January 26, 1993*
You and Joseph Zgrodnik are both elected members of the Hadley Planning Board (the Board). Cumberland Farms, a convenience store chain, has applied to the Board for a special permit approving its site plan to expand its existing use on a parcel of land it owns in Hadley. The Board may issue the special permit only if four of its five members so vote. G.L. c. 40A, §9, tenth paragraph.
Both you and Dr. Zgrodnik are also members of the Board of Trustees of Hopkins Academy (the Academy). The Academy owns land immediately abutting the subject Cumberland Farms parcel.
May you and Dr. Zgrodnik participate in the Board’s consideration of and vote on this special permit?
Yes, by virtue of the rule of necessity.
Section 19(a) of G.L. c. 268A, in relevant part, generally prohibits a municipal employee from participating in a particular matter in which he knows that he, or a business organization in which he is serving as “trustee” has a financial interest. As Board members, you and Dr. Zgrodnik are “municipal employees.” The application for this special permit and the Board’s decisions about it are “particular matters.” The Academy is a “business organization” of which you and Dr. Zgrodnik are trustees.
In previous opinions, we have presumed that an abutter of a parcel that is the subject of a particular matter has a financial interest in that matter. See EC-COI-89-33; 84-95. Here, the Academy is an abutter, and you and Dr. Zgrodnik are among its trustees. Therefore, in the absence of evidence that rebuts this presumption by showing clearly that the Board’s decision will not (positively or negatively) affect the value of the Academy’s abutting land, §19 would ordinarily prohibit both of you from participating in this matter.
Here, however, the Board may issue the special permit only if four of its five members so vote. G.L. c. 40A §9, tenth paragraph. If neither you nor Zgrodnik may participate, the Board would be unable to issue the special permit. Thus, we must consider whether the “rule of necessity” allows you to participate despite §19.
The courts have established the rule of necessity 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 the decision. See, e.g., Mayor of Everett v. Superior Court, 324 Mass. 144, 151 (1949); Moran v. School Committee of Littleton, 317 Mass. 591, 593-94 (1945). Otherwise, the legislative purpose in having an important public decision made would be frustrated. See 3 K. Davis, Administrative Law Treatise, §19:9 (2d ed. 1980); 38 A. Cella, Mass. Practice: Administrative Law and Practice §321 (1986).
We have previously applied the rule of necessity to G.L. c. 268A. E.g., EC-COI-92-24; 82-10; 80-100. See Graham v. McGrail, 370 Mass. 133, 138 (1976) (suggesting that the rule would apply to G.L. c. 268A in proper circumstances). In each case, we have stressed the narrow circumstance in which the rule of necessity may be invoked: for example, that no other qualified tribunal can be found, and that the governmental body’s inability to act is not due in part to the mere absence or illness of a member.
We have also sometimes referred to the body’s inability to obtain a “quorum,” usually a majority of its members, because in the circumstances we have so far considered, that was the number of members required for the body to act. See EC-COI-92-24; 82-10. Here, we must instead consider a statute that requires a “super-majority” to accomplish one of the possible outcomes.
The very case in which the Supreme Judicial Court formulated a rule of necessity in Massachusetts involved just a “super-majority” requirement. In Moran v. School Committee of Littleton, 317 Mass. 591 (1945), a teacher challenged his removal, asserting that two of the three voting School Committee members were disqualified because they had earlier testified at the Committee’s removal hearing. The statute required a two-thirds vote of the entire Committee for removal. The court held that the challenged members were entitled to participate under a rule of necessity that it established in these terms:
The general rule is that a member of an administrative board who is biased or prejudiced against one on trial before the board is not required to withdraw from the hearing if no other board can hear and determine the matter, especially if his withdrawal would deprive the board of the number of members required to take a valid affirmative vote.
Id. at 593 (emphasis added). 
Although the Moran case preceded the conflict law’s enactment, the court’s later Graham opinion cites Moran as authority for the rule of necessity that Graham then suggests may apply to G.L. c. 268A. 370 Mass. at 138. This formulation of the rule is also consistent with the rule’s purpose as stated in our prior opinions. See EC-COI-92-24 (rule “permits governmental bodies to act when they would otherwise [be] forced to forego their governing responsibilities”); EC-COI-82-10 (rule did not apply because “remaining members could approve the matter before them by a majority vote”). See also Graham, 370 Mass. at 140 (“if the step can be taken without the member’s participation, he must not participate”); note 8 supra (discussing EC-COI-84-96).
Disqualifying both you and Dr. Zgrodnik “would deprive the [B]oard of the number of members required to take a valid affirmative vote.” Therefore, the rule of necessity applies here. In order to invoke the rule, and to comply with §23(b)(3) of G.L. c. 268A, both of you must publicly disclose your capacities as Academy trustees and the Academy’s presumed financial interest in this matter. The Board’s minutes should reflect that the rule of necessity was invoked to allow both of you to participate. SeeEC-COI-92-24. Both of you may then participate fully in this matter.
*Pursuant to G.L. c. 268B §3(g), the requesting person has consented to the publication of this opinion with identifying information.