March 13, 1991

 

FACTS:

Page 347

You are an administrator in a town (Town). Your duties include
working directly for the town manager on special projects, serving
as acting town manager in his absence, and working on special
redevelopment projects in the Town.

As part of the revitalization effort in the business district,
you initiated a program of housing rehabilitation in the
surrounding neighborhoods. Under that program, through community
development grants funded by the federal Department of Housing and
Urban Development (HUD) and awarded by the state Executive Office
of Communities and Development (EOCD), properties which have code
violations are eligible for grants to eliminate those violations.
In addition, special grants are given in conjunction with the
regular funding for the removal of lead paint from homes and rental
units.

The program has two components, addressing both owner-occupied
and rental units. Under the owner-



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occupied program component, owners who meet the income criteria
established by Section 8 guidelines of HUD can receive grants to
rehabilitate their home. This assistance ranges from outright
grants to matching grants dependent upon income. Under the second
program component, rental units are targeted for assistance
regardless of whether those units are owner or nonowner occupied
multi-units. This component provides for matching funds and
requires that the occupants of the rental units meet the Section
8 HUD guidelines. In addition, the owner must agree to continue to
rent to income-eligible individuals for a specified period of time.

The program is administered by a community development
coordinator who works under your supervision. He is responsible for
reviewing applications for assistance and determining eligibility.
Under his supervision is the housing rehabilitation specialist and
the program secretary.

You are the owner of a multi-family unit in which you live.
The unit is located in the required target area for eligibility.
You have been notified by a representative of the state Department
of Public Health that one of your rental units and areas of the
exterior of the building contain lead paint. With this
notification, you have been informed that you have ten days to
contract for the removal of the lead paint. You are interested in
applying for a rehabilitation grant for an owner-occupied building
under the above-described housing rehabilitation program.
 


QUESTION:



Does G.L. c. 268A permit you to apply for and accept a
rehabilitation grant under the housing rehabilitation program?
 


ANSWER:


Yes, subject to certain conditions.
 


DISCUSSION:

As director of administration and development for the Town,
you are considered a municipal employee for the purposes of G.L.
c. 268A. Four sections of the law are relevant.


1. Section 20


Section 20 of G.L. c. 268A prohibits a municipal employee from
having a financial interest, direct or indirect, in a contract made
by an agency of the same municipality, unless an exemption applies.
The housing rehabilitation grant will constitute a contract for the
purposes of G.L. c. 268A, EC-COI-87-40, and your proposed
acceptance of the grant will give you a financial interest in a
contract made by a Town agency, the office of administration and
development. Under G.L. c. 268A, s.20(e), however, the prohibition
of s.20 does not apply "to a municipal employee who receives
benefits from programs funded by the United States or any other
source in connection with the rental, improvement or rehabilitation
of his residence to the extent permitted by the funding agency."
Because your housing rehabilitation grant would involve your
receipt of benefits from a federally funded program in connection
with the rehabilitation of your residence, you qualify for an
exemption under s.20(e). Compare, EC-COI-83-117 (grant must involve
improvement or rehabilitation of residence in order to qualify
under s.20(e)).


2. Section 19


Under G.L. c. 268A, s.19, a municipal employee is prohibited
from officially participating[1] in any application, contract,
decision or other particular matter[2] in which he has a financial
interest. To comply with s.19, you must abstain from any official
discussion, review, recommendation, approval or monitoring of your
grant application or grant in your capacity as director of
administration and development. Your appointing official, the town
manager, may assign these official responsibilities to other
municipal employees or may assume them himself.[3]


3. Section 17(c)


Under G.L. c. 268A, s.17(c), a municipal employee may not act
as agent for anyone in connection with any particular matter in
which the municipality or a municipal agency is either a party or
has a direct and substantial interest. The Commission has
recognized, however, that an employee who appears before a
municipal agency on his own behalf is not acting as the agent for
others within the meaning of G.L. c. 268A, s.17. See, Advisory No.
13 (Agency); EC-COI-89-11; 85-55.
Accordingly, you may file with
a Town agency an application for a housing rehabilitation grant on
your own behalf as an owner-applicant.


4. Section 23(b)


Under G.L. c. 268A, s.23(b), a municipal employee may neither
(2) use or attempt to use his official position to secure for
himself or others unwarranted privileges or exemptions which
are of substantial value and which are not properly available
to similarly situated individuals; nor

(3) act in a manner which would cause a reasonable person,
having knowledge of the relevant circumstances, to conclude
that any person can improperly influence 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,
position or undue influence of any party or person. It shall
be unreasonable to so conclude if such officer or employee has
disclosed in writing to his appointing authority or, if no
appointing authority exists, disclose in a manner which is

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public in nature, the facts which would otherwise lead to such
a conclusion.

These provisions apply both to you and to other Town officials.
Under this section, those Town officials who will be reviewing your
housing rehabilitation application may not grant to you any
unwarranted treatment and must evaluate your application pursuant
to the same objective standards by which other similar applications
are handled. Those officials should also disclose to the town
manager the fact that they are participating in a matter affecting
the director of administration and development.

As applied to you, s.23 requires that your official dealings
with these town officials be in no way influenced by the outcome
of your housing rehabilitation application. For example, your
evaluation of employees of the office of administration and
development may not be influenced by their handling of your housing
rehabilitation grant application.

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

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

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

[3] Under s.19(b)(1), the town manager also has the option of
granting you written permission to participate officially in
matters in which you have a financial interest, pursuant to the
standards of s.19(b)(1). See, In the Matter of Peter J. Cassidy,
1988 SEC 371.

 

End Of Decision