November 5, 1992

FACTS:


You are the City Solicitor of Waltham (the City). The City
Council may request you or the City's Law Department (which you
supervise) for legal advice whether the City may place "salary caps
on Department heads and other senior managerial personnel" and also
"place a temporary moratorium on promotions of City employees." You
would likely be subject to a salary cap if one were adopted.


QUESTION:


May you or any other lawyer in the Law Department provide this
advice?


ANSWER:


So long as it is reasonably foreseeable that you would be
subject to a salary cap, you may not participate in this advice,
unless the Mayor first makes a written determination under G.L. c.
268A, s. 19(b)(1), as explained below. Other lawyers in your
Department could provide the advice, however, if it were not
reasonably foreseeable that the Council action would apply to them,
and if you did not participate.


DISCUSSION:


Section 19(a) of G.L. c. 268A generally prohibits a municipal
employee from participating in a particular matter in which he
knows he has a financial interest. As City Solicitor, you are a
"municipal employee" under the conflict law. G.L. c. 268A, s. 1(g).
This request for your Department's official legal advice, as a
"request for a ruling or other determination," is a "particular
matter." Id. s. 1(k). Since it is reasonably foreseeable that
the salary cap would apply to you, you have a "financial interest" in
the matter. See, e.g., EC-COI-89-19; 86-25. Therefore, you may not
participate in giving this advice, whether by giving it yourself or
by discussing it with others. See G.L. c. 268A, s. 1(j).

An exemption is available to you from this s. 19 prohibition.
You may obtain this exemption only by advising your appointing
authority, the Mayor,[1] in writing of your financial interest in
this matter. The Mayor could then give you an advance written
determination that your

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financial interest is not so substantial as will likely affect the
integrity of your services to the City. s. 19(b)(1). You would then
be free to participate fully in this matter.

Alternatively, other lawyers in your Department could give the
requested advice, if it were not reasonably foreseeable that the
Council action (either the salary cap or the promotion moratorium)
would apply to them. You could not participate, however, even by
assigning the matter to a particular lawyer in the Department. See
EC-COI-86-13.
Finally, of course, the City or the Council could
retain special counsel to give this advice.

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

[1] Although the City Council confirms your appointment by the
Mayor, in such situations a determination by the official who
initiates the appointment is sufficient. See EC-COI-87-41; 88-16 n.
1.

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End Of Decision