May 10, 1994

FACTS:

You are an attorney seeking an opinion on behalf of a Mayor
of a City. The spouse of the Mayor is a firefighter employed by
the City's Fire Department, and is a member of the City
Firefighters Union ("Union"). The Mayor is the sole collective
bargaining authority for the City, pursuant to G.L. c. 150E, and
therefore has the responsibility to participate in contract
negotiations and other decisions in which the Mayor's spouse has
a financial interest. The Mayor is also the City's "appointing
authority" for purposes of the civil service law, G.L. c. 31,
which is incorporated by reference in the collective bargaining
agreement between the City and the Union ("Agreement").

The Mayor's spouse is the subject of a grievance filed by
the Union, in which the Union alleges that the prior Mayor's
appointment of the Mayor's spouse to the position of Lieutenant
violated the Agreement.

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Under the Agreement, grievances that are not resolved at Step I,
before the Chief of the Fire Department, or at Step II, before the
City's Director of Personnel, shall be submitted to arbitration or,
where appropriate, to the Massachusetts Civil Service Commission.
You state that the grievance has now progressed past Step II and
that, as appointing authority, the Mayor may be called upon to
participate in decisions relative to the disposition of the
grievance. This matter is currently being handled by the City's
labor counsel.

The only provision of the City Charter which deals with
substitution for the Mayor is s. 4.10, thereof, entitled
"Temporary Absence of the Mayor". That section provides:

(a) Acting Mayor - Whenever by reason of illness or absence
from the city, the mayor shall be unable to perform the
duties of his office for a period of three successive
working days, or more, the president of the city council
shall become the acting mayor.

(b) Powers of Acting Mayor - The acting mayor shall have all
of the powers of the mayor except that he shall not make any
permanent appointment nor removal to or from any office
unless the disability of the mayor shall have continued for
sixty days or more, nor shall he approve or disapprove any
measure passed by the city council unless the time within
which the mayor must act would expire before the return of
the mayor. During any period in which the council president
is serving as acting mayor he shall not be eligible to vote
on any measure as a member of the city council.


QUESTION:


May the Mayor participate in the negotiation of the
collective bargaining agreement between the City and the Union,
even though the Mayor's spouse has a financial interest in that
contract?


ANSWER:

No. However, the Mayor may invoke the rule of necessity to
select a "designated representative" to carry out this function.


DISCUSSION:

The Mayor is a municipal employee[1] for purposes of the
conflict of interest law. Section 19 of G.L. c. 268A prohibits
the Mayor's official participation[2] in any contract, decision
or other "particular matter"[3] in which the Mayor or the Mayor's
immediate family[4] member has a financial interest. Section 19
encompasses financial interests of any size, whether positive or
negative, but the financial interest must be direct and immediate
or reasonably foreseeable. See EC-COI-92-18; 89-19; 86-26.
Consequently, s. 19 would normally prohibit the Mayor's
participation in those matters affecting the spouse's direct or
reasonably foreseeable financial interest. For example, s. 19
would prohibit the Mayor from participating in any discussions or
votes concerning the collective bargaining agreement between the
spouse's union and the City. Other matters affecting the spouse's
financial interest include grievances or disciplinary matters
affecting the spouse, health benefits affecting all firefighters,
matters affecting seniority rights which will impact upon the
spouse, or matters involving lay-offs or retirement which affect
the spouse. EC-COI-92-21; see also, Commission Advisory No. 11
(Nepotism); EC-COI-90-1; In re DeOliveira, 1989 SEC 430. Section
19 also prohibits the Mayor from delegating to another those
functions which s. 19 bars the Mayor from performing. See
Commission Advisory No. 11
(Nepotism), footnote 8. Thus, we must
consider whether applicable statutes or the City Charter provide
a substitute official to perform these duties in place of the
Mayor.


Mayor Acting As "Employer" Under G.L. c. 150E


Under G.L. c. 150E, s. 1, the "employer" for purposes of
collective bargaining is the city itself, acting through its
"chief executive officer" or a designated representative. In
Labor Relations Commission v. Natick, 369 Mass. 431, 438-441
(1976), the Court held that a city has but one chief executive
officer, and that it is that official who must make a
"designation of a bargaining representative" to act in his place.
Here, however, the chief executive officer is the Mayor, who is
prohibited by s. 19 from designating a bargaining representative
to negotiate the firefighter's contract in the Mayor's stead.
Thus, Chapter 150E does not provide for a substitute in this
case.

The City Charter also does not make any provision for
another official to act where the Mayor is disqualified by
conflict of interest. Rather, by its terms, the provision calling
for an acting mayor is operative only in the case of the Mayor's
illness or absence from the City.

Likewise inapplicable here are G.L. c. 43, s. 26, which
provides that the president of the city council shall perform the
duties of mayor "[i]f the mayor is absent or unable from any
cause temporarily to perform his duties", and G.L. c. 39, s. 5,
which provides that the president of the board of aldermen,

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"upon the death, resignation, absence of the mayor, or his
inability to perform the duties of his office", shall perform the
duties of mayor. It is well settled that these statutes are
applicable "only in matters not admitting of delay." Dimick v.
Barry
, 211 Mass. 165, 166-167 (1912). At a minimum, therefore,
there must be a "necessity so importunate that it cannot be
resisted with reason." Id. (examples cited by the court include
"impending disaster, threatened disorder, public pestilence,
devastation by flood or fire", or matters where time is of the
essence, such as in the case of an impending election); see also 5
Op. Att'y Gen
. 537, 538 (1920) (statute providing for an acting
mayor in matters "not admitting of delay" is "merely a designation
of an employee to discharge the duties of the office in the case of
emergency"; there must be "an exigency requiring action by the
acting mayor"). There is no evidence of exigent circumstances in
the present case.[5] Finally, these statutes provide that the
acting mayor shall have the power to perform all of the duties of
the office, not merely those which the mayor is disqualified to
perform by reason of conflict, as would be the case if these
statutes were applied here. See, Ryan, supra. Thus, lacking a
substitute official to perform these particular duties of the
Mayor, we must consider whether this is an appropriate case to
invoke the rule of necessity.

As we recognized in EC-COI-93-13, "[t]he 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. 133, 138 (1976) (suggesting that the
rule would apply in proper circumstances where public officials
could not participate due to G.L. c. 268A). The facts of this
case are analogous to those presented in Mayor of Everett v.
Superior Court
, 324 Mass. 144 (1949). In that case, license
commissioners challenged the mayor's order removing them from
office, citing certain personal remarks of the mayor said to
indicate his bias or prejudice against them. The lower court
found that the mayor was indeed biased and overturned the mayor's
order. The Supreme Judicial Court, however, noted that the
legislature conferred upon the mayor the power to remove the
city's license commissioners, and that it made no provision that
any other officer could act in case the mayor was disqualified by
reason of bias or prejudice. As a result, that court, citing
Moran, held that the mayor could invoke the rule of necessity to
participate in the removal of the license commissioners. See also
Graham, supra
(recognizing Mayor of Everett as a case in which
the rule of necessity has been applied).

Here, similarly, the legislature has conferred upon the
Mayor the sole power to act as the city's bargaining
representative with regard to the firefighter's contract. Since
neither G.L. c. 150E, the City Charter, nor any other statute
provides that another official may act if the Mayor is
disqualified by conflict of interest, the rule of necessity
may be invoked in this case. However, we believe that the rule of
necessity ought to be invoked solely to permit the Mayor to
select another as the Mayor's "designated representative". G.L.
c. 150E, s. 1. In this way, the City may carry out its obligation
to bargain collectively with the Union "free of suspicion or
suggestion of action motivated in part by private interest."
Albano v. Selectmen of South Hadley, 341 Mass. 494, 496
(1960).[6]

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[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] "Official participation includes ... action to approve,
disapprove, recommend or decide a particular matter, for example,
by voting on it or through discussion of it." EC-COI-87-25.

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

[5] Moreover, G.L. c. 39, s. 5 is applicable only where the
city charter does not provide otherwise. Ryan v. Boston, 204
Mass. 456, 459 (1910). In this case, the City Charter does
contain a provision which expressly addresses the mayor's absence
or inability to perform the duties of her office. Thus, G.L. c.
39, s. 5 appears to be inapplicable here in any event.

[6] You also ask us to consider whether the rule of
necessity would apply to actions of the Mayor as the City's
"appointing authority", under G.L. c. 31, with regard to

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the pending grievance. However, you are unable to tell us what role
the Mayor may play in the matter. This Commission renders
opinions "only when presented with specific questions relating to
potential conflict situations which exist or are imminent. It
does not rule on abstract, hypothetical questions." EC-COI-79-56.
Since we lack specific facts concerning actions the Mayor may be
called upon to take as appointing authority, any answer we may
give as to whether invocation of the rule is required so that "an
important public decision would [not] be frustrated", EC-COI-93-
3
, would be completely hypothetical. Thus, we decline to decide
this question at this time. You may contact this Commission for
further advice when you have specific facts.


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End Of Decision