May a Director of a Regional Planning District Commission simultaneously serve as an Administrator of a Regional Transit Authority?
How the conflict of interest law applies generally to an assistant town counsel's private practice of law.
- A member of the city council may initiate a lawsuit against the council in connection with a prior council's termination of his employment with the city.
- A municipal treasurer who has been named as an unpaid corporator of a savings bank is prohibited by section 19 from official participating in matters affecting the board's financial interests, and from acting as the ban's agent in connection with matters in which the municipality is a party or has a direct and substantial interest.
- An attorney may serve as special municipal counsel representing a board of health in a state lawsuit.
- A municipal board of health member who owns a local restaurant may not participate officially on matters which concern either the restaurant, the restaurant's competitors, or the member's financial interest. Section 17 also prohibits the board member from installing septic systems locally as this work is presumptively in relation to the septic permit, a matter in which the town has a direct and substantial interest. (legislation passed in 1988 to allow this in certain cases)
- By virtue of Chapter 809 of the Acts of 1981, a town wiring inspector is not prohibited by §17 from engaging in a private electrical contracting business in the same community.
- A part-time assistant city solicitor may not represent, in his private capacity, an applicant in connection with matters pending in the city solicitor's office. His private corporation may enter into a contract with the city redevelopment authority since his financial interest qualifies for an exemption under section 20(c).
- A town counsel may not privately represent a selectman in defense of an enforcement action by the Commission, since the town will inevitably have a direct and substantial interest in the outcome of the Commission proceedings
- An assistant city solicitor may not privately represent a criminal defendant arrested by the city police department in connection with a motion to suppress hearing, because the city has a direct and substantial interest in the outcome of the hearing.
- A part-time building inspector who is a municipal employee is prohibited under §17 from performing privately paid carpentry work in his town which requires a permit from or is subject to inspection or approval by a town agency. This opinion is based on principles discussed in opinion EC-COI-87-31.
- Members of the Massachusetts Museum of Contemporary Art (MOCA) Commission are considered municipal employees of the City of North Adams because the Commission is an agency of the City. A MOCA Commission member is thus subject to sections 17, 19, and 23 with respect to his private positions as adjunct professor at Williams College and as Director of the Guggenheim Foundation.
- A member of a municipal authority may retain her investment as well as a limited partner status is a project that is pending before her municipal authority, provided that her investment is lass than 1% of the entire project and she abides by the rules of sections 19 and 20.
- For purposes of 268A, a municipal employee retains his municipal status during the time he is collecting workman's compensation benefits. In determining whether an employee continues to hold employment within a municipal agency, the Commission will examine the characteristics of the relationship between the employee and the agency, including: whether a previously compensated employee continues to receive compensation from the municipal agency; whether the employee continues to receive the same retirement, insurance and other benefits available to municipal employees; whether the parties have a reasonable expectation that the employee will return to his municipal position; and what actions have been taken by the parties to terminate the employment relationship.
- Member's of the Martha's Vineyard Land Bank are considered employees of an independent municipal agency for the purposes of G.L. c. 268A, and members of local advisory boards are municipal employees under G.L. c. 268A. The opinion addresses the limitations which G.L. c. 268A imposes on the official and private activities of these employees. NOTE: This opinion has been overturned in 92-40
- The superintendent of a regional school district who also owns a software company may donate to the district a software package, subject to certain restrictions. In particular, he may not officially participate in the matter as superintendent nor may he act as his company's agent in its dealings with the district.
- A City Councilor may also be employed by a "community action agency," subject to the usual limitations on a regular municipal employee's outside employment, because a community action agency is not a "municipal agency" under G.L. c. 268A.
- A municipality may, through the adoption of a by-law, permit a special town counsel simultaneously to represent private parties in connection with matters in which the municipality is also a party or has a direct and substantial interest, notwithstanding the restrictions of G.L. c. 268A, section 17, and Town of Edgartown v. State Ethics Commission, 391 Mass. 83 (1984). The by-law would make the arrangement "as provided by law for the proper discharge of official duties" within the meaning of section 17. The by-law in question required that the town's regular counsel consult with the town's Selectmen concerning whether the dual representation advanced the interests of the town. The by-law also required that the regular town counsel supervise the special town counsel's dual representation.
- A state environmental police officer may also be appointed to an unpaid municipal conservation commission, but he may not act as that commission's agent in relation to any particular matter within his state agency's purview. In effect, he may also not perform his state environmental police duties within that town.
- The Martha's Vineyard Collaborative is a regional municipal entity under G.L. c. 268A and, as such, is an instrumentality of each member municipality. With this opinion, the Commission will no longer consider regional entities to be "independent municipal agencies" under the conflict law and adopts the reasoning of the Massachusetts Appeals Court in McMann v. State Ethics Commission, 32 Mass. App. Ct. 421, 428 (1992). A member of the Chilmark Finance Committee may serve as the Town's designee on the Collaborative and may, under section 19, participate in Collaborative matters in which the Town has a financial interest because he is representing the Town's interests in both positions.
- Legal counsel for a municipal housing authority may pursue a lawsuit against a state agency where legal counsel would be representing the authority in an attempt to enforce the authority's contractual rights. Legal counsel may also represent an individual member of the authority on a limited basis without violating section 17(c), as long as the lawsuit serves the authority's distinct institutional interest and any aspects of the lawsuit that are of specific concern to the individual member and not to the agency as a whole are handled by the member's private legal counsel.
- In the circumstances described, an alternate member of a local board of appeals (the board) does not have official responsibility for matters under the Board's jurisdiction unless and until he is designated to serve on the board by its chairman. Accordingly, an alternate board member may appear before other town boards on a particular matter involving the board of appeals if he has not served on the board when that matter was pending before it.
- Under recent case law and Commission precedent, this opinion reviews and modifies some of the Commission's conclusions in EC-COI-90-2. The Martha's Vineyard Land Bank is an instrumentality of each of the member municipalities and is a "municipal agency" for conflict law purposes. Land Bank Commissioners and Town Advisory Board members who are also private real estate brokers are subject to the restrictions contained in sections 17, 19, 20 and 23.
- A Town Selectman, who is also part owner of an engineering and surveying business, is prohibited by section 17(a) from receiving compensation related to the preparation of documents which will be submitted to Town agencies. The Selectman is also prohibited, by section 17(c), from placing his professional seal on documents which will be submitted to Town agencies, or otherwise acting as agent for clients appearing before Town boards.
- Members of school councils, established by the Education Reform Act of 1993, are considered "municipal employees." Elected members of school committees may also serve on school councils without violating sections 17(c), 19 or 20. Note that, in the instance where a school committee member is appointed rather than elected, the member would have to receive a section 20(b) or section 20(d) exemption in order to also serve as a member of a school council. Principals and teachers may serve as members of school councils without violating section 20.
- Non-profit corporations known as Home Care Corporations which contract with the Executive Office of Elder Affairs are not public instrumentalities for the purposes of the conflict of interest law. The Commission's conclusion is based on the application of its traditional four-part jurisdictional test; moreover, the Commission took into consideration, for the first time, whether the Commonwealth functioned as an "owner" of the entities, or whether the Corporations involved private interests.
- An elected member of a regional board, who is also an attorney in private practice, may represent private clients before municipal boards and commissions (other than the one he serves on) in the municipality where selectmen have voted to designate regional board members as "special municipal employees". He may not represent private parties before municipal boards in the municipality which has not granted the regional board members "special" status.
- An elected municipal official, who also serves as a savings bank "corporator", is not required to abstain from official actions affecting the financial interests of the savings bank. G.L. c. 268A section 19 generally prohibits a municipal employee from taking any official action affecting the financial interests of an organization for which the municipal employee serves as a director or officer. However, the duties and powers of a bank "corporator" are not analogous to those of an officer or director, and therefore the general prohibition is not triggered.
- Using a four-factor jurisdictional test, the Commission finds that a Downtown Association, initially funded by an Executive Office of Communities and Development Downtown Partnership Program grant awarded to the city, is a private entity -- not a municipal agency -- for purposes of the conflict law. A member of the city's Historic Commission, who serves ex officio as a member of the Downtown Association's board, will be subject to the restrictions of G.L. c. 268A, sections 19 and 23 in the performance of her official duties. Also, her actions as a Downtown Association board member will be subject to the restrictions of G.L. c. 268A, section 17, unless the City Council determines that her municipal duties include representation of the Downtown Association.
- A former Chairman of a town Zoning By-Law Study Committee, who is a lawyer in private practice, may serve as paid counsel to the Committee. However, his private law practice will be subject to the restrictions of G.L. c. 268A, sections 17, 18, and 23, and his official actions subject to the restrictions of G.L. c. 268A, sections 19 and 23.
- A member of a municipal board of assessors may conduct private appraisals of property in the town.
- A part-time intermittent police officer may work as a security guard in the same city where they serve as a police officer as long he is not on active police duty.
- A call firefighter who is not a special municipal employee may not, in his private capacity, design fire protection systems that must be approved by the fire department. A full-time firefighter may not, in his private capacity, perform oil burner work in the town because the fire department is the permitting authority for the work.
- A Review Board member who is a special municipal employee is prohibited from working privately in connection with landscape plans he reviewed or which were reviewed by the Review Board, even if the member had no expectation that he would do the work at the time he reviewed the plan or it was pending before the board.
- Section 17 does not allow a city councilor to use the exemption that allows a municipal employee to apply on behalf of and receive compensation from a private party to obtain a building, electrical, wiring, plumbing, gas fitting or septic system permit because the City Council regulates the activities of the permit-granting agency.
- Section 17(a) of G. L. c. 268A prohibits a municipal employee from receiving private compensation to perform preparation and maintenance tasks required by a municipal permit in which the municipality is a party and in which the municipality has a direct and substantial interest, unless the compensation is authorized by a municipal by-law or other law.
EC-COI-90-15 file size 1MB
Section 17 of the conflict of interest law does not prohibit a plumbing inspector who is compensated on a per-inspection basis from performing private plumbing work in the same town where the private work is permitted by G.L. c. 142, section 12, provided that the plumbing inspector complies with c. 132, section 12.