November 5, 1992

FACTS:


You are Yarmouth town counsel. You have requested this
advisory opinion on behalf of an alternate member[1] of the
Yarmouth Board of Appeals (the Board). The Board is composed of
five regular members, each of whom is appointed for a five year
term, as provided for in G.L. c. 40A and Town of Yarmouth by-law s.
102.1. In addition, ten alternate members are appointed for one
year terms under s. 102.1. Alternate Board members sit on occasion,
by designation of the chairman, whenever a regular member is
unavailable because of absence or conflict of interest. You inform
us that the town has no specific by-law or charter provision which
otherwise describes or defines the duties of alternate Board
members. You state, however, that alternate members are rarely
called upon to fill in for regular Board members and do not
otherwise participate in Board meetings.

The alternate Board member in question has served in that
position for the past several years and is scheduled for
re-appointment. He is also a trustee of a realty trust (which was
organized as a Massachusetts business trust with transferable
shares). In the past, he has appeared before the Board as a
representative of the trust. It is possible that the trust may need
to petition the Board again in the future. Finally, you inform us
that members and alternate members of the Board have been
designated as special municipal employees by the Board of
Selectmen.


QUESTION:


May an alternate Board member, who has been designated as a
special municipal employee, represent his trust before town boards
if he does not officially participate in the matter?


ANSWER:


Yes, subject to the conditions described below.



DISCUSSION:


Section 17(a) of c. 268A, the Massachusetts conflict of
interest statute, provides that no municipal employee (including a
Selectman) shall, otherwise than as provided by law for the
proper discharge of official duties, directly or indirectly receive or
request compensation from anyone other than the city or town or
municipal agency in relation to any particular matter[2] in which
the same city or town is a party or has a direct and substantial
interest.

Section 17(c) of c. 268A provides that no municipal employee
shall, otherwise than in the proper discharge of his official
duties, act as agent or attorney for anyone (including a trust)[3]
other than the city or town or municipal agency in prosecuting any
claim against the same city or town, or as agent or attorney for
anyone in connection with any particular matter in which the same
city or town is a party or has a direct and substantial interest.

Together, these sub-sections of c. 268A are designed to
prohibit divided loyalties. In other words, a municipal employee is
a municipal employee first and foremost, and owes a duty of loyalty
to the municipality. Consequently, s. 17 is designed to prohibit an
individual from splitting his loyalties between a municipal job and
a private interest. See EC-COI-92-10; 92-4 (discussing state
counterpart provision, s. 4); see also EC-COI-92-1; 90-12; 90-16.

Whenever a person is both a private and a public employee,
"[t]he appearance of potential impropriety is raised - influence
peddling, favoring his private connections, and cheating the
government. Whether or not any or all of these evils result,
confidence in government is undermined because the public cannot be
sure that they will not result." Buss, The Massachusetts Conflict
of Interest Statute: An Analysis
, 45 B. U. L. Rev. 299, 322 (1965).
Section 17(a) reflects the maxim that "a man cannot serve two
masters." It seeks to preclude circumstances leading to a conflict
of loyalties by a public employee. As such, it does not require a
showing of any attempt to influence - by action or inaction -
official decisions. What is required is merely a showing of an
economic benefit received by the employee for services rendered or
to be rendered to the private interests when his sole loyalty
should be to the public interest. Commonwealth v. Canon, 373 Mass.
494, 504 (1977) (dissent).

Page 462

Consequently, a municipal employee may not represent a third
party in connection with a particular matter if the town (not just
the municipal employee's agency) is either a party to, or has a
direct and substantial interest in, that matter.

The prohibitions of s. 17 are, however, somewhat alleviated in
the case of a special municipal employee.[4] A special municipal
employee may act as agent for, or receive compensation from, anyone
other than his municipality in connection with a particular matter
in which the municipality has a direct and substantial interest,
provided that the particular matter is not one (a) in which he has
at any time participated as a municipal employee, or (b) which is
or within one year has been a subject of his official
responsibility, or (c) which is pending in the municipal agency in
which he is serving. Clause (c) applies only in the case of a
special municipal employee who serves on more than sixty days
during any period of three hundred and sixty-five consecutive days.
With respect to alternate Board members for purposes of clause (c),
we conclude that they "serve" only on those days on which they have
been actually designated to sit on the Board. Cf. EC-COI-91-5;
Buss, supra, at 340, n. 230 (the statute, s. 4 (state counterpart),
provides "no answer more persuasive than the word 'serves' itself,
which seems to suggest rendering service more than it does
availability for services.") (Emphasis added). Because alternate
Board members serve for less than sixty days, they are not
constrained by clause (c).

In the present case, whether an alternate Board member (who is
also a special municipal employee) may represent a third party
before town boards depends upon the answer to the following
question. Is the alternate Board member acting as an agent in
connection with a particular matter in which he has either
participated as an alternate Board member or which was under his
official responsibility? Before we can answer that question,
however, we must briefly review the terms "participation" and
"official responsibility" as they relate to Board members and
alternate Board members.


Participation


Whether a Board member has actually participated in a
particular matter is relatively easy to determine. A Board member
participates in any matter which is before him if he takes personal
and substantial action with respect to that matter. For example, if
the Board member discusses or votes on a given matter, he has
participated in that matter. See Graham v. McGrail, 370 Mass. 133
(1976); EC-COI-89-7 (participation in discussions are personal and
substantial actions, not ministerial ones). This conclusion rests
upon the definition of "participation" for purposes of c. 268A,
s.1(j).[5] In order for action to be deemed participation, the
action must be both personal and substantial.

Participation includes the approval, disapproval, decision,
recommendation, the rendering of advice, investigation or otherwise
concerning a particular matter. See EC-COI-89-7 (participation that
is superfluous, nondeterminative, or not part of the
decision-making process is more likely deemed to be ministerial
and, therefore, not personal and substantial). If a Board member
abstains on a matter by choosing not to discuss and vote on it, he
will not have participated in the matter. Similarly, if a Board
member is absent from the only Board meeting at which a particular
matter arises, for whatever reason, he will not have participated
in the matter.

It follows, therefore, that an alternate Board member can
participate in a given particular matter only if he was both called
to fill in for a regular Board member, and he actually discussed or
voted on the matter before him. Alternate Board members may not,
therefore, represent third parties in connection with matters in
which they have actually participated.


Official Responsibility


The definition of official responsibility[6] is somewhat
broader, however. Official responsibility turns on the authority to
act, not whether that authority is, in fact, exercised. See EC-COI-
89-7; 84-48
; see also Buss, supra, at 321-322 (1965) (the general
principle embodied in this definition is that public officials
should not be permitted to step outside of their official roles to
assist private entities or persons in their dealings with
government), quoting Perkins, The New Federal Conflict-of-Interest
Law
, 76 Har. L. Rev. 1113 (1965). In EC-COI-87-17, this Commission
held that the "keynote of official responsibility is the
'potentiality' of directing agency action and not the actual
exercise of power." That opinion concluded that matters are the
subject of potential action only if the governmental employee had
the ability to take action on the matter in question.

Thus, while a regular Board member may decline to participate
in a matter before him (and thus eliminate the c. 268A restrictions
which implicate participation), EC-

Page 464

COI-87-37, he or she can never forego "official responsibility"
merely by inaction or absence. Regular Board members retain
official responsibility for matters which are pending in the Board,
whether or not they have actually worked on the matter and whether
or not they actually sat on the Board on a given day. See, e.g.,
EC-COI-89-7; 84-48
.

On the other hand, we find that the general rule applicable to
regular Board members need not apply to alternate Board members
given the limited nature of their status and responsibilities in
Yarmouth as described by you. Yarmouth alternate Board members have
no authority or potential ability to act on matters pending before
the Board unless and until they are designated by the chairman to
fill in for a regular Board member. See G.L. c. 40A, s.12.[7]

Further, it is clear from your facts that Yarmouth alternate
Board members rarely, if ever, are called upon to serve. In effect,
they constitute nothing more than a pool of qualified and willing
volunteers to which the Board may turn in an emergency. They have
no other duties or responsibilities and might not even attend Board
meetings on a regular basis. Yarmouth alternate Board members do
not have the potential of directing agency action, within the
meaning of EC-COI-17, unless they are first designated to serve.[8]
(Where, however, a city's or town's alternate Board members are
more frequently called upon to serve, we might conclude otherwise.)

Accordingly, based upon the present facts, because Yarmouth
alternate Board members are not authorized to exercise any
authority until they have been designated by the Board, we find
that they do not have official responsibility for Board matters
generally. EC-COI-84-48 (official responsibility turns on the
ability to act). Instead, we find that the alternate Board members'
official responsibility encompasses only those matters which were
pending before the Board on the day or days on which they were
designated to serve, even if they decline to serve once so
designated.

Applying the above to your circumstances we find the
following. The alternate Board member/special municipal employee
may represent the trust before town boards provided that two
circumstances are present: (i) he has not participated, as an
alternate Board member on the matter (such participation would
violate s. 19 of c. 268A as well as s. 17), and (ii) the matter did
not come before him, anytime within the past year, on a day when he
was filling in for a regular Board member even if he chose not to
participate in it (that is, the matter was not under his official
responsibility).[9]

In the present case, the alternate member in question must
exercise caution, however, so that no trust-related matters will
come before the Board on days when he is called to fill in for a
regular member. As illustrated above, although an alternate Board
member may decline to participate in a matter by abstention,
abstention will not eliminate official responsibility. Accordingly,
the chairman (or the Board, by amending its rules under G.L. c.
40A, s. 12) may want to institute a policy which would prevent the
alternate member's service on the Board on a day when he might have
to appear on behalf of the trust.

Finally, you should be aware of the restrictions of G.L. c.
268A, s. 23. Section 23(b)(2) prohibits other Board members
(whether alternate or regular) from giving an unfair advantage to
the alternate Board member if and when he comes before the Board
representing the trust.[10] The other Board members must use
objective criteria when evaluating the alternate Board member's
matter and must leave aside any consideration of the alternate
Board member's status. See EC-COI-91-3.

In addition, s.23(b)(3) prohibits the creation of the
appearance of a conflict of interest.[11] A public disclosure of
all of the relevant facts would dispel the appearance of a
conflict. Consequently, it is advisable for any Board members
sitting on a day when their (alternate) colleague appears before
them on a trust-related matter to file a letter with their
appointing authority stating all of the relevant facts. The
disclosure will dispel any appearance that the Board may somehow
act to the alternate Board member's undue advantage.

Finally, s.23(c) prohibits the use of confidential (that is
non-public) information to benefit a private interest.

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

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

[1] Although the statute, G.L. c. 40A, refers to such members
as "associate members," you have described them as "alternates."
For reasons of consistency, we use the term alternate member
throughout this opinion.

Page 465

[2] "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, s. 1(k).

[3] See EC-COI-84 117; In re Reynolds, 1989 SEC 423.

[4] "Special municipal employee," a municipal employee who is
not a mayor, a member of the board of aldermen, a member of the
city council, or a selectman in a town with a population in excess
of ten thousand persons and whose position has been expressly
classified by the city council, or board of aldermen if there is no
city council, or board of selectmen, as that of a special employee
under the terms and provisions of this chapter; provided, however,
that a selectman in a town with a population of ten thousand or
fewer persons shall be a special municipal employee without being
expressly so classified. All employees who hold equivalent offices,
positions, employment or membership in the same municipal agency
shall have the same classification; provided, however, no municipal
employee shall be classified as a "special municipal employee"
unless he occupies a position for which no compensation is provided
or which, by its classification in the municipal agency involved or
by the terms of the contract or conditions of employment, permits
personal or private employment during normal working hours, or
unless he in fact does not eam compensation as a municipal employee
for an aggregate of more than eight hundred hours during the
preceding three hundred and sixty-five days. For this purpose
compensation by the day shall be considered as equivalent to
compensation for seven hours per day. A special municipal employee
shall be in such status on days for which he is not compensated as
well as on days on which he earns compensation. All employees of
any city or town wherein no such classification has been made shall
be deemed to be "municipal employees" and shall be subject to all
the provisions of this chapter with respect thereto without
exception. G.L. c. 268A, s. 1(n).

[5] "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, s. 1(j).

[6] "Official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action. G.L. c. 268A, s. 1(i).

[7] G.L. c. 40A, s. 12 provides, in relevant part:

if provision for associate members has been made the chairman
of the board may designate any such associate member to sit on
the board in case of absence, inability to act or conflict of
interest on the part of any member thereof, or in the event of
a vacancy on the board until said vacancy is filled in the
manner provided in this section.

[8] We compare alternate Board member status to that of a
president of the board of aldermen or common council who, under
G.L. c. 39, s. 5, may be called upon to exercise the powers of a
mayor because of the mayor's death, resignation, absence or
inability to serve. Merely because the mayor's powers may later
"devolve" upon the official as acting mayor does not mean that he
has had official responsibility for all matters pending in the
mayor's office even on those days when he is not acting mayor.

We also compare this status to some private attorneys hired by
a public entity to provide legal services. Not all of the legal
matters arising in the agency automatically fall within the
attorney's official responsibility. Rather, only those matters
which are specifically referred to the attorney would fall under
his or her official responsibility. Cf. EC-COI-85-50 (city charter
explicitly gave official responsibility to city solicitor for
matters not ordinarily handled by him); see also EC-COI-87-17.
Further, in responding to requests for proposals for law services,
law firms regularly limit the scope of their official
responsibility by contract in order to clarify that they have no
authority over other matters which may arise in the agency. We find
those arrangements comparable to the present situation.

[9] We emphasize, however, that nothing in this opinion, or
s.17, should be construed as permitting regular Board members to
act as an agent or attorney for, or to receive compensation from,
anyone other than

Page 466


Yarmouth in connection with any particular matter (including
appearing before his own board) (a) in which he has at any time
participated as a municipal employee, or (b) which is, or within
one year has been, the subject of his official responsibility,
or (c) which is pending in the Board, except as provided by law for
the proper discharge of his official duties. See, e.g.,
EC-COI-92-1; 92-10; Commission Advisory No. 13 (Agency).


[10] Section 23(b)(2) prohibits a municipal employee from
using or attempting to we his official position to secure for
himself or others unwarranted privileges or exemptions which are of
substantial value ($50 or more) and which are not properly
available to similarly situated individuals.

[11] Section 23(b)(3) provide that a municipal employee shall
not act in a manner which would cause a reasonable person, having
knowledge of the relevant circumstances, 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. It shall be unreasonable to so
conclude if such officer or employee has disclosed in writing to
his appointing authority or, if no appointing authority exists,
disclose in a manner which is public in nature, the facts which
would otherwise lead to such a conclusion.

Page 466

End Of Decision