October 8, 1992

FACTS:


You are an elected City Councillor. The City Council will soon
be voting to fill a vacancy in the office of City Clerk. You wish
to be a candidate for this position.


QUESTION:


What limitations does G.L. c. 268A establish for you?


ANSWER:


1. The City Council may not elect you as City Clerk until
thirty days after you cease to be a Councillor.

2. While you remain a Councillor, you may not participate,
even informally, in matters related to your City Clerk candidacy.


DISCUSSION:


As a Councillor, you are a "municipal employee" under the
state conflict of interest law. G.L. c. 268A, s. 1(g). Your request
raises issues under the following sections of the conflict of
interest law.


1. Section 21A


Section 21A of G.L. c. 268A provides in relevant part:

[N]o member of a municipal commission or board shall be
eligible for appointment or election by the members of
such commission or board to any office or position under
the supervision of such commission or board. No former
member of such commission or board shall be so eligible
until the expiration of thirty days from the termination
of his service as a member of such commission or board.

Since you wish to seek election by the City Council's members
as City Clerk, whether s. 21A applies will depend on (a) whether
the City Council is a "municipal commission or board" and (b)
whether the City Clerk is "under the [Council's] supervision. n


(a) The City Council is a "municipal commission or board."


The term "municipal commission or board" is not explicitly
defined in G.L. c. 268A or elsewhere in the General Laws. We
therefore look to "the common and approved usage of the language.
" G.L. c. 4, s. 6 (Third). See McMann v. State Ethics Commission,
32 Mass. App. Ct. 421, 425 (1992).

Relevant definitions in Webster's Ninth New Collegiate
Dictionary (1987) indicate that a "commission" is "a government
agency having administrative, legislative, or judicial powers, "
and similarly that a "board" is "a group of persons having
managerial,

Page 446

supervisory, investigatory, or advisory powers." Certainly, a City
Council, the municipal legislative body, easily fits within these
terms.

Other provisions of the General Laws refer to a city council
as a "board." G.L. c. 4, s. 7 (First); c. 39, s. 1. Indeed, some
Massachusetts cities we the term "board of aldermen" to refer to
their city councils, and the statutes just cited treat the two
terms as interchangeable. See also G.L. c. 50, s. 1 (defining
"aldermenn). In other contexts, we have held that the substance of
an arrangement, rather than its name, is controlling, considering
the broad remedial purposes of G.L. c. 268A. See EC-COI-89-5;
83-81, 82-68; 80-43
(substance of relationship determines whether
partnership exists).

In an analogous situation, the Supreme Judicial Court recently
considered whether the state open meeting law, G.L. c. 30A, s. 11A,
applies to the state executive Council as a "Governmental body."
Pineo v. Executive Council, 412 Mass. 31, 34-37 (1992). The statute
defined that term as "a state board, committee, special committee,
subcommittee or commission, however created or constituted within
the executive . . . branch of the commonwealth . . . ." The court
first applied this statutory definition to the Council as an
executive "board," citing Scullin v. Cities Service Oil Co., 304
Mass. 75, 78-79 (1939). But the court then held that this
application violated the constitutional separation of powers,
because the Legislature had no power to regulate the Council's
procedures. Here, where no such constitutional issue arises, the
Pineo court's analysis suggests that the term "board" unambiguously
applies to this "Council," since the court presumably would have
resolved any ambiguity in favor of the statute's constitutionality,
according to the usual rule of statutory construction. See Weld for
Governor v. Director of the Office of Campaign and Political
Finance
, 407 Mass. 761, 769 (1990).

Finally, applying s. 21A to every multi-member municipal body
is consistent with the statute's history and purpose.[1] See
McMann
, 32 Mass. App. Ct. at 427 (G.L. c. 268A should be read to
effectuate fully its comprehensive purpose "to strike at corruption
in public office, inequality of treatment of citizens and the use
of public office for private gain"). Section 21A -- and its state
and county counterparts, s. s. 8A and 15A -- have their roots in
the common law doctrine of incompatibility of offices. In Gaw v.
Ashley
, 195 Mass. 173 (1907), the Supreme Judicial Court first
applied this doctrine to hold that a municipal board could not
appoint its own member to a position under the board's supervision.
While the court seemed chiefly concerned that the appointee would
continue to sit on the board, and thus that his present colleagues
would be supervising his performance, the court phrased the
prohibition more generally, as prohibiting the appointment itself.
Soon after the court again applied this prohibition, in Attorney
General v. Henry
, 262 Mass. 127, 132 (1928), the Legislature
enacted a narrow exception, allowing the town meeting to approve an
otherwise prohibited appointment.[2] St. 1929, c. 36, enacting G.L.
c. 41, s. 4A. In Mastrangelo v. Board of Health of Watertown, 340
Mass. 491, 492 (1960), the court later held that this statute
otherwise codified the common-law rule, and squarely rejected an
argument (based on the reasoning of Gaw and its progeny) that the
basic prohibition so codified should not apply if the member
appointed resigned from the board immediately afterward.

Finally, in Starr v. Board of Health of Clinton, 356 Mass.
426, 428-29 (1969), the court again applied G.L. c. 41, s. 4A to
prohibit a municipal board from appointing its own present member
to a position under the board's supervision. The court noted the
Legislature's enactment, subsequent to the events at issue there,
of G.L. c. 268A, s. 21A (by St. 1967, c. 887, s. 2).[3] The court
commented: "The legislative purpose behind the enactment of [s.
21A] seems to confirm the purpose which was contained in G.L. c.
41, s. 4A." 356 Mass. at 429 n.2.

The point of this history is that nothing in the rationale of
the original common-law rule suggests limiting its application to
any particular multi-member government bodies, however named or
constituted. Since the Supreme Judicial Court has said that G.L. c.
41, s. 4A intended to codify this rule (with an exception
irrelevant here), and that G.L. c. 268A, s. 21A sought to "confirm"
that earlier statute, it follows that s. 21A should be read to
apply to all multi-member municipal bodies. As explained above,
this result also "take[s] into account the ordinary and approved
usage of the statutory language . . . and the purpose of the
[conflict] law . . . ." McMann v. State Ethics Commission, 32 Mass.
App. Ct. 421, 428 (1992). We therefore conclude that a City Council
is a "municipal commission or board" for the purpose of s. 21A.


(b) The City Clerk is "under the [Council's] supervision."


Page 447

The city charter provides that the City Clerk shall be the
clerk of the City Council. The Clerk is to give notice of all
meetings of the City Council to its members and to the public, keep
the journal of its proceedings, and perform such other duties as
may be assigned by the charter, by ordinance or by other vote of
the City Council. Furthermore, the City Clerk, as an "officer
appointed or elected by the city council[,] may be removed by said
council for cause . . . . " G.L. c. 39, s. 8A.

This relationship between the Council and the Clerk is the
same as that described in the cases, including Gaw, Henry,
Mastrangelo, and Starr, that prefigured s. 21A; it includes
detailed direction and oversight of activities, amounting to an
agency relationship, and (at least here) the power to discharge. We
conclude that the City Clerk is "under the supervision of" the City
Council for the purpose of s. 21A.

Therefore, you will not be eligible for election by the
Council as City Clerk for as long as you remain a Councillor and
for thirty days thereafter. No vote to elect you is valid unless it
occurs more than thirty days after your service as a Councillor
ends.


2. Sections 19 and 23(b)(2)


Even if you eventually resign from the Council in order to
seek election as City Clerk more than thirty days later, other
relevant provisions of G.L. c. 268A will apply to you for as long
as you do remain a Councillor. Section 19 prohibits a municipal
employee from participating in any particular matter in which he
(among others) has a financial interest. Section 23(b)(2) prohibits
a public employee from using his official position to obtain
unwarranted privileges of substantial value for himself.

Together, these provisions prohibit you from participating,
even informally, in matters related to your City Clerk candidacy.
For example, if the Council were considering a statement of
qualifications, notice, advertisement, or procedural rules for the
City Clerk's position, you could not participate at all. Note that
participation includes not only voting but discussion, including
informal lobbying of other Councilors. See G.L. c. 268A, s. 1(j).
When any such matter comes before the Council, therefore, in the
words of the Supreme Judicial Court, "Ordinarily, the wise course
for one who is disqualified from all participation in a matter is
to leave the room." Graham v. McGrail, 370 Mass. 133, 138 (1976).

Finally, these provisions prevent you from using your present
position as Councillor to obtain other Councillors' later favorable
consideration of your City Clerk candidacy. See Craven v. State
Ethics Commission
, 390 Mass. 191, 202 (1983) (state legislator
violated G.L. c. 268A, s. 6, 23 by pressuring a state agency to
award grant that would benefit him and his brothers).

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

[1] We disavow any contrary suggestion in EC-COI-83-84 n.3 or
EC-COI-82-156 n.4. See note 3 infra.

[2] For cities, the prohibition is codified in G.L. c. 39, s.
8, which provides in relevant part: "No member of the city council
shall, during the term for which he was chosen, either by
appointment or by election of the city council . . ., be eligible
to any office the salary of which is payable by the city." Whether
this statute applies to your situation is beyond our jurisdiction.
See G.L. c. 268B, s. 3(g). Even if it does independently prohibit
your candidacy for City Clerk while you are a Councillor, Rugg v.
Town Clerk of Arlington
, 364 Mass. 264, 268 (1973) suggests that it
would allow your election as City Clerk immediately after your
resignation as a Councillor. Thus, we would still need to decide
whether the thirty-day waiting period of s. 21A applies to you as
well. (For similar reasons, we need not discuss the application of
G.L. c. 268A, s. 20 to this situation.)

[3] The state counterpart of s. 21A had been enacted earlier
by St. 1964, c. 314. We have carefully examined the legislative
history of both the 1964 and 1967 statutes, and find nothing
in either to support any different result. Indeed, what emerges is
legislative faithfulness to the rule's previous terms. Thus, the
Legislature considering the 1964 bill (S. 466) first accepted a
committee report reducing the proposed new waiting period from two
years to thirty days, 1964 Sen. J. 790 (Apr. 2), and then rejected
a Senate amendment limiting the rule's application to salaried
positions. Compare id. at 820 (Apr. 6) with 1964 House J. 1446
(Apr. 8). The only substantive legislative change made in the 1967
bill extending the 1964 state prohibition to county and

Page 448

municipal boards (H. 654) was to incorporate from G.L. c. 41, s. 4A
the exception for town meeting approval. 1967 Sen. J. 2418-19 (Dec.
12).

Page 449

End Of Decision