September 10, 1992

FACTS:

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You are an elected member of a municipal Board of Health
(Board). You wish to know whether you may participate in votes and
discussions concerning a proposal for a facility (the project)
which would be adjacent to your neighborhood. You state that you
recently sold a home in the area and that the value of that home
was directly affected by the project. You also recently purchased
a new home within the same area (further from

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the project but within the affected area) and have concluded that
the purchase price was, in fact, affected by the operation of the
project.


QUESTIONS:


1. May you participate in votes or discussion involving the
project?

2. Would the Rule of Necessity permit you to participate in
matters involving the project if other members of the Board are
also affected by the project?


ANSWERS:

1. No, for the reasons stated below.

2. The Rule of Necessity, if properly invoked, would permit
you to participate in matters involving the project,
notwithstanding your foreseeable financial interest.


DISCUSSION:


Section 19


Section 19 of c. 268A provides that a municipal employee may
not participate[1] as such a municipal employee in any particular
matter[2] in which to his knowledge he, his immediate family or
partner, a business organization in which he is serving as officer,
director, trustee, partner or employee, or any person or
organization with whom he is negotiating or has any arrangement
concerning prospective employment, has a financial interest. The
financial interest may be of any size, and may either be positive
or negative. See, e.g., EC-COI-89-33; 89-19; 84-96. If the municipal
employee's financial interest will be affected either directly or
foreseeably, the municipal employee must abstain from the matter in
question. See, e.g., 89-19; Commission Advisory No. 11 (Nepotism);
see also Graham v.McGrail, 370 Mass. 133 (1976). Participation in a
particular matter includes both discussions and votes concerning
the matter. See Graham, 370 Mass. at 137138. Graham v. McGrail
concludes that, while not required by law, it is advisable for the
municipal employee to leave the room whenever he is prohibited from
participating because of the restrictions of s.19. Id., 370 Mass.
at 138.

You have informed us that the value of the home you recently
sold (prior to your becoming a member of the Board) was directly
affected by the project, as was the value of the home recently
purchased by you in the same area. In light of your facts, it is
reasonable to conclude that the value of the home recently
purchased by you within the same area will continue to be affected
by matters involving the project.[3]

Consequently, you may not participate in votes or discussions
concerning the project because it is reasonably foreseeable
that your financial interest will be affected as a result of your
continued home ownership in an area near the project.


The Rule of Necessity


As an elected member of the Board, you may participate in
votes or discussions concerning the project only if the Board has
occasion to properly invoke the so called Rule of Necessity.[4]
See, e.g., EC-COI-82-10. That judge-made rule permits governmental
bodies to act on matters when a quorum cannot be obtained because
of Board members' conflicts of interest.[5] Thus, the Rule of
Necessity permits governmental bodies to act when they otherwise
would have been forced to forego their governing responsibilities.

However, as 82-10 stated:

[t]he rule should only be utilized where so many members
of a tribunal are disqualified that the body is incapable
of acting because an insufficient number remain to
constitute a quorum.

The Rule of Necessity is considered a rule of last resort and
may not be invoked when a way can be found to provide a qualified
tribunal, such as by excluding from the tribunal the disqualified
member or by counting only the votes of the members who are
qualified. 2 K. Davis, Administrative Law, s.12.04; EC-COI-82-10.
The mere absence of a quorum because of illness or absence of a
member (for example) does not allow the Rule of Necessity to be
invoked. See Graham v. McGrail, 370 Mass. at 138. Further, once a
quorum has been obtained, the Rule of Necessity cannot be used to
break a tie vote.

It is always advisable, although not required, that the Rule
of Necessity be invoked by the Chairperson of the Board upon the
written advice of town counsel, because

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a Board member would violate s. 19 if the Rule is improperly
invoked. Town counsel's advice should provide the reasons why the
Rule of Necessity is being used, and explicitly indicate that a
quorum can be obtained only by invocation of the rule. (It is
advisable for town counsel to establish guidelines, in advance,
describing the circumstances under which the rule should be
invoked.) The minutes of the Board should also indicate that the
Board was unable to obtain a quorum because of the disqualification
of members and, as a last resort, each of those disqualified
members will now participate under the authority of the Rule of
Necessity.

Accordingly, if other members of the Board also have conflicts
of interest involving the same particular matter such that a quorum
cannot be obtained,[6] you may participate in matters involving the
project even if the value of your home will be affected by your
participation in the matter once the Rule of Necessity is properly
invoked by the Board.

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[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] In an informal staff letter to you dated April 1, 1991,
you were informed that you could submit additional information to
this Commission which evidenced that your financial interest would
not be affected by the project as a result of purchasing a new home
in the area. Although you have now requested this formal Commission
opinion, you have not asked the Commission to consider any
additional facts concerning your financial interest. Thus, we must
presume that you do not have any facts available which would
indicate that your financial interest will not be affected by the
project in question. Cf. EC-COI-89-33 (presumption of financial
interest can be rebutted by evidence to the contrary).

[4] Section 19(b)(3) provides an exemption for municipal
officials where the particular matter in question involves a
determination of "general policy" and the financial interest of the
municipal employee is shared with a substantial segment of the
population of the municipality. However, we do not have sufficient
facts in your case to make a determination under s. 19(b)(3).
Consequently, based upon the facts presented to us, you may not
rely upon the s. 19 exemption.

[5] If the number for a quorum is not set by law, a quorum is
generally considered to be a majority of the board's members.

[6] The conflicts of interest need not be the same conflict
which you have. For example, if you serve on a three member Board
and you cannot participate for the reasons stated above, and
another member cannot participate because she has a direct interest
in the project, the Rule of Necessity may be invoked. The Rule of
Necessity would permit all three members of the Board to
participate, notwithstanding the various potential conflicts of
interest.

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End Of Decision