June 22, 1993

FACTS:


You are a Selectman in a Town (Town). You are also the part
owner of an engineering and surveying business (the Corporation).
The Corporation is incorporated in New Hampshire with an office
in Massachusetts. The Corporation provides technical services to
some Massachusetts municipalities, but it predominantly serves
private individuals and companies. The Corporation has not
previously served as a consultant for the Town.

The Corporation now has the opportunity to work on land
development projects for privately held land in the Town. In such
situations, the Corporation would provide engineering and
surveying services to private parties, but would not have an
equity interest in the land or the development. Specifically, you
contemplate that the Corporation would prepare drawings on behalf
of private parties for submission to the Town's Planning Board
for approval as part of a subdivision plan pursuant to G.L. c.
41, s. 81K et seq. In addition, the Corporation may prepare
documents for submission to the Town Conservation Commission for
approval under the Wetlands Protection Act, G.L. c. 131, s. 40 or
in the context of a septic system approval by the Town's Board of
Health.

The other principal of the Corporation is a registered land
surveyor. You are a registered professional engineer. It is the
Corporation's policy that you and the other principal stamp and
seal all plans and other professional documents. You include your
professional seal on documents for reasons of quality control and
liability exposure. In addition, a professional stamp/seal is
sometimes required by the general laws or by a local government
to be included on certain documents submitted for municipal
approval. Your professional stamp and seal contains your name as
well as your designation as a professional engineer.



QUESTIONS:


1. Does G.L. c. 268A permit you to receive compensation for
the preparation of documents which will be submitted to a Town
agency?

2. Does G.L. c. 268A permit you to place your professional
seal on documents which will be submitted to a Town agency?


ANSWERS:


1. No.

2. No.


DISCUSSION:


As a selectman, you are a municipal employee [1] for
purposes of applying the conflict of interest law [2].

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1. Receipt of Compensation:


Section 17(a) prohibits a municipal employee from receiving
compensation from anyone other than the municipality in
connection with a particular matter [3] in which the municipality
is a party or has a direct and substantial interest.

By definition, submissions and applications requiring
approval of a municipal agency are particular matters in which
the municipality has a direct and substantial interest. See EC-
COI-86-03
. In EC-COI-93-5, we stated that the receipt of private
compensation by a full-time state employee for making submissions
or reporting information to a state agency would violate s. 4(a)
(state employee restriction which parallels s. 17). In addition,
where s. 17(a) uses the language "in connection with" a
particular matter, compensation for work done pursuant to or in
relation to a submission or application raises an issue under s.
17(a). For example, the Commission has previously held that work
done pursuant to a building permit (a particular matter) is
presumptively in connection with that permit. Absent specific
circumstances indicating that a municipal employee is one of a
number of privately paid employees on a construction project and
has no responsibility for dealing with the municipal government,
a public employee's receipt of private compensation for work
pursuant to a building permit will violate s. 17(a). See EC-COI-
88-9
; contrast 87-31, n.7.

In applying s. 17(a) to your facts, we find that any private
compensation you would receive for preparing plans and other
documents which will be submitted to any Town board or agency
would be considered in relation to a particular matter in which
the Town has a direct and substantial interest, i.e., an
application requiring municipal approval. See EC-COI-92-18
(county employee may not receive compensation from private
investment firm for preparing proposal which the firm intends to
submit to county agency). Even if you would not be receiving
compensation for actually making a submission or filing documents
in relation to an application, where the documents which you or
other employees of the Corporation prepare are required by a
municipal agency, are relied upon by a municipal agency in making
its decisions, and are an integral part of an application
submitted to the municipal agency, we would find that the
preparation of such documents is "in relation to" the application
or submission, a particular matter within the meaning of the s.
17(a) restriction. You could not, therefore, receive compensation
paid by a private client for the preparation of documents to be
submitted to any Town agency. In addition, you could not receive
compensation in your position with the Corporation for
supervising or approving the work of other Corporation employees
who would be preparing documents which would then be submitted to
a Town agency. See EC-COI-92-1.

If, however, the firm were to prepare such submissions on
an unpaid basis, an issue would not be raised under s. 17(a).
Similarly, if the Corporation were to utilize fees generated from
particular matters in which the Town has a direct and substantial
interest to pay the salaries of other corporate employees or to
otherwise segregate its receivables to avoid your receipt of any
such fees, an issue under s. 17(a) will be avoided. See EC-COI-
85-21
[4].


2. Use of Professional Stamp or Seal.


Section 17(c) prohibits a municipal employee from acting as
attorney or agent for anyone other than the municipality in
connection with a particular matter in which the municipality is
a party or has a direct and substantial interest. The Commission
has, on numerous occasions, held that, for purposes of the
conflict law, acting as an agent includes signing contracts on
behalf of an individual or entity, acting as a spokesperson or
advocate for another in an application process, presenting
supporting information to a public agency or representing another
in any way before a public agency. See EC-COI-92-18; 85-58; 84-6;
83-78
.

In EC-COI-92-25 we further explained the meaning of
agency within the context of the conflict of interest law:

[i]n 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 issue here is whether professionally stamping or sealing
documents, which are then submitted to a

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Town board or committee, constitutes representation of, or
personally appearing on behalf of, someone other than the Town.

An agency relationship within the context of the conflict of
interest law comes into play when "there is a palpable link
between the private person doing business with the government and
the government employee, whereby the latter is bound -- or
appears to be bound -- to speak and act on behalf of the former."
Commonwealth v. Newman, supra., at 150. Here, in professionally
stamping a document which will be submitted to a Town board, you
appear to be acting on behalf of the Corporation's client. At the
very least, there is an appearance (if not an obligation) that
you are ultimately bound to speak on behalf of the Corporation's
client in relation to that document if its contents are
questioned by a municipal agency. Moreover, your statement that
the seal is affixed for liability reasons further indicates to us
an acknowledgment (if not an intention) that you will be bound or
potentially bound to take legal responsibility for the contents
of the document on behalf of the client.

Additionally, in the case of a professional engineer,
pursuant to state regulation, a professional stamp indicates that
a registered professional engineer or someone under his direct
personal supervision has prepared the document. See 250 CMR
3.05:(3). Presumably, the fact that a document has been prepared
by or with the supervision of a professional engineer is meant to
communicate, on behalf of the party for whom the document was
prepared, a certain level of quality and accuracy such that the
document may be relied upon. Indeed, you state that such a stamp
is placed on the document, among other reasons, for quality
control. In other words, in placing your professional stamp on a
document to be submitted to a Town board, you are in fact
communicating in a representational capacity (on behalf of the
Corporation's client) that the contents of the document are
correct and accurate and the substance of the document may be
relied upon by the Town board in granting its approval.

We therefore conclude that when you place your professional
stamp on a document, you do so in a representational capacity,
that is, on behalf of your Corporation's client. Such activity
constitutes acting as agent within the meaning of the s. 17(c)
prohibition.

In summary, s. 17 will prohibit your receipt of income in
relation to the preparation of documents which will be submitted
to any Town agency. In addition, you may not act as agent for any
of the Corporation's clients by submitting documents or
applications on behalf of clients, or by otherwise representing
clients before any Town agency. Finally, even if you do not
receive compensation derived from the fees for preparing
documents to be submitted to a Town board or agency, you cannot
include your professional stamp or seal on such documents.


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


[1] "Municipal employee," a person performing services for
or holding an office, position, employment or membership in a
municipal agency, whether by election, appointment, contract of
hire or engagement, whether serving with or without compensation,
on a full, regular, part-time, intermittent, or consultant basis,
but excluding (1) elected members of a town meeting and (2)
members of a charter commission established under Article LXXXIX
of the Amendments to the Constitution. G.L. c. 268A, s. 1(g).

[2] By definition, selectmen in a town with a population
greater than 10,000 inhabitants may not be special municipal
employees. G.L. c. 268A, s. 1(n).

[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 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).

[4] We note that other employees of the Corporation would
not be restricted from appearing before (in person or by making
submissions to) Town boards or agencies or from being compensated
by the Corporation in connection therewith. As explained above,
however, you cannot supervise such employees, nor may you receive
any compensation derived from those matters.

End Of Decision