FACTS:
You are a school teacher and a member of the Board of
Selectmen (Board) in the Town of XYZ (Town). You have complied
with the provision of the Selectman's exemption to G.L. c. 268A,
s. 20 to hold both posts simultaneously [1].
The Town has a Town Manager form of government and the Board
is the appointing authority for the Town Manager. As the
appointing authority, the Board also negotiates the terms of the
Manager's contract, and evaluates his performance.
Recently the education reform bill was enacted into law at
the state level. This law established that in towns with a Town
Manager form of government, the Town Manager is to act as a
voting member of the collective bargaining team for the School
Department in the Town. Since your Town Manager is currently
involved in determining the wages, hours, and terms and
conditions of employment for the School Department employees
(including yourself), you wish to know whether as a Selectman you
may evaluate the Manager and re-negotiate any aspect of the
Manager's contract.
QUESTION:
Can a Selectman, who is also a teacher, evaluate the Town
Manager's performance or re-negotiate his contract, where the
Manager is negotiating on behalf of the School Department?
ANSWER:
No, unless the re-negotiation of the Manager's contract or
the evaluation involves only incidental terms or conditions of
employment, such as retirement benefits, overtime compensation
and the like.
DISCUSSION:
Section 19
Section 19 prohibits municipal employees from participating
[2] in particular matters [3] in which they or their immediate
family members [4] have a financial interest. See, e.g. EC-COI-
89-19. The financial interest must be "direct and immediate, or
at least reasonably foreseeable." EC-COI-84-123; 84-98; 86-25;
84-96. Participation includes discussion and
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informal lobbying of colleagues, as well as voting (binding and
non-binding). EC-COI-92-30. Under s. 19, if any financial
interest is implicated, no matter how small, or whether the
affect is positive or negative, participation is impermissible.
EC-COI-84-96.
A contract is a particular matter for purposes of the
conflict of interest law, as is the decision whether or not to
re-negotiate a contract. G.L. c. 268A, s. 1(k). Moreover,
evaluating an employee's performance or re-negotiation of a
contract constitutes participation in a particular matter.
Thus the issue here is whether, as a member of the School Department,
you will have a reasonably foreseeable financial interest in the
Manager's contract or in a decision to re-negotiate his contract
which would prevent you from participating in either a re-
negotiation of the Manager's contract or an evaluation of his
performance.
In EC-COI-86-25, the Commission held that a City Council
member who was also an employee of the Massachusetts Teachers
Association (MTA) could not appoint a School Committee member,
where the School Committee was in negotiation with the MTA's
local affiliates, as the MTA had a financial interest in the
selection of the School Committee member. Similarly, we conclude
here that if the proposed re-negotiation of the Manager's
contract contemplates the Manager's re-appointment or conditions
upon which he can continue employment, then you may not
participate in such re-negotiation since it will determine
whether or not the Town Manager continues to participate in the
union negotiations, which in turn will affect your own financial
interest. See Advisory No. 11 (Nepotism); EC-COI-86-25.
Conversely, you will not have a financial interest in the
mere evaluation of the Manager's performance (where re-
appointment is not at issue), or the re-negotiation of the
incidental terms or conditions of the Manager's continuing
employment (e.g. retirement benefits, overtime compensation and
the like). Thus, you may participate in negotiations
contemplating incidental terms or conditions of the Manager's
employment under s. 19.
Section 23
To the extent that s. 19 allows you to participate in the
evaluation of the Town Manager or the re-negotiation of his
contract, you will be required to comply with G.L. c. 268A, s.
23. Section 23 establishes standards of conduct for all public
employees.
Section 23(b)(2) prohibits a public official from using his
position to secure an unwarranted privilege of substantial value
[5] which is not properly available to similarly situated
individuals. Section 23(b)(2) requires that you apply objective
standards to any matters involving the Manager, and that you not
allow the fact that he will be negotiating with the School
Department to affect your judgment. See EC-COI-92-32; 89-23; 89-
3.
Additionally, s. 23(b)(3) prohibits a public employee from
acting in a manner which would cause a reasonable person to
conclude that any person can improperly influence or unduly enjoy
his favor in the performance of his official duties, or that he
is likely to act or fail to act as a result of kinship, rank,
position or undue influence of any party or person. This is the
so-called "appearances" section of c. 268A. The appearance of a
conflict of interest can be dispelled by making a full written
disclosure of the relevant facts to the employee's appointing
authority, or if no appointing authority exists, by making a
public disclosure. A s. 23(b)(3) disclosure is necessary
"whenever there exists a potential for serious abuse of a public
position by a public employee. This potential for serious abuse
need not involve any financial interest on the part of the other
party." EC-COI-92-3 (emphasis in original). Thus, to the extent
that s. 19 does not prohibit your participation in the evaluation
of the Town Manager or re-negotiation of his contract, you will
be required to file a written disclosure with the Town Clerk
concerning your interest as an employee of the school department.
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[1] Section 20 prohibits a municipal employee from having a
financial interest, directly or indirectly, in a contract made by
any municipal agency of the same city or town, in which the city
or town is an interested party, unless an exemption applies. The
propriety of holding multiple municipal positions is addressed by
s. 20. See Commission Advisory No. 7. The Selectmen's exemption
allows a municipal employee to simultaneously hold the position
of Selectman, and allows the employee to perform the duties of or
receive the compensation provided for such
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office; provided, however, that the Selectman does not receive
compensation for more than one office or position held in a town;
provided, further, that no such selectman may vote or act on any
matter which is within the purview of the agency by which he is
employed or over which he has official responsibility; and,
provided further, that no such selectman shall be eligible for
appointment to any such additional position while he is still a
member of the board of selectmen or for six months thereafter.
[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.
[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
enactments 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.
[5] Anything valued at $50 or more is "of substantial
value." Commonwealth v. Famigletti, Mass. App. Ct. 584, 587
(1976); Commission Advisory No. 8.
End Of Decision