September 13, 1994

FACTS:


You are an elected, uncompensated member of the Hampden-
Wilbraham Regional School Committee ("Committee") as a result of
Wilbraham town elections. The Committee consists of seven
members, five members elected by Wilbraham voters and two members
elected by Hampden voters.

You are also an attorney in private practice. You wish to
represent private parties, for compensation, before boards and
municipal agencies in Wilbraham. The Wilbraham Board of Selectmen
is willing to designate members of the Committee as "special
municipal employees", but the Hampden Board of Selectmen is not.


QUESTION:


If the Wilbraham Board of Selectmen alone designates you a
"special municipal employee", may you represent private parties,
for compensation, before Wilbraham boards and municipal agencies?


ANSWER:


Yes, provided that the representation does not involve a
matter in which Hampden or the Committee is a party or has a
direct and substantial interest.


DISCUSSION:


"Municipal employee" is defined in G.L. c. 268A, s. 1(g) as
"a person performing services for or holding

Page 575

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..." (emphasis
supplied). For purposes of G.L. c. 268A, "municipal agency" is
defined as "any department or office of a city or town government
and any council, division, board, bureau, commission, institution,
tribunal or other instrumentality thereof or thereunder." G.L. c.
268A, s. 1(f)(emphasis supplied).

In McMann v. State Ethics Commission, 32 Mass. App. Ct. 421,
428 (1992), the Appeals Court held that a regional school
committee was an "instrumentality" of its member municipalities,
in that it is a "means" by which the municipalities fulfill
"their statutory obligation to provide education". Since McMann,
it is now clear that a regional school board, like the Committee,
is a municipal agency of each of its member towns, here Hampden
and Wilbraham. See, e.g., EC-COI-92-26; 92-27; 92-40. Thus, by
virtue of your membership on the Committee, you are, for purposes
of the conflict law, a municipal employee of Hampden and
Wilbraham. See id.

Section 17(a) of G.L. c. 268A provides that no municipal
employee shall, otherwise than as provided by law for the proper
discharge of official duties, directly or indirectly receive or
request compensation[1] 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 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.

These sections of c. 268A, "are designed to prohibit divided
loyalties", EC-COI-92-10, and reflect "the old maxim that a 'man
cannot serve two masters'". Commonwealth v. Canon, 373 Mass. 494,
504 (1977) (Liacos, J. dissenting); EC-COI-90-15 ("The purpose of
s. 17, prohibiting assistance to others, is 'the essence of
conflict of interest legislation. It says, in effect, that the
norm of government employment is that the regular public employee
should, in the usual case, be a public employee first, last and
only. For him to also be a private employee is a contradiction in
terms: it suggests that he is serving two masters.'" [quoting
Buss, The Massachusetts Conflict of Interest Statute: An
Analysis
, 45 Boston Univ. Law Rev. 299, 322 (1965)]). Section 17
is applicable whenever an economic benefit is received by the
employee for services rendered or to be rendered to a private
party "when his sole loyalty should be to the public interest".
Id. Thus, we have consistently interpreted s. 17 to prohibit
municipal employees from receiving compensation or from
representing private parties in matters in which their own town
is a party or has a direct and substantial interest, whether or
not the interests of the town and the private party are adverse
to one another. See, e.g., EC-COI-88-7 (an assistant city
solicitor may not represent criminal defendant in a motion to
suppress hearing for compensation because of city's direct and
substantial interest in the proceeding); 88-1 ( part-time city
solicitor may not represent private applicant for zoning
variance); 84-117 (selectman may not act as legal representative
of trust before municipal board); 84-97 (attorney for city public
housing tenants' council may not represent private clients in
proceeding before municipal board or in lawsuit challenging
board's regulations); see also Town of Edgartown v. State Ethics
Commission
, 391 Mass. 83, 90 (1984) (s. 17 precludes Edgartown
attorney from "acting as attorney for other parties, for
compensation, relative to a particular matter in which Edgartown
is interested," whether or not parties' interests are adverse).

A "special municipal employee" is a municipal employee
"whose position has been expressly classified ... as that of a
special employee" by the board of selectmen, board of aldermen,
or city council, whichever is applicable, using "standards
reasonably related to the stated purposes and terms" of the
conflict law. G.L. c. 268A, s. 1(n). As we have recently
observed, the special municipal employee designation "is intended
to be reserved for those who in fact have limited contact with
their level of government." EC-COI-93-18 quoting Buss, supra, at
314. Among the considerations relevant to the special employee
determination are whether or not the municipal employee receives
compensation and/or is permitted personal or private work during
normal working hours. Braucher, Conflict of Interest in
Massachusetts, in Perspectives of Law, Essays for Austin Wakeman
Scott 12
(1964). Special designation is given to ensure that the
restrictions contained in the conflict law with regard to regular
(typically full-time, compensated) employees will not disable the
government from securing the services of capable people for
intermittent, often uncompensated work. See Final Report of the
Special Commission
, House Doc. No. 3650 (1962), at p. 12.

Page 576

A special municipal employee is subject to s. 17(a) and (c)
"only in relation to a particular matter (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 municipal agency
in which he is serving. Clause (c) of the preceding sentence
shall not apply in the case of a special municipal employee who
serves no more than sixty days during any period of three hundred
and sixty-five consecutive days." Thus, if you were designated as
a special municipal employee in your Committee position, s. 17
would not prohibit you from representing private parties before
municipal boards or agencies with regard to matters others than
those in which you participated, or with which the Committee is
concerned.[3]

Here, the proposed private work will involve representation
of private parties before Wilbraham municipal boards and agencies
other than the Committee. As a regular employee of that town by
virtue or your membership on the Committee, s. 17 would prohibit
such representation because you would be "receiving . . .
compensation from [some]one other than [Wilbraham] or [the
Hampden-Wilbraham Regional School Committee] in relation to [a]
particular matter in which the same . . . town [Wilbraham] is a
party or has a direct and substantial interest." You tell us,
however, that the Wilbraham Board of Selectmen is willing to
grant you and the other Committee members special municipal
employee status in Wilbraham. That is, the Wilbraham Selectmen
have indicated their willingness to invoke the mechanism provided
by c. 268A, s. 1(n), that will secure your uncompensated service
on the Committee without overly burdening your ability to
practice law in that (your own) community. If you are so
designated, we conclude that s. 17 should apply less
restrictively to you with regard to your representation of
private parties in Wilbraham.

While the question presented in this case has never been
squarely addressed by this Commission, our prior precedent would
appear to suggest that in order for s. 17 to apply less
restrictively to you in Wilbraham, each of the Committee's member
towns would have to designate you as a special municipal
employee. See, e.g., EC-COI-92-27; 92-40. (That is not possible
here because the Hampden Board of Selectmen has indicated its
unwillingness to do so.) In each of these prior cases, however,
the municipal employee sought to be compensated in connection
with a matter in which the regional entity was a party or had a
direct and substantial interest. Specifically, in EC-COI-92-27,
we considered whether a member of a three-town regional high
school committee would have a conflict of interest if a private
company, in which he was a 50% owner, had a contract with the
committee to provide goods and services to the regional high
school. We concluded that s. 20, which prohibits a municipal
employee from having a financial interest, directly or
indirectly, "in a contract made by a municipal agency of the same
city or town", prohibited the employee's interest in such a
contract, unless an exemption applied. We observed that an
exemption would only be available if the employee could be
designated a special municipal employee, and that the board of
selectmen of each such town would have to grant the special
employee designation.

Similarly, in EC-COI-92-40, we considered whether
Commissioners of the Martha's Vineyard Land Bank Commission,
which is composed of a member from each of the towns of Martha's
Vineyard and the state Secretary of Environmental Affairs or her
designee, could act as real estate brokers in land transactions
in which the Land Bank was seeking to purchase or sell property.
We also addressed the same question with regard to members of
town advisory boards, which, by statute, assist the Land Bank
Commission in administering the Land Bank, and which are composed
of a representative appointed by the local conservation
commission, planning board, board of assessors, board of health,
park and recreation committee, board of selectmen and water
commission. We concluded that, under s. 17, a Land Bank
Commissioner, whether or not designated as a special municipal
employee, would be prohibited from acting as a broker for a
private party in such a transaction. Further, where the broker is
compensated for services rendered on behalf of the Land Bank, we
concluded that receipt of such compensation is prohibited by s.
20 unless an exemption applied. Noting that "each municipality
would ... be an interested party to the transaction as the Land
Bank is an instrumentality of each of its member[] [towns]," we
concluded that Land Bank Commissioners would have to seek special
employee designation and the s. 20(d) exemption from the boards
of selectmen of all of the member towns, and file a disclosure
with the Town Clerk in all of the member towns.

We believe the facts you present are distinguishable from
92-27 and 92-40 in that you seek to represent private parties
before Wilbraham boards and agencies other than the Committee. In
analyzing your situation, we note that the restrictions of s. 17
apply to particular matters in which the "same city or town" by
which the municipal employee is employed is a party or has a
direct and substantial interest. Thus, by its express terms, s.
17 ought to apply to a Hampden employee only with regard to
matters in

Page 577

which Hampden is a party or has a direct and substantial interest,
and we can discern no legitimate policy in c. 268A for ruling
otherwise. See Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977)
(the language used is the principal source of insight into
legislative purpose). However, such will rarely, if ever, be the
case where the matter is one pending before a Wilbraham board
or agency. Accordingly, we find that a member of a regional school
committee (or similar regional body), who has been designated as a
special municipal employee in that position by a member city or
town, may represent private parties before other municipal boards
and agencies of that same city or town (to the extent permitted by
s. 17 as it relates to special employees), as long as neither the
regional entity nor any other member municipality is a party to
that matter or has a direct and substantial interest in it. If (but
only if) such other member city or town is also a party or has a
direct and substantial interest in the matter, then the member or
employee of the regional body must also receive special municipal
employee status in that other town to have s. 17 apply less
restrictively to him.[4] See EC-COI-92-27; 92-40.

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

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

[1] "Compensation", any money, thing of value or economic
benefit conferred on or received by any person in return for
services rendered or to be rendered by himself or another. G.L.
c. 268A, s. 1(a).

[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] A member of a board or committee has official
responsibility for matters which are pending in the board or
committee "whether or not they have actually worked on the matter
and whether or not they actually sat on the Board [or Committee]
on a given day." EC-COI-92-36 (Board member); 93-24; 89-7
(matters pending in an agency or Commission).

[4] However, we point out that even if you are designated as
a special municipal employee by both of the member towns, s. 17
would prohibit you from representing a private party before the
Committee, because such a matter would be within your official
responsibility as a Committee member. See, EC-COI-92-40 n. 6; see
also EC-COI-92-36
.


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End Of Decision