-20; 83-157. For example, in EC-COI-83-157, we concluded
that a county Mosquito Control project was an instrumentality of
a state agency because state agencies exercised control and
oversight of the project and the project's funding was derived from
annual Legislative appropriation. In EC-COI-82-25, we concluded
that a regional school district organized under G.L. c. 71 was an
independent municipal agency under the conflict of interest law
where the entity was supported solely by public funds and engaged
by the member towns to provide a service mandated by G.L. c. 71.
See, EC-COI-83-74 (local private industry councils are municipal
agencies because of decision making role they share with local
officials).

Arguably, the Land Bank Commission shares attributes of each
governmental level.[2] We conclude that the Commission is an
independent municipal entity similar to a regional school district.
EC-COI-82-25. Our decision rests on the substantial control
exercised by each town advisory board over the Commission's
affairs. The level of government with the most direct and
substantial interest in Commission decisions is the municipal
level, as each municipality is concerned with the disposition of
land within its borders. The town advisory boards are vested with
veto power over most substantive decisions that the Commission
makes. The Commission is accountable to the municipality if the
full faith and credit of the municipality is pledged. If the Land
Bank dissolves, any remaining funds or interest in land revert back
to the individual towns, and the Commission must consider each
municipality's master and open space plan as it develops a
management plan. Finally, each municipality elects a member of the
Commission to represent it. Based on these facts, we conclude that
the Commission is an independent municipal agency for purposes of
G.L. c. 268A.

Although the Commission is a separate independent regional
municipal agency for purposes of c. 268A, we consider the town
advisory boards to be local municipal agencies similar to any local
municipal board, such as the board of selectmen, board of health,
etc. Under the statutory scheme of c. 736, each town's advisory
board has the responsibility to represent the local interest by
exercising advisory, review and veto powers over Commission
decisions pertaining to land in the particular town. c. 736, s.s.3,
4, 6, 8A. Further, the town advisory board is comprised of members
of other local boards in the respective town, or their designees.
Id. s.1.
 


APPLICATION OF G.L. c. 268A TO LAND BANK COMMISSIONERS AND TOWN ADVISORY BOARD MEMBERS


For purposes of the conflict of interest law, Land Bank
Commissioners, employees and town advisory board members are
municipal employees. G.L. c. 268A, s.1(g). You have posed several
questions regarding the application of the law to these
individuals.[3]


1. May a Land Bank Commissioner or Town


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Advisory Board member participate in Land Bank decisions when the
official is an abutter to the property at issue or when the subject
property is owned by an Immediate family member?


A. Land Bank Commissioners


Generally, c. 268A, s.19 requires that a public official
abstain from participation[4] in any particular matter[5] in which
he, his immediate family[6] his business partner or the business
organization in which he is serving as an officer, director,
trustee, partner or employee has a financial interest. Decisions,
determinations and recommendations pertaining to the purchase, use
or disposition of a piece of land are particular matters for
purposes of c. 268A. The definition of participation includes
participation in the formulation of a matter for a vote, as well
as voting on the particular matter. See, Graham v. McGrail, 370
Mass. 133 (1976).

Therefore, a Commissioner must abstain from official
participation in a land decision if he or an immediate family
member has a direct or reasonably foreseeable financial interest
in the matter. EC-COI-84-96; 84-98; Public Enforcement Letters 88-1
and 91-1
. Section 19 encompasses any financial interest without
regard to the size of said interest. However, the financial
interest must be direct or reasonably foreseeable. See,
EC-COI-86-25
(city councillor required to abstain from
participating in school committee appointment as school committee
reviewing specific provisions that may affect councillor's
employer); 82-34 (financial interest in pending lawsuit that may
include money damages). Financial interests which are remote,
speculative or not sufficiently identifiable do not require
disqualification under c. 268A. EC-COI-89-19; 84-98; 87-16.

Accordingly, a Commissioner must abstain in matters regarding
an immediate family member's land because the family member has a
direct financial interest in such decisions. Similarly, the
Commissioner may not participate in matters pertaining to land
which his property abuts: In a prior conflict of interest opinion,
the State Ethics Commission found that a property abutter is
presumed to have a financial interest in abutting property because
one's property rights stand to be affected by the disposition of
said property. EC-COI-84-96. Additionally, we presume a financial
interest in matters affecting real property where a party is a
party in interest as defined by G.L. c. 40 or where a party is a
person aggrieved as defined by G.L. c. 131, s. 40. EC-COI-89-33.
Therefore, if a Commissioner falls within any of these classes of
individuals, he should also abstain from participation.

Section 19 contains an exemption for appointed officials, such
as town advisory board members, that may permit participation in
a particular matter, notwithstanding the general prohibition. This
exemption, however, is not available to elected officials, such as
Land Bank Commissioners, because elected officials do not have
appointing authorities. Therefore, Land Bank Commissioners are
required to abstain in all determinations in which they or
immediate family members have a direct or reasonably foreseeable
financial interest.


B. Town Advisory Board Members


Under s.19, town advisory board members must abstain in
matters regarding an immediate family member's land and in matters
where they are a property abutter, party in interest or person
aggrieved as defined by the applicable statute. However,
unlike Land Bank Commissioners, town advisory board members may be
eligible for a s.19 exemption that allows participation in a
particular matter, notwithstanding the general provision. Under
s.19(b)(1), a municipal employee may participate if, prior to any
participation, he advises his appointing official, in writing, of
the nature and circumstances of the particular matter and makes
full disclosure of his financial interest and receives in advance
a written determination by the appointing official that his
financial interest is not so substantial as to be deemed likely to
effect the integrity of his services to the municipality. This
determination may vary depending on the facts and circumstances of
each matter. EC-COI-86-13.[7]

When a local official seeks a s.19 exemption from the board
which appointed him to the town advisory board, additional conflict
of interest issues will arise for that official as a local board
member. Whether a local official may participate as a local board
member in the decision how to resolve his conflict of interest
problem will depend upon whether the town advisory board member is
also a local elected official, appointed official or a private
citizen. For example, if an elected selectman is also a town
advisory board member, he must make a full disclosure to the board
of selectmen regarding his family's financial interest in the
property and the selectmen, in turn, must make a written
determination whether the member may participate in the advisory
board matter affecting his or his immediate family's financial
interest. However, the selectman/advisory board member must abstain
from participation in the selectmen's determination whether he may
participate on the town advisory board because he will also have
a financial interest in the selectman's determination. Therefore,
local elected officials who

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also serve on the town advisory board should inform their
respective board of their potential conflict of interest as a town
advisory board member, and should abstain from the elected board's
determination how to solve the conflict. If the town advisory board
member is also a member of an appointed board, such as the
conservation commission, he must notify his local board in writing
and may participate in the local board's decision how to resolve
the conflict of interest if he receives the permission of the
authority which appointed him to the conservation commission. If
he does not receive this determination, he may not participate as
a conservation commissioner. If the town advisory board member does
not hold other municipal office he must make full disclosure of his
or his family's financial interest to his appointing authority and
wait for a written determination from his appointing authority.
Regardless of whether the local official may participate in the
decision how to resolve the conflict problem, he may not
participate as a town advisory board member in a matter affecting
his or his family's financial interest if the appointing authority
does not give written approval.


2. May a Land Bank Commissioner or Town Advisory Board member
sell land or collect a real estate brokerage fee from the sale of
land to the Land Bank Commission?


Generally, G.L. c. 268A, s.20 prohibits a municipal employee
from having a financial interest, directly or indirectly, in a
contract made by a municipal agency in which the municipality is
an interested party. An agreement for the purchase, sale or
disposition of a piece of property is a contract for s.20 purposes.
EC-COI-84-51.

The next issue is whether a Land Bank Commissioner or a board
member has a direct or indirect financial interest in the contract.
A Commissioner or board member who enters a contract with the
Commission has a direct financial interest in the agreement.
EC-COI-84-51; 83-111. We conclude that members who are real estate
brokers also have a financial interest in a purchase and sale
contract between a property owner and the Land Bank Commission if
they receive a brokerage fee based on the selling price.

The final question is whether the town or, in the case of
Commissioners, the Land Bank Commission, is an interested party to
the transaction. In the case of Land Bank Commissioners, the
Commission is a party to the contract and Commissioners will be
prohibited from entering a contract with the Commission or
receiving brokerage fees from sales to the Commission. In the
Matter of Norman McMann
, 1988 SEC 379 EC-COI-83-111. Similarly, a
town advisory board member is prohibited from selling land to the
Commission or accepting a brokerage fee if the property is located
in the town in which she sits on the Board. Her town will be an
interested party to the transaction because it must approve or veto
the sale. Although s.20 contains several exemptions, none are
applicable to the above situations.[8]

Our decision would be different if the town advisory board
members sold land to the Commission or accepted a brokerage fee for
the sale of property not located in the town in which the advisory
member served. Under these circumstances, the member's town would
not be an interested party and would not be required to approve the
transaction. In this situation, the advisory board member may sell
land to the Commission but a Commissioner may not because the
advisory board member would have a financial interest in a
contract, not with their local town, but with an independent
municipal agency, namely the Land Bank Commission. In comparison,
a Commissioner may not sell land to the Commission because she
would have a financial interest in a contract with her own agency,
which would violate s.20.[9]


3. May a Town Advisory Board member also perform services as
a real estate broker in the town in which he serves?


A. Town Advisory Board Members


Section 17 prohibits a municipal employee from receiving
compensation from or acting as agent for anyone other than the town
in relation to any particular matter in which the town is a party
or has a direct and substantial interest. Generally, the town is
not a party to nor has a direct and substantial interest in the
private transfer of property within its borders. Under the
circumstances you present, we do not find that the town, within the
meaning of G.L. c. 268A, has a direct and substantial interest in
property transfers under c. 736, even though a portion of the
statutory fee under c. 736 is deposited in an individual town
account. The town's interest is indirect and is not in connection
with the sale contract. The town advisory board does not review
real estate contracts or administer the fee collection process.
See, EC-COI-86-23 (no state interest in private transaction not
requiring agency review or approval or place agency in position of
being party in interest). Proceeds from the fee collection do not
revert to the town treasury, but rather remain in the county
treasury for the benefit of the Land Bank Commission. c. 736, s.
8A. If a town

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withdraws from the Land Bank, monies in its town account will
revert to the Land Bank Commission's account. c. 736, s. 15. The
town will not receive title to funds in its individual town account
until such time as the Land Bank Commission permanently dissolves.
As the town does not have a direct and substantial interest in
private real estate sales contracts, a real estate broker who is
also an advisory board member may receive a brokerage fee from the
private sale of property subject to c. 736.[10]


B. Land Bank Commissioners


Under s.17, Land Bank Commissioners may not receive
compensation from anyone, other than the Land Bank Commission, in
relation to a particular matter in which the Commission is a party
or has a direct and substantial interest. We conclude that the Land
Bank Commission has a direct and substantial interest in every real
estate contract under c. 736 because the Land Bank Commission,
unlike the individual town, directly receives 50% of the statutory
fee imposed on real property transfers as calculated according to
the purchase price of the property. The Land Bank Commission also
retains title to the portion of the fee designated in the
individual town accounts. The Land Bank Commission is required to
review and certify the purchase price of each transfer subject to
c. 736, and this certification is submitted to the Register of
Deeds. Unlike an individual town, the Land Bank Commission is a
direct party in interest to each real estate transfer and is vested
with enforcement powers to protect its interests. c. 736, s.s.13,
14. Therefore, the Commissioner/real estate broker is prohibited
under G.L. c. 268A, s.17 from receiving a brokerage fee from the
sale of any Martha's Vineyard property that is subject to c. 736.
In effect, a Land Bank Commissioner may not work as a real estate
broker on Martha's Vineyard during his tenure as a Commissioner.


4. May a Land Bank Commissioner or a Town Advisory Board
member who is also a local municipal employee participate in a
Commission decision where the town is also competing for the piece
of property?


A. Land Bank Commissioner/Local Municipal Employee


(1) As a Land Bank Commissioner


Pursuant to G.L. c. 268A, s.19, a Land Bank Commissioner must
abstain in matters, such as a determination to purchase land, if
a business organization in which he is serving as an officer,
director, trustee, partner or employee has a reasonably foreseeable
financial interest. In past precedent, we have considered a
municipality to be a "business organization" for purposes of G.L.
c. 268A, s.19. EC-COI-89-2; 81-153. For example, in EC-COI-81-153,
a city employee who was also a member of a state authority was
prohibited from participating as an authority member in particular
matters, such as land agreements between the city and the
authority, in which the city had a reasonably foreseeable financial
interest.

Similarly a Land Bank Commissioner who is also a municipal
employee may not participate in any matters affecting the financial
interest of his town. For example, under s.19 a Land Bank
Commissioner who is also a municipal employee must abstain in any
decisions which affect his town's financial interest, such as
decisions to purchase land in town, to allocate money to the town
account or to dispose of land in town. Therefore, if his town has
presented a competing bid for property, the Commissioner must
abstain in Land Bank decisions regarding the property. There is no
exemption available under s.19 because the Commissioner is an
elected official.

Although a Commissioner/municipal employee must not
participate, as a Commissioner, in a decision whether to compete
with his town for a piece of property, he may step down from the
Commission and publicly announce that he is representing the
interests of his town and articulate his town's position before the
Commission. Generally, G.L. c. 268A, s.17 would prohibit a
Commissioner, otherwise than as required by law for the proper
discharge of his official duties, from acting as an agent for
anyone other than the Commission in connection with a particular
matter in which the Commission is a party or has a direct and
substantial interest. We conclude that, under c. 736, a
Commissioner is acting as required by law for the proper discharge
of his official duties. Chapter 736 permits Land Bank Commissioners
to represent their towns' interests before the Commission because
c. 736 provides that each town elect one Commissioner. As the
Commission is comprised of a legal resident of each of the member
towns, it appears that the intention of the statute is to provide
for each town's representation on the Land Bank. Thus, a
Commissioner is engaging in permissible constituency work when he
advocates his town's interests before the Commission. See,
{Commission Advisory No. 13}.

It may seem anomalous that a Land Bank Commissioner/municipal
employee is required to abstain as a Commissioner in most
Commission decisions pertaining to property in his town although
he is elected to represent his town before the Land

Page 294

Bank Commission. However, c. 736, by its plain language, does not
contemplate that Commissioners will also be local municipal
employees nor does it reference any express exemption to G.L. c.
268A. The only requirement is that the Commissioner be a legal
resident of the town. In certain other statutes, where board
members' affiliation on boards and private affiliations inevitably
will result in conflicts, the Legislature has included statutory
language addressing the problem. See, e.g., G.L. c. 92, App.
s.1-3(e)
(MWRA board members who are also public employees may vote
or act on behalf of town or MWRA on matters affecting the town);
c. 15A, s.2 (members of the Board of Regents who are also
affiliated with institutions of higher education may participate
in matters involving institutions); EC-COI-87-39 (interpreting St.
1982, c. 560, s.3). Absent express statutory language in c. 736
permitting Commissioners who are municipal officials to participate
in matters affecting their town's financial interest, we must
assume that the Legislature intended c. 268A to apply in its
entirety to Land Bank Commissioners. Accordingly, Commissioners
who are also municipal employees may not participate as
Commissioners in matters in which their town has a reasonably
foreseeable financial interest.


(2) As a Municipal Employee


Chapter 268A also applies to Land Bank Commissioners in their
official activities as local municipal officials. In past
precedent, the State Ethics Commission has considered a regional
district to be a "business organization" for purposes of G.L. c.
268A, s.19. EC-COI-82-25. Accordingly, a Land Bank Commissioner
may not participate as a local official in a municipal decision
affecting the Land Bank Commission's financial interest. For
example, a local selectman who is also a Commissioner cannot
participate as a selectman in a decision to sell town land to the
Land. Bank because the Commission has a financial interest in the
decision. As another example, members of boards of health or
conservation commissions who are also Commissioners must abstain
in health board or conservation decisions regarding permits sought
by the Land Bank Commission. Appointed officials may be eligible
for a s.19(b)(1) exemption but no exemption is available for
elected officials.

You should also be aware that s.17 will limit the ability of
local municipal employees who are also Commissioners to represent
the Land Bank Commission before local boards. G.L. c. 268A, s.17.
For example, a selectman may not represent the Land Bank Commission
before the conservation commission regarding an Order of Conditions
because the selectman would be acting as an agent for someone other
than the municipality in connection with a matter in which the
municipality is a party.[11] See, {Commission Advisory No. 13};
In the Matter of Richard Reynolds,
1989 SEC 423.


B. Land Bank Commissioners who are not municipal employees in
another capacity.


Land Bank Commissioners who do not hold other local office may
participate as Commissioners in all Commission decisions affecting
their town's financial interest because they are not employed by
the town. These Commissioners will be required to abstain if a
decision affects their financial interest, or the financial
interest of their immediate family, partner, a business
organization in which they are an officer, director, partner,
trustee or employer. Just as a Commissioner/local municipal
official must abstain if his municipal employer's financial
interest is affected, the Commissioner/private citizen must abstain
if his private employer's financial interest is involved.

Land Bank Commissioners/private citizens may also represent
their town's interests before the Commission and they may represent
the Land Bank Commission before town boards because they do not
serve in a local municipal capacity.


C. Town Advisory Board Members who are not Municipal Employees
in Another Capacity.


Members of town advisory boards are municipal employees for
purposes of G.L. c. 268A. As municipal employees, their loyalty is
to the municipality they serve. A town advisory board member may
participate in a decision to deny the Land Bank Commission's
acquisition of property just as the zoning board of appeals may
deny a special permit. Each board is performing the duty with which
it is charged and s.19 is not implicated. Issues under s.19 would
arise if a town advisory board member was also an employee of the
Land Bank Commission. In that case, the member must abstain as his
employer would have a financial interest in the matter.

Town advisory board members may not receive compensation from
or act as agent or attorney for anyone other than the town in
connection with a particular matter in which the town is a party
or has a direct and substantial interest. Therefore, board members
may not act on behalf of private parties or the Land Bank
Commission before local boards. If

Page 295
 

town advisory board members serve on a part-time or uncompensated
basis, the board may be designated special municipal employee
status by the board of selectmen. G.L. c. 268A, s.1(n). Special
municipal employees may receive compensation from or act on
behalf of third parties in relation to particular matters in which they
do not participate as municipal employees, for which they do not
have official responsibility, or matters not pending in their
agency. G.L. c. 268A, s.17, para. 5.


D. Town Advisory Board Members/Municipal Employees


Sections 17 and 19 are applicable to town advisory board
members who also hold another municipal position in town in the
same manner as to board members who do not hold other municipal
offices. However, issues arise under s.20 for municipal employees
who hold dual positions in town.

Section 20 prohibits a municipal employee from having a
financial interest, directly or indirectly, in a contract made by
a municipal agency, in which the town is an interested party. For
example, a town advisory board member who is also a paid employee
in the park and recreation commission would violate s.20, unless
she was eligible for an exemption, because she is a municipal
employee as a board member who has a financial interest in a
contract with her town, namely her employment arrangement. See,
Advisory No. 7
.

Section 20 contains many exemptions and town advisory board
members who have s.20 issues should contact the SEC for further
guidance regarding their particular situation. Of particular
significance to Martha's Vineyard is an exemption permitting an
employee in a town with a population of less than 3500 people to
hold and be compensated for more than one appointed position in
town provided that the board of selectmen approves the exemption
from s.20. G.L. c. 268A, s.20, para, 15.


E. Town Advisory Board Member who is also a Land Bank
Commissioner


A Land Bank Commissioner who is also a town advisory board
member will be subject to the same restrictions as Land Bank
Commissioners who are also municipal employees (see Section A
above). In particular, such a Commissioner may not participate, as
a Commissioner, in any matter in which his town has a reasonably
foreseeable financial interest. No exemption is available under
s.19 because he is an elected official.

Additionally, under s.19, he may not participate as a town
advisory board member in any matter in which the Land Bank
Commission has a financial interest because the Commission is a
business organization in which he serves as a public official.
Particular matters in which the Land Bank Commission will have a
financial interest include decisions to sell property, to purchase
property, to incur debt, to use the town account, to improve
property. As a practical matter, s.19 will impose substantial
restrictions on a Commissioner/advisory board member's official
actions and may essentially prohibit him from holding both offices
because conflicts of interest will inevitably arise on a repeated
basis. An exemption may be available to this individual as an
advisory board member. In order to obtain this exemption, such an
individual must advise the official responsible for his appointment
to the advisory board of the nature and circumstances of the
particular matter and make full disclosure of the Land Bank
Commission's financial interest. The appointing official must
consider whether the financial interest is not so substantial as
to be deemed likely to affect the integrity of the services the
town may expect from the advisory board member and provide the
member with a written determination. G.L. c. 268A, s.19(b)(1). It
will be necessary for the appointing authority to make a separate
written determination for each particular matter because the facts
and circumstances may vary. Without a written determination, a
Commissioner/advisory board member may not participate, as an
advisory board member, in decisions affecting the Commission's
financial interest. See, In the Matter of Deidre Ling, Disposition
Agreement (1990).[12]


5. May relatives of Commissioners and board members enter
contracts with the Land Bank Commission?


Relatives of Commissioners or board members may enter
contracts with the Commission provided that the Commissioner or
board members do not participate in any decision that will affect
an immediate family member's financial interest. If the relative
is not an immediate family member, the Commissioner or board member
may participate in personnel decisions affecting the relative if
they file a public written disclosure with their appointing
official, or at each town clerk's office if they are an elected
official.

Chapter 268A defines immediate family as the employee and his
spouse, and their parents, children, brothers and sisters. s.1(e).
If the Land Bank Commission wants to hire an immediate family
member, the Commissioner or board member must abstain from
participation in any matters pertaining to

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hiring the family member, any involvement in reappointment,
promotion, firing, determining the family member's salary,
conducting job reviews, supervising the family member, and
delegating the task of dealing with an immediate family member to
a subordinate.[13] See {Commission Advisory No 11}; In the Matter
of Peter J. Cassidy
, 1988, SEC 371; EC-COI-83-11.

Additionally, board members or Commissioners who are also
owners or partners in family businesses may not have any interest
in a contract awarded to another family member in the business as
this interest would violate s.20. The family business must take
care to keep adequate records demonstrating that the advisory board
member or Commissioner's financial benefits from the corporation
are segregated from the proceeds of any Commission contract. See,
EC-COI-84-13; 83-111; 83-125
.

Finally, if the relative does not fall within the
classification of immediate family member, s.23 will apply. Section
23 contains general standards of conduct applicable to all state,
county and municipal employees. It provides, in pertinent part,
that no employee may use or attempt to use his official position
to secure unwarranted privileges or exemptions for himself or
others. G.L. c. 268A, s.23(b)(2). Furthermore, s.23(b)(3) prohibits
a state employee from engaging in conduct which gives a reasonable
basis for the impression that any person or entity can improperly
influence him or unduly enjoy his favor in the performance of his
official duties.

An appearance of a conflict of interest or bias may be raised
when a Commissioner or board member participates in a decision
affecting a relative who is not an immediate family member because
of the kinship relationship. The proper course for a Commissioner
confronted with this situation is, prior to participating, to make
a full written disclosure of the relationship and file it with each
town clerk represented by the Commission. An advisory board member
should file a full written disclosure with his appointing
authority. These disclosures will become public records. Further,
Land Bank Commissioners and advisory board members should make a
verbal public disclosure for inclusion in the meeting minutes prior
to any official participation or action. The public official should
take care to evaluate the relative's proposal with the same
objective standards as are used for all proposals.

Although this written disclosure will permit official
participation under s.23(b)(3), it will not protect a Commissioner
or board member from a s.23(b)(2) violation. Section 23(b)(2) is
implicated if a Commissioner gives a relative an "inside track" on
an unadvertised position or provides better benefits or schedules
to a relative than to similar Land Bank Commission employees.


6. How does c. 268A apply to relationships other than family
relationships?


The Legislature has delineated a series of relationships which
would mandate abstention by public officials in their official
dealings. As previously discussed, a municipal employee is required
to abstain in any particular matter affecting his financial
interest, or the financial interests of an immediate family member,
a partner, an organization in which he is serving as an officer,
director, trustee, partner or employee, or any person or
organization with whom he is negotiating or has an arrangement for
prospective employment. G.L. c. 268A, s.19. We have determined that
s.19 does not apply to matters affecting personal or business
relationships outside of the relationships listed within s.19. See,
EC-COI-89-16
(friendship); 83-12 ( spouse of state employee's
sister-in-law is not an immediate family member); 83-34 (occasional
attorney services do not create an employee relationship);
89-12 (hospital overseer is not an officer, director, trustee or employee
of the hospital).

Although s.19 is not applicable, G.L. c. 268A, s.23 is. As
previously indicated, s.23 contains general standards of conduct
applicable to all state, county and municipal employees. It
provides, in pertinent part, that no employee may use or attempt
to use his official position to secure unwarranted privileges or
exemptions for himself or others. G.L. c. 268A, s.23(b)(2).
Furthermore, s.23(b)(3) prohibits a state employee from engaging
in conduct which gives a reasonable basis for the impression that
any person or entity can improperly influence him or unduly enjoy
his favor in the performance of his official duties, or that he is
likely to act or fail to act as a result of kinship, rank or
position of any party or person.

To dispel any appearance of bias, s.23(b)(3) requires that the
public employee make a written disclosure of all the relevant facts
concerning the relationship to the appointing authority or town
clerk, if an elected official. See, In the Matter Of George
Keverian
(Disposition Agreement, April 23, 1990). This disclosure
will become a public record and must be filed prior to
participation in the matter. Additionally, municipal employees
should make a verbal public disclosure for inclusion in the meeting

Page 297

minutes prior to any official participation or action.[14]

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

[*] Pursuant to G.L. c. 268B, s.3(g), the requesting person
has consented to the publication of this opinion with identifying
information.

[1] Certain land interests are exempt. G.L. c. 736,

[2] For example, at the state level, the Secretary of EOEA is
a voting member of the Commission and holds veto power over
decisions of the Commission regarding the disposition and change
in use of any Commission interests in land. We note that the
Legislature did evidence an intent to limit the influence of the
Secretary of EOEA. See, c. 736, s.3. At the county level, the
Commission may receive county funds, and utilize the services of
the County Treasurer, and the initial Commission was appointed by
the County Commissioners until such time as local elections could
be held.

[3] Because your questions are general in nature, we are only
able to render a general opinion. We recommend that individual
Commissioners, Land Bank employees, and town advisory board members
who suspect they may have a conflict of interest situation contact
the SEC for an opinion regarding their individual situation.

[4] "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. G.L. c. 268A, s.1(j).

[5] "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. G.L. c 268A, s.1(k).

[6] "Immediate family," the employee and his spouse, and their
parents, children, brothers and sisters. G.L. c. 268A, s.1(e).

[7] An advisory board member or Land Bank Commissioner faces
additional limitations in his official capacity under s.19 in that
he may not participate as a public official in any matter in which
he or his business partner, or any real estate agency in which he
is an officer, director, trustee, partner or employee has a
reasonably foreseeable financial interest. For example, a
Commissioner who is a real estate broker may not participate in any
advisory board approval of a Land Bank Commission purchase if his
real estate agency is the broker. Advisory board members may be
eligible for a s.19(b)(1) exemption.

[8] Town advisory board members may be eligible for an
exemption under G.L. c. 268A, s.20(d) if the Selectmen designate
the town advisory board as special municipal employees. G.L. c.
268A, s.1(n). The designation of special municipal employee status
is not applicable to Land Bank Commissioners, unless that status
is granted by the Legislature. EC-COI-87-2.

[9] Business partners of board members and Commissioners may
also be restricted in their dealings with the Commission or a town
advisory board. G.L. c. 268A, s.18(d) prohibits partners of
municipal employees from acting on behalf of third parties before
boards on which the municipal employee sits or over which the
municipal employee has official responsibility. See EC-COI-89-5.
Section 18(d) will prohibit partners of board members from
appearing before town advisory boards and the Commission.

[10] As previously indicated, our conclusion would be
different if the advisory board member was involved in a sale
directly to the Land Bank Commission or to the town in which he is
an advisory board member. See, Question 2.

[11] If the municipal employee has been designated a special
municipal employee for purposes of the conflict of interest law,
he may represent the Land Bank Commission before local boards in
relation to a matter in which he has not participated as a
municipal employee, or a matter for which he does not have official
responsibility, or a matter which is not pending in his agency.
See, s.17, para. 5, s.1(n).

[12] You have also sought an opinion regarding whether the
members of the Wampanoag Tribal Council who are also town advisory
board members may participate in a land dispute action between the
Tribal Council and the Land Bank Commission. Absent the probability
of an actual dispute and further facts, we decline to render an
opinion on this issue at this time.

[13] The s.19(b)(1) exemption procedure may be available to
appointed officials.

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[14] You have also asked how the conflict of interest law
applies to Land Bank Commission staff. Commission staff are
municipal employees for purposes of c. 268A because they are
performing services for a municipal agency. s.1(g). Therefore, G.L.
c. 268A, in its entirety, will apply to Commission staff. Staff
members should direct their specific questions and fact situations
to the State Ethics Commission to obtain guidance under the law.

 

End Of Decision