September 10, 1992

FACTS:


You are currently employed full-time as a police officer in
the Division of Law Enforcement of the state Department of
Fisheries, Wildlife and Environmental Law Enforcement (the
Department). See G.L. c. 21, s. 6. It is the Department's (and
your) duty "to enforce all penal laws which it is the duty of any
agency within the executive office of environmental affairs to
enforce . . . ." Id. s. 6A. One such agency is the Department of
Environmental Protection (DEP), G.L. c. 21A, s. 7, which enforces
the state Wetlands Protection Act, G.L. c. 131, s. s. 40, 40A (the
Act). Violation of the Act is punishable by a criminal fine (or a
DEP civil penalty, see G.L. c. 21A, s. 16) of not more than $25,000
or by imprisonment for not more than two years. G.L. c. 131, s. 40,
last paragraph. Therefore, you inform us that your duties as an
environmental police officer include enforcing the Act.

Page 432


You are also a resident of the Town of Erving, and wish the
Selectmen to appoint you as a member of the Town's unpaid
Conservation Commission. See G.L. c. 40, s. 8C. The Conservation
Commission has primary responsibility for enforcing the Act within
the Town by issuing "orders of conditions," subject to
administrative appeal seeking a superseding order of conditions by
DEP. G.L. c. 131, s. 40.


QUESTION:


May you serve as an unpaid Conservation Commission member
while remaining employed as an environmental police officer?


ANSWER:

Yes, subject to the following limitations in each position.


DISCUSSION:


As an environmental police officer, you are a "state employee"
for the purposes of the state conflict of interest law. G.L. c.
268A, s. 1(q). If you were appointed as a Conservation Commission
member, you would also be a "municipal employee" in that capacity.
Id. s. 1(g) (defining "Municipal employee" to include "a person .
. . holding an office . . . in a municipal agency . . . by
appointment . . . without compensation . . . on a . . . part-time
. . . basis").


1. Restrictions as a Conservation Commission member (s. 4).

(a) The state/municipal "purview" limitation.


We must first decide, in effect, whether you may hold both
positions simultaneously at all. The answer turns on the proper
application of G.L. c. 268A, s. 4,[1] and especially of the
following provision of its second-to-last paragraph: "No such
elected or appointed [municipal] official may vote or act on any
matter which is within the purview of the [state] agency by which
he is employed . . . ." Read in isolation, this provision might
seem to prohibit you from virtually all activities as a
Conservation Commission member, since that Commission's principal
responsibility, enforcement of the Act within the Town, is also
entirely within your state Department's "purview." See
EC-COI-92-22
. For the following reasons, however, we reject such a
broad application of the s. 4 "purview" limitation to an unpaid
municipal official, in favor of a narrower application limited to
situations when you are "acting as agent" for the Town or its
Conservation Commission.

We begin with the recognition that a statute is to be
interpreted "according to the intent of the Legislature ascertained
from all its words construed by the ordinary and approved usage of
the language, considered in connection with the cause of its
enactment, the mischief or imperfection to be remedied and the main
object to be accomplished, to the end that the purpose of its
framers may be effectuated." O'Brien v. Director of DES, 393 Mass.
482, 487-88 (1984) (quotations and citations omitted). See
EC-COI-92-17; 92-6
. Thus, we first examine "all [the] words" of
G.L. c. 268A, s. 4.

For present purposes, s. 4 contains two distinct operative
restrictions on a state employee's outside activities. Section 4(a)
generally prohibits a state employee from receiving compensation
from anyone other than the state in relation to any particular
matter in which the state is a party or has a direct and
substantial interest. In your role as a Conservation Commission
member, s. 4(a) will not restrict you at all, because you will not
receive any compensation in that position. In addition, however, s.
4(c) prohibits a state employee, otherwise than in the proper
discharge of his official duties, from acting as agent or attorney
for anyone in connection with any particular matter in which the
state is a party or has a direct and substantial interest.

The "purview" limitation quoted above appears in s. 4 as part
of the "municipal exemption," constituting the statute's
second-to-last paragraph. That paragraph reads in its entirety:

This section shall not prohibit a state employee from
holding an elective or appointive office in a city, town
or district, nor in any way prohibit such an employee
from performing the duties of or receiving the
compensation provided for such office. No such elected or
appointed official may vote or act on any matter which is
within the purview of the agency by which he is employed
or over which such employee has official responsibility.

Thus, this "municipal exemption" removes state employees who
are also municipal officials from application of the operative
provisions of s. 4(a) and (c), but only to a limited extent. That
extent is specified in

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the exemption's second sentence, the "purview" limitation. The
language and structure of this paragraph indicates that the second
sentence is meant solely as a limitation on the exemption granted
by the first sentence. See EC-COI-92-6. See also 1990-1991 Op.
Mass. Att'y Gen. No. S
(June 12, 1991) (Legislature's placement of
new sentence in paragraph of statute indicates intention to limit
sentence's effect to that paragraph, rather than apply it to entire
section). Therefore, the "purview" limitation will apply to you as
an unpaid municipal official, not in all your Conservation
Commission activities, but only in the narrow circumstances when
you are acting as agent for the Commission or the Town.

This analysis is identical to that we have consistently
applied to three similar provisions of G.L. c. 268A, all of them
involving statutory limitations on exemptions. In each case, we
construed the limitation's scope as no broader than the underlying
operative provision from which the exemption is granted. Thus, in
EC-COI-87-36 and EC-COI-82-106, we concluded that provisions
limiting the "selectman's exemption" from the multiple office
holding restrictions of s. 20 did not apply to selectmen who were
special municipal employees and thus not in need of the exemption.
In EC-COI-92-6, we read a limitation on an exemption of certain
construction contractors and their personnel from the definition of
"State employee" in s. 1(q) as not applying to persons who were not
"State employees" initially under the primary statutory definition.

Most significantly, in EC-COI-92-8, we refused to apply this
very "purview" limitation to a state legislator who was also a
municipal official, because the legislator could rely instead on
the separate "legislator's exemption" from s. 4, containing less
restrictive limitations. In that opinion, citing EC-COI-87-36 and
EC-COI-82-106
, we reasoned, "Reliance on either exemption would
mean that any restrictions of the other exemption would not apply
. . . ." This analysis controls your case; since the main operative
provisions of s. 4 will restrict you as an unpaid Conservation
Commission member only to the extent that you are acting as agent,
you will be in need of the "municipal exemption," hence subject to
its "purview" limitation, only to the same extent.

The legislative history of the "municipal exemption" also
supports this conclusion. As we have previously recognized, most
recently in EC-COI-92-22, the Legislature enacted this exemption in
St. 1980, c. 10 to mitigate a harsh application of s. 4, which
would otherwise virtually prohibit state employees from holding
municipal office in some situations. Thus, immediately before this
exemption's enactment, this Commission had held that s. 4(a)
prohibited state employees from many activities as compensated
selectmen, because these activities would necessarily be in
relation to particular matters in which the state was a party or
had a direct and substantial interest. E.g., EC-COI-79-123; 79-3.
As discussed below, however, these opinions recognized that s. 4(c)
would prohibit uncompensated municipal officials only from acting
as agent in these state-related matters.

Thus, in order to adopt the broader reading of the "purview"
limitation, as prohibiting uncompensated municipal officials from
participating in all matters within their state agency's purview
even when they are not "acting as agent, n we would need to ascribe
to the Legislature that enacted St. 1980, c. 10 an intention to
restrict state employees' activities as uncompensated municipal
officials further in some respects than the main operative
provisions of s. 4 (specifically s. 4[c]), as construed in this
Commission's prior opinions. But nothing in the legislative history
of c. 10 indicates any intention to impose such further
restrictions. Rather, the sole declared purpose of c. 10, in the
words of both its title[2] and its emergency preamble, was to
ensure "that a person shall not be prohibited from holding an
elective or appointive office in a city, town or district because
such person is a state or county employee." The bills that resulted
in c. 10 (H. 1941 and H. 5893 of 1980) were advocated by municipal
officials as a response to EC-COI-79-123. In fact, both houses
amended the legislation to make its effective date retroactive to
the date this Commission issued that opinion, November 14, 1979.
See St. 1980, c. 10, s. 3; 1980 S. Jour. 88 (Feb. 21). In short,
the c. 10 legislative history, very much like that we examined in
EC-COI-92-6, is "unusually clear and consistent [and] discloses no
legislative purpose to impose further restrictions" on the exempted
persons.

Our narrow application of the "purview" limitation only to
uncompensated municipal officials' "agent" activities is also
consistent with our many prior opinions applying the "municipal
exemption. n EC-COI-92-22; 928; 90 8; 90-4; 88-21; 86-2; 85-68;
85-41; 84-120; 84-103; 83-26; 82-173; 82-164; 82-89; 82-52; 82-39
.
For, in virtually all these opinions, the municipal official was
compensated.[3] Thus, s. 4(a), the "municipal exemption," and its
"purview" limitation operated in these cases to

Page 434

prohibit the state employees from all participation as municipal
officials in matters within the purview of their respective state
agencies.


(b) Acting as agent.


For the reasons just discussed, s. 4(c), operating with the
"municipal exemption," will prohibit you, as an unpaid Conservation
Commission member, from acting as agent in connection with
particular matters within the purview of your state Department. It
remains to define how you might "act as agent" as a Conservation
Commission member.

In general, a public employee acts as agent for the purpose of
G.L. c. 268A when he or she speaks or acts on behalf of another in
a representational capacity. See Commonwealth v. Newman, 32 Mass.
App. Ct. 148, 150 (1992); Commonwealth v. Cola, 18 Mass. App. Ct.
598, 610-11 (1984), habeas corpus granted on other grounds sub nom.
Cola v. Reardon, 787 F.2d 681 (1st Cir. 1986). We have repeatedly
given as examples of acting as agent appearing before a government
agency on behalf of another, submitting an application or other
document to the government for another, or serving as another's
spokesperson. See, e.g., EC-COI-92-18; In re Reynolds, 1989 SEC
423, 427; Commission Advisory No. 13 (Agency) (1988).

The only prior discussion that we have found of a state
employee's acting as agent in his or her position as a municipal
official appears in EC-COI-79-123 and its judicial review. That
opinion is especially significant because, as discussed above, it
was very much before the Legislature that enacted the "municipal
exemption" in St. 1980, c. 10.[4] Although that opinion dealt with
a compensated selectman, its final paragraph considers how s. 4(c)
alone would apply if the selectman "refused compensation." After
paraphrasing s. 4(c), it continues:

This section does not prohibit you from participating in
these matters [in which the state is a party or has a
direct and substantial interest] as a selectman but it
does require you to refrain from acting as the agent for
your community vis-a-vis the state. To the extent that
your duties as a selectman, as described in your town's
by-laws or as a matter of practice, require you to act as
an agent in any such particular matters as and when they
arise, you would be prohibited by section 4(c) from
engaging in such representational activities. We suggest
that you may want to take clear and definitive steps to
indicate that you are abstaining from acting on behalf of
the town in a representational capacity in order to avoid
any suggestion that you may have violated this section of
the law.

That opinion's requester and other plaintiffs promptly sought
judicial review of the Commission's advice in the Supreme Judicial
Court for Suffolk County. McNamara v. Vorenberg, No. 79-497 Civil.
The Commission's memorandum opposing a preliminary injunction in
that case, while again primarily directed to s. 4(a), summarized
the Commission's application of s. 4(c) in this way: "he could
participate as a selectman in matters which are of direct and
substantial interest to the state provided he refrain[s] from
acting as the agent for his community in dealings with the state."
The single justice's December 17, 1979 memorandum denying the
preliminary injunction,[5] in part because no irreparable harm
would befall the plaintiff selectmen or their town, observes: "No
such harm can result from the appointment of an agent other than
one of the plaintiffs to avoid violation of s. 4(c)." By thus
implicitly recognizing that the ordinary activities of selectmen
would not violate s. 4(c), the court agreed with the Commission's
position that only "representational" activities are forbidden.
Moreover, the views of that single justice, Robert Braucher, are
entitled to special weight, as the Supreme Judicial Court itself
later recognized,[6] because he was previously a member of the
Special Commission that drafted G.L. c. 268A, and an early and
respected commentator on the new statute.[7]

The Commission's and the court's view in that 1979 case, that
a municipal official does not "act as agent" merely by discussing
and voting as a board member, is consistent with judicial and
Commission precedent in related contexts. First, before enactment
in 1978 of the state Tort Claims Act[8] rendered the distinction
irrelevant, a long line of Supreme Judicial Court decisions held
that, for municipal tort liability purposes, a municipal "officer"
was not ordinarily an agent of the municipality. See, e.g., Whitney
v. City of Worcester,
373 Mass. 208, 213-15 (1977) (discussing the
history of this distinction[9]); Reitano v. City of Haverhill, 309
Mass. 118 (1941).[10]

Second, beginning in EC-COI-81-158, this Commission has
consistently held that s. 4(c) and its municipal equivalent, s.
17(c), do not prohibit public employees who are unpaid board
members of business organizations from participating in board
discussions and votes even about subjects that are in connection
with

Page 435

government particular matters, so long as they avoid acting as the
organization's "agent, " i.e., in a representational capacity, such
as by appearing before, signing correspondence to, or making a
telephone call to, a government agency. See EC-COI-89-15; 88-17;
85-21; 83-145; 82-45
. Given the legislative purpose in enacting the
"municipal exemption," discussed above, it would be odd indeed if
its enactment served to prohibit state employees from activities as
unpaid members of municipal boards that would be allowed to them as
unpaid members of profit-making corporate boards. We do not
attribute any such intention to the Legislature.

It follows that an unpaid municipal board member does not "act
as agent" merely by participating in the ordinary business of the
municipal board, including discussion and voting. Therefore, you
may serve as an uncompensated member of the Erving Conservation
Commission and may participate fully in its ordinary business,
including discussing and voting on matters, such as orders of
conditions under the Act, that are within the purview of your state
Department. You may not, however, act as the Conservation
Commission's or the Town's agent in connection with any matter
within the Department's purview. For example, you could not appear
at a DEP hearing on the Town's behalf to defend an order of
conditions issued by your Commission (although you could appear on
your own behalf, if you first made it clear that you were speaking
or writing in your personal capacity only).


2. Restrictions as an environmental police officer (s. 6, 17,
23).


If you are appointed to the Conservation Commission, the
conflict law will also restrict your activities in your role as an
environmental police officer. Section 6 will generally prohibit you
from participating as an environmental police officer in any
particular matter in which the Town of Erving has a financial
interest, because the Town, of which you will be an "officer," is
a business organization for this purpose. See, e.g., EC-COI-92-8;
89-2; 88-4
. Section 17 (the municipal equivalent of s. 4, discussed
in part 1) will prohibit you from acting as an environmental police
officer in relation to any particular matter in which the Town is
a party or has a direct and substantial interest. Section 23 will
prohibit you from using your position as an environmental police
officer to secure an unwarranted privilege of substantial value for
yourself or others (including the Town) (s. 23[b][2]), and from
acting in that position in a manner that leaves a reasonable
impression of undue influence resulting from your Town position (s.
23[b][3]).

While limited exemptions are available to you from each of
these provisions,[11] their cumulative effect will likely be to
prevent you from performing your duties as an environmental police
officer within the Town of Erving. Cf. EC-COI-92-8 (advising
potential state legislator of limits on his legislative work
involving town where he was Selectman). You should discuss the
practical implementation of this limitation with your Department
superiors, if you pursue appointment to the Conservation
Commission.

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

* Pursuant to G.L. c. 268B, s. 3(g), the requesting person has
consented to the publication of this opinion with identifying
information.

[1] Section 19 of G.L. c. 268A will not restrict your
Conservation Commission activities on the ground that the state,
your employer, may have a financial interest in some of them,
because the Commission and the Attorney General have repeatedly
held that neither the state nor any state agency is a "business
organization" for this purpose. EC-COI-92-11; 92-3 n.3; 85-67;AG
Conflict Opinion No. 30
(Apr. 25, 1963).

[2] An act's title is evidence of legislative intent. See
Hemman v. Harvard Community Health Plan, Inc
., 18 Mass. App.
Ct. 70, 73 (1984); EC-COI-92-6 n.2.

[3] In a few of these cases, the stated facts do not reveal
whether the municipal official was compensated, and the opinions do
not discuss the point. EC-COI-88-21,86-2; 84120; 82-164; 82-89. In
only one prior opinion, EC-COI-84-103, is it clear from the
discussion that the municipal official, a sewer commissioner, was
unpaid. There, this Commission explicitly recognized that only s.
4(c) applied (as constrained by the "municipal exemption"), but
then stated conclusorily that "board members necessarily function
as agents of the town with regard to local sewage matters. N Our
discussion here in text below undermines that unexplained
statement.

[4] In addition to noting again that the Legislature made c.
10 retroactive to the date of that opinion, we also find it
significant that a copy of the opinion is found in the

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Governor's legislative file for c. 10, the permanent record of the
act's legislative history in the State Archives.

[5] The case never proceeded to argument on the merits before
the full court, because the plaintiffs were satisfied with the
Legislature's prompt enactment of St. 1980, c. 10, which the
Governor signed on February 28, 1980.

[6] Sciuto v. City of Lawrence, 389 Mass. 939, 948-49 (1983).

[7] Braucher, Conflict of Interest in Massachusetts, in
Perspectives of Law, Essays for Austin Wakeman Sco
tt (1964).

[8] G.L. c. 258, initially enacted by St. 1978, c. 512.

[9] As the Whitney court pointed out (in criticizing the
distinction as a basis of determining municipal tort liability),
"many" of the court's earlier decisions ended the inquiry once the
actor was classified as a "public officer," while other cases
discussed municipal liability if public officers were engaged in
"commercial" ventures on the municipality's behalf. 373 Mass. at
214.

[10] We note that this line of cases is discussed at length in
comprehensive memoranda by the the Winthrop Town Counsel that were
before the Legislature and Governor when they enacted St. 1980, c.
10. These memoranda are found in the Governor's legislative file
for c. 10. See note 5. above.

[11] Section 6 will require you to disclose in writing your
need to participate in any matter in which the Town has a financial
interest to your Department appointing authority, who must then (1)
assign it to another police officer; (2) assume it himself; or (3)
determine that the Town's financial interest in that matter (or
class of matters, see EC-COI-92-12 n.2; 90-5; 90-4) is not so
substantial as to interfere with the integrity of your services to
the state. Copies of your disclosure and this determination must be
filed with this Commission.

The scope of the s. 17 prohibition would be limited to
Conservation Commission matters if the Selectmen classified
Conservation Commission members as "special municipal employees."
See G.L. c. 268A, s. 1(n). This might not resolve many problems for
you, however, since most Town matters that would pose conflicts
with your work as an environmental police officer are probably
within the Conservation Commission's jurisdiction.

Finally, you could avoid violating s. 23(b)(3) (though not s.
23[b][2]) by publicly disclosing your Conservation Commission
membership to your Department appointing authority in writing.

Page 437

End Of Decision