May 25, 1993

FACTS:


You are the Town Counsel for the Town of North Brookfield
(Town). Due to the recent death of one of the members of the
Town's Board of Selectmen (Board), the Board is currently
composed of two selectmen. A special election to fill the vacant
Board seat is scheduled for July of 1993 [1].

On April 21, 1993, the American Legion applied for a pouring
license for use in a building which is owned by one of the
selectmen and which will be leased to the American Legion,
contingent upon the American Legion's receipt of the pouring
license from the Board. If the American Legion does not obtain a
pouring license, it will seek to lease property in another
location.

In an unrelated case, on April 23, 1993, a restaurant owner
who is currently leasing property from a partner of one of the
selectmen (the other sitting selectman) applied for a pouring
license. You tell us that, for the reasonably foreseeable future,
the restaurant's current leasing arrangement is likely to be
unaffected by the Board's decision on a pouring license. The
leasing arrangement, by its own terms, is not contingent upon the
lessee's ability to obtain a pouring license. In addition, you
tell us that the restaurant is already operating from its current
location without a pouring license, and any resulting relocation
of the restaurant upon completion of the current lease term is
speculative.

A "pouring license" for beverages to be drunk on the
premises may be granted by the local licensing authority pursuant
to G.L. c. 138, s. 12. Section 15A of G.L. c. 138 provides that
with regard to license applications under s. 12, the local
licensing authority (the selectmen) must cause a notice to be
published within ten days after receipt of a pouring license
application. The local licensing authority may take action on an
application only after a hearing which may not be held sooner
than ten days after the publication of the notice. Pursuant to
G.L. c. 138, s. 16B, applications for licenses shall be granted
or dismissed by the local licensing authority not later than 30-
days after the filing of the application. Any applicant who is
aggrieved by the action of a local licensing authority in
refusing to grant an application, or by failure to act within the
30 day period, may appeal to the Alcohol Beverages Control
Commission (ABCC). You tell us that the ABCC has jurisdiction
only to approve or disapprove of the action of the local
licensing authority and must then remand the matter to the local
licensing authority for further action. The ABCC may not, in any
event, order a license to be issued to any applicant except where
the application for the license application has first been
approved by the local licensing authority. The ABCC does not have
the ability to compel a local licensing authority to grant a
license. Rather, if the ABCC disagrees with the denial of a
license, it may remand the matter for further action by the local
authority.


QUESTIONS:


1. May the Selectman who is himself the landlord of a
license applicant participate in discussions or votes in
connection with the pouring license application submitted to the
Board?

2. May the Selectman whose partner is the landlord of a
license applicant participate in discussions or votes in
connection with the pouring license application submitted to the
Board?


ANSWERS:


1. Yes, because of the rule of necessity.

2. Yes.


DISCUSSION:

1. Selectman/Landlord


Section 19 of G.L. c. 268A provides that a municipal
employee may not participate [2] in any particular matter [3] 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. Such
a financial interest may be of any size, and may be either
positive or negative. EC-COI-89-33; 89-19. Furthermore, whether
the financial interest is direct and immediate, or reasonably
foreseeable, the s. 19 restriction is implicated. EC-COI-89-19.

You have informed us that with regard to the Selectman who
is himself a landlord, without issuance of a pouring permit, his
tenant will withdraw from the contemplated leasing arrangement.
In light of these facts, it is reasonable to conclude that the
Selectman's financial interest will be affected by the Board's
decision on the pouring license application. Consequently, s. 19
would normally prohibit the selectman's participation in the
Board's actions

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(including discussions or hearings) concerning that particular
license application.

The rule of necessity was established by the courts to allow
public officials to participate in official decisions from which
they are otherwise disqualified by their bias, prejudice or
interest when no other official or agency is available to make
that decision. See Moran v. School Committee of Littleton, 317
Mass. 591, 594 (1945); Graham v. McGrail, 370 Mass. 1233, 138
(1976) (suggesting that the rule would apply in proper
circumstances where public officials could not participate due to
G.L. c. 268A); see also Georgetown v. Essex County Retirement
Board
, 29 Mass. App. Ct. 272 (1990).

The Commission has historically stressed the narrow
circumstances in which the rule of necessity may be invoked.
Specifically, the Commission has held that the rule of necessity
may not be validly applied where another qualified tribunal can
be found or where the governmental body's inability to act is due
in part to the mere absence or illness of a member. See EC-COI-
92-24; 82-10; 80-100
. In other words, only where the municipal
body cannot obtain the quorum necessary to take action because of
disqualification (because of conflicts of interest) may the rule
of necessity provide a mechanism by which all members may act
notwithstanding any conflicts of interest.

In a recent opinion concerning the rule of necessity, we
held that the rule would apply to a situation where
disqualification due to conflicts of interest would deprive the
governmental body of the number of members necessary to take a
valid affirmative vote. EC-COI-93-3. In that particular case,
although a majority of the members of a municipal board were
qualified to consider the matter at issue, we found that the rule
could be applied in a situation where, because of conflicts of
interest and the type of matter being considered (requiring a
supermajority for an affirmative vote), the body could never
approve (or act affirmatively with regard to) the matter.

Here, a novel issue concerning applicability of the rule of
necessity is presented. We have not previously considered the
rule's applicability where one position on a board is vacant and
cannot be filled in time to comply with a time requirement for
taking action imposed on the board by a statute. Under these
circumstances, the resulting question is whether the rule can be
invoked as to the current two-member board where one board member
would otherwise be disqualified due to a conflict of interest.

We believe that the rule of necessity should apply in a
situation where statutory time restrictions require the Board to
act, where a vacancy on the Board cannot be filled in time to
meet those time restrictions and where, as a result, the Board
cannot obtain a quorum due to the disqualification of one or more
of its members [4]. If the rule is not applied in this situation,
the Board will be unable to fulfill its statutorily required
responsibilities because of a conflict of interest. Here, the
other requirement for the rule's applicability is met because
neither the ABCC nor any other entity may carry out the task of
issuing a pouring license. We therefore find that under
circumstances such as those presented here, the rule of necessity
may be applied. To find otherwise, we would frustrate the
explicit legislative purpose of having an important public
decision, such as the granting of a liquor pouring license, made
in a timely manner by a local licensing authority.


2. Selectman Whose Partner is Landlord.


With regard to the other Selectman whose partner is
currently leasing property to an applicant for a pouring license,
we must first determine whether that Selectman will be prohibited
from participating by virtue of s. 19. As indicated above, s. 19
will prohibit a municipal employee from participating in a matter
in which his partner has a direct and immediate or reasonably
foreseeable financial interest. Here, the applicant is already
operating his business from the leased premises and is unlikely,
in the foreseeable future, to alter his lease arrangement as a
result of an unfavorable decision by the Board concerning the
pouring license. Based on the facts provided to us, it does not
appear that the partner of the Selectman in question would have a
direct and immediate or reasonably foreseeable financial interest
in the restaurant owner's ability to obtain a pouring license.5/
Any impact which the pouring license decision might have on
future lease arrangements with the applicant is speculative at
this time. See EC-COI-89-19 (financial interests which are
remote, speculative, or not sufficiently identifiable do not
require disqualification). We caution, however, that were we to
have different facts before us, we might be inclined to find that
the Selectman's participation is barred under s. 19. For example,
an issue would be raised under s. 19 if the tenant's restaurant
business was likely to fail without the issuance of the license
(and therefore the tenant would be unable to fulfill his lease
obligations). Similarly, if the lease arrangement contained a
term allowing for the Selectman's partner as landlord to share in
any of the restaurant's profits, the s. 19 restriction would be
implicated. Should you

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discover additional facts indicating an identifiable financial
interest on the part of the Selectman's partner, you should seek
further advice from this Commission.


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


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

[1] Apparently, a total of 64 days are required for the
scheduling and holding of a special election. See G.L. c. 41, s.
10; c. 53, ss. 7, 14
.

[2] "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).

[3] "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).

[4] We note that this opinion is not intended to address the
applicability of the rule of necessity to situations in which a
board position is vacant and cannot be filled for a period of
time, but where the board is not compelled by law to take action
before the position may be filled. Likewise, we are not
commenting here on the appropriateness of invoking the rule of
necessity where the board is required by law to act on a matter
within a limited time period and where one of its members is
unable to participate for reasons other than vacancy before the
expiration of the period in which the board must act.

[5] Section 23(b)(3) prohibits a public employee from
engaging in conduct that 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, but allows the employee to dispel any such impression by
written public disclosure. Absent an issue under s. 19, the
Selectman in question would nevertheless need to file a written
disclosure with the Town Clerk of the landlord/tenant
relationship between his partner and the pouring license
applicant. Such a disclosure must be made prior to Selectman's
participation in Board proceedings relating to the license
application.


End Of Decision