September 14, 1993

 

FACTS:


You are the Administrative Assistant (Assistant) to the
Board of Selectmen (Board) of a town (Town). The Assistant is
appointed on an annual basis to this full-time, paid position.
The Assistant's duties have recently been expanded to include the
responsibilities of the insurance commissioner (Commissioner),
previously a separately appointed, paid part-time position.
Additionally, the Assistant's duties now include the
responsibilities of Secretary to the Sewer Commissioners
(Secretary), previously also a separately appointed, paid part-
time position. The Assistant will now be compensated through one
paycheck for all of her services in that position. The Assistant
is now interested in seeking election to a position on the Board.

You also inform us that the Assistant's spouse is the
manager of a Town department (this is a full-time position
appointed by the Board).


QUESTIONS:



1. Does G.L. c. 268A permit the Assistant to provide
services to multiple municipal agencies, assuming that she will
receive only one paycheck?

2. Does G.L. c. 268A permit the Assistant to hold her
current Town position and to serve as a Selectman?

3. If she is elected and serves in the position of
Selectmen, is Town Meeting approval required under G.L. c. 268A,
s. 21A in order for the Assistant to be reappointed in future
years to her current position as Assistant?
 


ANSWERS:


1. Yes.

2. Yes, provided that she complies with the exemption found
in s. 20(d).

3. Yes.
 


DISCUSSION:


The Assistant is a municipal employee [1] for purposes of
G.L. c. 268A. Selectmen are also considered municipal employees.


1. The Assistant's Current Position.


Section 20


Section 20 prohibits a municipal employee from having a
financial interest in a municipal contract. For purposes of the
conflict of interest law, the term "contract" includes any type
of arrangement between two or more parties, under which each
undertakes certain obligations in consideration of the promises
made by the other. Thus, the Commission has previously held that
the term "contract" includes employment arrangements. See EC-COI-
84-91; In Re Doherty
(1982). See also Quinn v. State Ethics
Commission
, 401 Mass. 210 (1987).

Typically, when an individual receives compensation from the
same municipality for more than one appointed municipal position,
an issue is raised under s. 20 by virtue of the separate
employment contract which results from each municipal
appointment. Here, however, you tell us that the duties of the
Assistant have recently been expanded to include the
responsibilities of Commissioner and

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Secretary, and that the Assistant will be compensated with only
one check. In EC-COI-83-83, the Commission concluded that a state
employee who received one paycheck which reflected duties
performed for two state agencies would not violate s. 7 (the
state counterpart to s. 20) because the duties performed would be
considered to stem from one state employment contract. See also
EC-COI-84-12. Similarly, we conclude here that, because the
functions of Assistant, Commissioner and Secretary have been
combined into one municipal position, an issue under s. 20 will
not arise.


2. Holding the Positions of Selectman and Assistant.

We must also examine s. 20 in light of the Assistant's
intention to seek the office of Selectman. A selectman who also
serves as the selectmen's Assistant will have a financial
interest, within the meaning of s. 20, by virtue of the
"employment contract" which results from her appointment to the
compensated Assistant's position. Such a financial interest in a
municipal contract is prohibited unless one of the exemptions
found in s. 20 applies.

Because the Town has fewer than 10,000 residents, the Town's
Selectmen are, by definition, special municipal employees [2]. As
a special municipal employee, the individual in question may
avail herself of the exemption found in s. 20(d) [3] to overcome
the prohibition against the financial interest she has in her
employment contract as Assistant [4]. She must file, with the
Town Clerk, a written disclosure of her financial interest in the
Assistant's position, and must also receive, from the remaining
selectmen, approval of the s. 20(d) exemption [5].

We note that s. 20 also contains an exemption (the
"selectman's exemption") which permits a municipal employee to
hold the additional municipal position of selectman, provided
that the individual is employed by the municipality prior to
becoming a selectman. The selectman's exemption imposes several
additional restrictions. For example, the municipal employee may
receive only one municipal salary but has the ability to choose
which salary he will receive. In addition, as a selectman, he may
not vote or act on any matter within the purview of the municipal
agency by which he is employed or over which he has official
responsibility. Finally, he may not be appointed to any
additional municipal position while serving as a selectman or for
six months thereafter. While the Assistant is not prohibited from
using the Selectman's exemption, rather than s. 20(d), to
overcome the s. 20 prohibition, use of the Selectman's exemption
will render her service as a Selectman of little or no value to
the Town because of the restriction that, as a Selectman, the
Assistant may not vote or act on any matter within the purview of
the municipal agency by which she is employed. See EC-COI-93-4.
Because the Assistant is employed by the Board, the restriction
imposed by the selectman's exemption would prohibit her from
acting or voting on any of the Board's business. Thus, we assume
that the Assistant will elect to pursue an exemption under s.
20(d). The Assistant must additionally comply with the standard
imposed by s. 19 of G.L. c. 268A.


Sections 19


Section 19 prohibits a municipal employee from participating
[6] in any particular matter [7] in which she or her immediate
family members [8], including her husband, has a financial
interest.

Section 19 will prohibit the Assistant as selectman from
participating in matters related to her employment or any
reappointment as Assistant. For example, the Assistant could not
participate as a selectman in the approval of the s. 20(d)
exemption for herself. Moreover, she cannot participate as
Assistant or as selectman in any particular matter which will
have a financial impact on her husband's employment by the Town.
We note that participation includes not only the final, formal
vote on a given matter, but also any discussion, recommendations,
etc., leading to a formal vote. EC-COI-87-25. Whenever such a
matter comes before the Board, it would be advisable for her to
leave the room. See Graham v. McGrail, 370 Mass. 133, 138 (1976).


3. The Assistant's Reappointment.


Assuming that the Assistant receives a s. 20(d) exemption
permitting her to hold the positions of selectman and Assistant,
the next issue is whether the Assistant/selectman may be
reappointed by the remaining selectmen to the Assistant's
position on an annual basis.


Section 21A


Section 21A prohibits a municipal board or commission from
appointing any of its members to any office or position under the
supervision of that board or commission unless such appointment
is first approved by a vote at an annual town meeting or unless
the member has resigned from the Board at least thirty days
before the appointment. Therefore, even upon compliance with the
requirements of s. 20, an issue will arise under s. 21A if the
board of

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selectmen appoints one of its current members (or a former member
prior to the expiration of thirty days) to a position under the
supervision of the selectmen [9].


In EC-COI-92-30, we explained that s. 21A is rooted in the
common law doctrine of incompatibility of offices. See Gaw v.
Ashley
, 195 Mass 173 (1907); Attorney General v. Henry, 262 Mass.
127, 132 (1928); Mastrangelo v. Board of Health of Clinton, 340
Mass. 491, 492 (1960); Starr v. Board of Health of Clinton, 356
Mass. 426 (1969). This incompatibility includes the potential
danger that a board member will attempt to persuade his fellow
colleagues to appoint him or otherwise engage in conduct which
might give the appearance of such self-dealing activity, and the
danger that, as a result of alliances formed through service
together on a board, board members will be persuaded to reappoint
one who, under different circumstances, they would conclude
should be removed from office. See Mastrangelo, 340 Mass. at 492;
See also EC-COI-80-44 (s. 21A serves to prohibit board member
from attempting to persuade fellow colleagues to appoint him and
any appearance of self-dealing activity). Our review of this body
of common law, and the express language of s. 21A, persuades us
that the Legislature has chosen to resolve the actual or
perceived incompatibility of positions by prohibiting the
appointment of an individual to a position under the supervision
of his fellow board members. We must still consider, however,
whether the policy considerations embodied in s. 21A are also
implicated in the case of a reappointment.

We have previously examined the issue of reappointment in
the context of s. 20 and the selectman's exemption. In EC-COI-82-
107
, we considered whether the selectman's exemption and its
prohibition against appointment to a second municipal position
effectively barred an individual's reappointment to a municipal
position which he held prior to becoming a selectman. Noting the
statute which created this appointment bar was entitled, "[a]n
act providing that a person shall not be prohibited from holding
the office of selectman in a town because such person is an
employee of the Town," we concluded that the appointment bar was
intended to cover only new, post-elective appointments. We went
on to note that the reappointment at issue in EC-COI-82-107 was
not the same as an appointment to a new, post-elective position.
Rather, we concluded that the reappointment was more properly
regarded as an appointment to the very position which the
selectman's exemption expressly permits a selectman to hold [10].
 

We decline to reach a similar result, however, with regard
to our treatment of reappointment in the context of s. 21A,
because s. 21A serves a substantially different purpose. In
contrast to the selectman's exemption, s. 21A prohibits a board
member from acting to appoint a fellow board member to a position
under the supervision of the board, absent a vote of the Town
meeting. We find that by erecting this appointment bar the
Legislature has once again sought to address the potential for
abuse whereby selectmen could acquire or continue to hold a
subordinate position by virtue of their incumbency in the office
of selectmen. See fn.9, above. We conclude that the application
of s. 21A to the Assistant is appropriate where the potential for
using the office of selectman to seek designation by her fellow
board members to continue to hold the Assistant's position is
present upon her "reappointment" [11]. Therefore, if the
Assistant is serving as a selectman when her current appointment
as the Board's Assistant expires, she may not be reappointed by
the Board as Assistant, without first receiving approval of the
appointment at the annual town meeting, [12]. or if she has
resigned from her Selectman's position, she may be reappointed
only after the expiration of thirty days.


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

[1] "Municipal employee," a person performing services for
or holding an office, position, employment or membership in a
municipal agency, whether by election, appointment, contract of
hire or engagement, whether serving with or without compensation,
on a full, regular, part-time, intermittent, or consultant basis,
but excluding (1) elected members of a town meeting and (2)
members of a charter commission established under Article LXXXIX
of the Amendments to the Constitution. G.L. c. 268A, s. 1(g).

[2] "Special municipal employee", a municipal employee who
is not a mayor, a member of the board of aldermen, a member of
the city council, or a selectman in a town with a population in
excess of ten thousand persons and whose position has been
expressly classified by the city council, or board of aldermen if
there is no city council, or board of selectmen, as that of a
special employee under the terms and provisions of this
chapter; provided, however, that a selectman in a town with a population
of ten thousand or fewer persons shall be a special municipal
employee without being expressly so classified. All employees who
hold equivalent offices, positions, employment or membership in
the same municipal agency shall have the same classification;
provided, however, no municipal employee shall be classified as a
"special municipal employee" unless he occupies a position for
which no

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compensation is provided or which, by its classification in the
municipal agency involved or by the terms of the contract or
conditions of employment, permits personal or private employment
during normal working hours, or unless he in fact does not earn
compensation as a municipal employee for an aggregate of more
than eight hundred hours during the preceding three hundred and
sixty-five days. For this purpose compensation by the day shall
be considered as equivalent to compensation for seven hours per
day. A special municipal employee shall be in such status on days
for which he is not compensated as well as on days on which he
earns compensation. All employees of any city or town wherein no
such classification has been made shall be deemed to be
"municipal employees" and shall be subject to all the provisions
of this chapter with respect thereto without exception. G.L. c.
268A, s. 1(n).

[3] Under s. 20(d), the restrictions of s. 20 do not apply
to a special municipal employee who files with the clerk of the
city, town or district a statement making full disclosure of his
interest and the interests of his immediate family in the
contract, and if the city council or board of aldermen, if there
is no city council, board of selectmen or the district prudential
committee, approves the exemption of his interest.

[4] Section 20 also contains an exemption which is
applicable to a special municipal employee who does not
participate in or have official responsibility for any of the
activities of the contracting agency. This exemption is not
available here because, as a selectman, the Assistant is employed
by the contracting agency (the Board) and, therefore, she
participates in the activities of the contracting agency. See
G.L. c. 268A, s. 20(c)
.

[5] In her Assistant's position, the employee will not have
a financial interest in the position of selectman because
selectmen are elected and we have previously determined that
election to a public office does not create a contract. EC-COI-
82-26
.

[6] "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).

[7] "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).

[8] "Immediate family," the employee and his spouse, and
their parents, children, brothers and sisters. G.L. c. 268A, s.
1(e).

[9] The s. 21A restriction, however, is not triggered until
a board appoints one its own members to a position under that
board's supervision. Where a person is first employed under the
supervision of a board and then becomes a board member, an issue
will not be raised under s. 21A if no additional appointment is
necessary. See Commission Advisory No. 3.

[10] As we noted in EC-COI-82-107, the Legislature was
apparently aware of the potential for abuse in that a selectman
could use that position to acquire other municipal positions. The
Legislature, however, addressed that concern in the case of
regular selectmen (i.e. selectman who are required to use the
selectman's exemption to continue to hold a municipal position
held prior to becoming a selectman) by prohibiting those
selectmen from seeking and holding any additional municipal
positions (not held prior to election).

[11] We do not believe our interpretation here of s. 21A is
inconsistent with EC-COI-82-107 because we believe that the
selectman's exemption does not contemplate allowing a municipal
employee to seek and hold the additional position of selectman
when the original municipal position is a position under the
supervision of the selectmen. As we noted above, use of the
selectman's exemption where one holds a position under the
supervision of the Board renders the selectman's position a
nullity. See our discussion at Section 2. To the extent that it
is necessary, we are here clarifying our ruling in EC-COI-82-107
to state that the selectman's exemption will effectively allow
reappointment only where such reappointment is to a position
which is not under the supervision of the selectmen.

[12] We note that unless the Town restructures the
Assistant's position so as to obviate the need for annual
reappointment, town meeting approval will be necessary each year
in order for the Assistant to continue to hold that position as
well as her selectman's position.

 

End Of Decision