July 14, 1992

FACTS:


Page 422


You are a newly elected member of the Prudential Committee
(Committee) of a Fire District (District). Your son is a full-time
firefighter employed by the District. Full-time firefighters are
members of a collective bargaining unit (union) and the Committee
engages in collective bargaining with the union on behalf of the
District. The collective bargaining agreement contains terms and
conditions of employment for the firefighters, including salaries
and working conditions.


QUESTION:

Given your son's employment as a firefighter, how will G.L. c.
268A affect you as a Committee member?


ANSWER:


As explained below, you may not participate in any matter in
which your son has a financial interest.


DISCUSSION:


The Commission has previously concluded that districts
supported by public funds to provide municipal services, although
not specifically identified as municipal agencies under G.L. c.
268A, 1(f), are municipal agencies for purposes of the conflict of
interest law. See EC-COI-87-2. Therefore as a member of the
District's Prudential Committee, you are a municipal employee.[1]
See McMann v. State Ethics Commission, 32 Mass. App. Ct. 421
(1992).

Section 19 prohibits a municipal employee from
participating[2] in a particular matter[3] in which he or an
immediate family member[4] has a direct or reasonably foreseeable
financial interest.

In your case, this section will prohibit you from taking any
action as a Committee member concerning the collective bargaining
agreement in question because that agreement will determine the
salaries and working conditions for full-time firefighters of the
District, including your son. You must, therefore, refrain from
participating in any discussions or votes concerning the collective
bargaining agreement, or any matter, which will affect your son's
financial interest. This is so even if the

Page 422

matter also affects some or all other District employees as well.
Other such matters might include, for example, disciplinary matters
affecting your son, health benefits affecting full-time
firefighters, matters affecting seniority rights which will impact
upon your son, or matters involving lay-offs or retirement which
affect your son. See Commission Advisory No. 11 (Nepotism);
EC-COI-901, In re DeOliveira, 1989 SEC 430. You are best advised to
leave the room when such matters come before the Prudential
Committee, making sure that your abstention is recorded in the
minutes of the meeting. See Graham v. McGrail, 370 Mass. 133
(1976). This section will not, however, prohibit you from acting on
matters of a general nature affecting the District, if such matters
do not affect your son's financial interest (such as a contract for
a new fire truck or other equipment, for example).

The standards of conduct found in 23 also apply to you as a
municipal employee. That section prohibits you from using your
position on the Committee to obtain unwarranted benefits for
yourself or others. 23(b)(2). It would, for example, prohibit you
from passing on to your son or any other person confidential
information concerning the Committee's negotiations with the union.
23(c). In addition, before acting on those "general" matters in
which your son has no financial interest, you should make a full
public disclosure concerning your son's position with the District
in order to dispel any "appearance" of a conflict which might arise
under 23(b)(3). You should file your written disclosure with the
District Clerk or in another appropriate public manner.

In summary, you must abstain, as a Committee member, on all
matters which affect your son's financial interest, including the
collective bargaining agreement in question.[5]

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


[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, 1 (g).

[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, 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, 1(k).

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

[5] You should consider the possibility that you will have to
abstain on so many matters that your service on the Committee might
become impracticable. However, that determination must be made by
you after considering the scope of your duties and activities as a
member of the Committee.

End Of Decision