November 5, 1992

FACTS:


You are a Selectman in New Ashford (the Town). You are also an
employee of the Brodie Mountain Ski Area (Brodie), a corporation
principally owned by your father.

The state statutes governing municipal property taxation
provide in part that the local assessors are to classify real
property by its use, including "residential" and "commercial"
property. G.L. c. 59, s. 2A. The Selectmen may then annually adopt
a "residential factor," which has the effect of applying a higher
tax rate to commercial property than to residential property. G.L.
c. 40, s. 56.

Your immediate family, and corporations it owns including
Brodie, own "commercial" property in the Town that amounts to 28
percent of the Town's total valuation. The next largest commercial
owner owns about 5 percent. Tho Town's 1990 federal census
population is 192. Nineteen of these Town residents own commercial
property in the Town in their individual names. Other commercial
property in the Town is owned by a closely held family corporation,
in which at least one shareholder is a Town resident. Therefore, in
addition to your immediate family, at least 20 Town residents,
constituting more than 10 percent of the Town's population, have a
personal ownership interest in commercial property in the Town.[1]

For the past several years, the Town's Selectmen have voted to
adopt a residential factor that establishes a higher tax rate for
commercial than for residential property. You expect the same issue
to come before the Selectmen in future years.


QUESTION:



May you participate as a Selectman in the decision to adopt
this residential factor?


ANSWER:


Yes.


DISCUSSION:


Section 19(a) of G.L. c. 268A generally prohibits a municipal
employee from participating in a particular matter in which he
knows that (among others) he, his immediate family, or a business
organization that employs him, has a financial interest. As a
Selectman, you are a "municipal employee" for the purpose of the
conflict law. Id. s. 1(g). Brodie, as a major commercial property
owner in the Town, has an obvious financial interest in the
Selectmen's decision to adopt a residential factor. Your father, a
member of your "immediate family" (see id. s. 1[e]), is Brodie's
principal owner. In addition, you are a Brodie employee. Therefore,
s. 19 will prohibit you from participating in the residential
factor decision, unless this decision either is not a "particular
matter" or is exempt under s. 19(b)(3) because it is a

particular matter [that] involves a determination of
general policy and the interest of the municipal employee
or members of his immediate family is shared with a
substantial segment of the population of the
municipality.


Page 454

These two legal issues are closely related, as the history of
the s. 19(b)(3) exemption shows. This exemption was not a part of
s. 19 when the conflict law was first enacted. St. 1962, c. 779, s.
1. Rather, the exemption's language is taken nearly verbatim from
a contemporaneous commentary on the newly enacted 1962 statute's
definition of "particular matter."[2] Braucher, Conflict of
Interest in Massachusetts, in Perspectives of Law, Essays for
Austin Wakeman Scott 26-27
(1964). Because of its importance to the
present discussion, we quote the relevant passage in full (omitting
footnotes), emphasizing the words that inspired the s. 19(b)(3)
exemption:

Determinations of General Policy. The statutory
definition of "particular matter" literally covers a
legislative "proceeding" or "determination" other than
"enactment of general legislation by the general court."
But the word "particular, n the exclusion of "general
legislation" and the exclusion of elected town meeting
members from the definition of "municipal employee"
indicate an intention to exclude some determinations of
general policy. Such an exclusion, together with some
limitation on the literal meaning of "financial
interest," seems essential if the statute is to be
workable. Municipal officials and employees are commonly
residents and taxpayers of the city or town. As residents
and often as employees they have a financial interest in
the expansion of municipal services; as taxpayers they
have a financial interest in reducing municipal
expenditures. Municipal policy making is largely
concerned with the resolution of this inherent conflict
of interest; a requirement that all municipal employees
abstain from participation in any matter where such
financial interests are at stake would simply destroy
municipal government.

It would seem, therefore, that a municipal employee
should not be held to have a "financial interest" in a
"particular matter" where the proceeding or determination
involves a matter of general policy and his interest and
the interests of his family and business associates are
shared by a substantial segment of the public. As under
the rules of the general court, the disqualifying
interest should be a "private right, distinct from the
public interest, n and the connection should be more
direct than that of the interests of municipal employees,
residents or taxpayers in general. Examples of the
application of the suggested standard [include] a general
classification of municipal employees as "special" or
not, using appropriate standards, should not be regarded
as a particular matter; salary and pension payments by
private employers do not necessarily relate to any
particular matter. Other examples come readily to mind:
recommendation of a comprehensive zoning by-law by a
planning board, approval of the annual budget by a
finance committee, recommendation of a new school
building by a superintendent or a school committee. But
the boundaries are not sharply drawn; judicial decisions
indicate that the line between "legislative" and "quasi-
judicial" is sometimes blurred.

Professor Robert Braucher, who wrote these words, had been a
member of the special legislative commission that proposed the 1962
statute, and of that commission's three-member drafting
subcommittee. Braucher, supra, at 6. Later, as an associate justice
of the Supreme Judicial Court, he had occasion to return to this
subject in Graham v. McGrail, 370 Mass. 133 (1976).[3] There, the
court decided that s. 19 prohibited School Committee members from
participating in a budget item in which their immediate family
members (as school employees) had a financial interest, but did not
then prohibit these members from considering the budget as a whole.
See EC-COI-87-25 (discussing this specific holding). Justice
Braucher's opinion for a unanimous court rehearsed much of what
Professor Braucher had written twelve years earlier about the terms
"financial interest" and "particular matter." 370 Mass. at 138 40.

When this Commission later proposed the present s. 19(b)(3)
language (as one of many recommended amendments to G.L. c. 268A &
268B, see H. 1235, s. 15 [1982]), however, this language was cast
as an exemption from s. 19, for reasons that are unclear.[4] The
enactment of this proposed provision unchanged, in St. 1982, c.
612, s. 11, may imply that the Legislature regards at least some
matters of general policy as "particular matters" (hence the need
for an exemption), thus taking a more expansive view of the term
"particular matter" than Professor Braucher or the Graham opinion.
Compare Graham, 370 Mass. at 139 (dictum stating that "particular

Page 455

matter" may refer "primarily to judicial or quasi-judicial
proceedings rather than to legislative or managerial action"
[emphasis added]) with Sciuto v. City of Lawrence, 389 Mass. 939,
947-48 (1983) (official's promotion of his brother was
participation in "particular matter" violating s. 19, citing
Graham ).

Assuming that the Selectmen's decision here is a particular
matter, we nonetheless conclude, in light of the legislative
history and purpose just discussed, that your participation comes
within this s. 19(b)(3) exemption. This exemption requires both (1)
that the Selectmen's decision involve "a determination of general
policy," and (2) that your and your family's interests be "shared
with a substantial segment of the [Town's] population."

The decision to adopt a residential factor, although it has
been described as "primarily executive" rather than legislative in
nature,[5] nonetheless involves a determination of general policy.
Here, the policy is one in which every taxpayer of the Town has an
interest.

The exemption's second requirement seems intended to prevent
its application to a matter that, although couched in terms of
general policy, in fact affects the financial interests of only
relatively few town residents. See Belin v. Secretary of the
Commonwealth,
362 Mass. 530 (1972) (purportedly general legislation
that in fact affected only one city was "special" law for purpose
of state constitution's Home Rule Amendment); EC-COI-89-8 (applying
this principle to define "general legislation" for purpose of G.L.
c. 268A, s. 1[k]). We think the relevant classification must be one
of kind rather than degree; here, it is the distinction suggested
by the property tax classification statutes themselves -- whether
a Town resident has an ownership interest in "commercial" property.
The present facts indicate that more than 10 percent of all Town
residents share such an interest. At least in the present
circumstances,[6] this represents a "substantial segment of the
[Town's] population.[7]

It follows that the s. 19(b)(3) exemption applies here.[8]
Therefore, you may participate fully in the Selectmen's discussion
of and vote on the decision to adopt a property tax residential
factor.

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

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

[1] The Town's principal assessor, as you authorized, provided
the facts in this paragraph.

[2] "Particular matter" was then defined as "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." G.L. c.
268A, s. 1(k), as appearing in St. 1962, c. 779, s. 1. A further
explicit exclusion of local petitions for special laws was added by
St. 1982, c. 612, s. 1.

[3] Because of his unique tri-partite role in the history of
s. 19, the Supreme Judicial Court itself later explicitly
recognized the special weight that Justice Braucher's views should
be accorded in this area. Sciuto v. City of Lawrence, 389 Mass.
939, 948-49 (1983).

[4] The bill's "section-by-section summary," distributed by
the Commission staff to both houses of the Legislature while each
was considering the bill, described this provision merely as
intended "to reflect the finding in Graham v. McGrail, 370 Mass.
133, 139 (1976)." Similarly, the Commission's official summary of
the newly enacted statute, in a January 1983 special edition of our
Bulletin, describes this provision as "in effect, a codification of
existing case law. See Grallam v. McGrail, 370 Mass. 133, 139
(1976)."

[5] Andrade v. City Council of Gloucester, 406 Mass. 337, 340-
41 (1989) (such a decision held not subject to municipal
referendum, under charter allowing referenda only on
quasi-legislative "measures").

[6] Cf. Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587
(1976) (in context, $50 was "substantial value" for purpose of G.L.
c. 268A, s. 3).

[7] "Population," as used in the General Laws, means the
number of residents counted in the most recent census (here, the
1990 federal census). G.L. c. 4, s. 7(41).

[8] Because s. 19(b)(3) exempts your "activity" here from s.
19, s. 23(d) also exempts it from s. 23.

Page 456

End Of Decision