March 27, 1996

FACTS:

A Town Board of Assessors is made up of five elected,
uncompensated members. Certain members of the Board are licensed
real estate appraisers.

Page 657

QUESTION:



Does the conflict of interest law allow a Board member, who is
also a licensed real estate appraiser, to be paid to perform
appraisals of properties located in Town?


ANSWER:


Yes, subject to the limitations set forth below.

DISCUSSION:


Board members are municipal employees under the conflict of
interest law.[1] The following provisions of c. 268A are relevant
to the question.

Section 17


Section 17(a) prohibits municipal employees from receiving
compensation[2] from anyone, other than their municipality, in
connection with a particular matter[3] in which the municipality is
a party or has a direct and substantial interest. In addition,
s.17(c) prohibits municipal employees from acting as agents[4] for
anyone other than the municipality in any claim against the
municipality or for anyone in connection with any particular matter
in which the municipality has a direct and substantial interest.
This section is based on the principle that "one cannot serve two
masters." A member of the Board who is also a private appraiser
would be restricted from participating or receiving compensation in
certain particular matters.

For example, such a member would not be allowed, under
s.17(a), to be paid by a private party to prepare materials such as
affidavits or valuation forms that would be submitted to the Board.
One could not be paid to perform an appraisal for the express
purpose of seeking an abatement. If one were to perform such types
of work for no pay, one would still not be able to act as an agent
for a private party before any Town boards or officials. Signing
or submitting forms on behalf of a private party or appearing
personally before Town officials would constitute acting as an
agent. Representing any private party in any matter relating to a
property assessment such as a challenge to the assessment or an
abatement application would be prohibited.

Additionally, if the Town were interested in leasing or
purchasing properties, it is conceivable that value as established
by an appraisal would be of direct and substantial interest to the
Town. A Board member could not be paid by or represent a private
party in connection with such an appraisal.[5] Similarly, a Board
member could not conduct an appraisal for a private party in an
eminent domain proceeding by the Town or in connection with a tax
taking or sale.

Section 17 would not, however, prohibit a Board member from
performing appraisals conducted only for private parties and not
related to any official action by the Town. For example, s.17
would not bar a Board member from conducting an appraisal in
connection with private financing.

Section 19


In pertinent part, s.19 provides that a municipal employee may
not participate in any particular matter in which he, an immediate
family member[6] or partner, a business organization in which he is
an officer, director, trustee, partner, or employee has a financial
interest. The definition of participation includes not only voting
but also formal and informal lobbying of colleagues, reviewing and
discussing, giving advice and making recommendations on particular
matters. EC-COI-92-90. The financial interest may be of any size
and may be either positive or negative so long as it is direct and
immediate or reasonably foreseeable. EC-COI-92-24; 84-96; 84-98.
For example, a Board member could not participate in Board matters
concerning his own property or property of his immediate family.[7]

Section 23


Certain provisions of s.23, which specifies standards of
conduct that apply to all public officials, are pertinent. Under
s.23(b)(2), a public employee may not use his official position to
secure unwarranted privileges or exemptions of substantial value[8]
for himself or others. Section 23(b)(3) prohibits a public
employee from engaging in any conduct which gives a reasonable
basis for the impression that any person or entity can improperly
influence or unduly enjoy his favor in the performance of his
duties, or that he is likely to act or fail to act as a result of
kinship, rank, or position of any person. To dispel such an
impression, the public employee must make a written public
disclosure in advance of participating in the matter of all the
facts and circumstances. EC-COI-91-3; 89-19. An elected official
must file such a disclosure with the municipal clerk. In addition,
if an appearance of a conflict of interest arises in a public
meeting, officials are advised to make a verbal disclosure to be
included in the meeting minutes. Commission Fact Sheet, Avoiding
"Appearances" of Conflicts of Interests, Standards of Conduct
(Section 23).


Page 659

Finally, s.23(c) prohibits a public employee from engaging in
any business or professional activity that will require him to
disclose confidential information which he has gained by reason of
his official position or authority and from improperly disclosing
material or data which is exempt from the definition of a public
record.[9] EC-COI-91-1.

Under s.23(b)(2), a Board member may not use his title as an
Assessor, municipal time or resources to promote or benefit private
interests. Although final assessments are a matter of public
record, one could not use, for example, computer data bases or
programs not available to the public to get information for a
private appraisal business.

We acknowledge that appraisals are performed for purposes not
related to the Board's responsibilities or other municipal matters.
For example, private parties secure appraisals for financings,
sales, or marketing efforts. Neither the Board member nor the
private party may have contemplated that the appraisal would be
used in connection with a municipal matter. However, such an event
may occur. If such an appraisal were to be submitted to the Board
at a later time in connection with a particular matter, s.23(b)(2)
requires the Board member who performed the appraisal to apply
objective criteria to that matter. EC-COI-89-23. In addition, as
described below regarding s.23(b)(3), the Board member must also
make a public disclosure of all the facts and circumstances
regarding his work on the appraisal in order to dispel the
appearance of a conflict of interest. See also EC-COI-89-29. If
the Board member cannot be objective about the matter because of
his prior private work on the appraisal, he must abstain from
participating in that particular matter before the Board.[10]

Issues under s.23(b)(3) often arise because of one's
relationships with non-immediate family members which do not
involve financial interests under s.19. If a former private
appraisal client of a Board member were to bring a matter before
the Board, not involving the Board member's private appraisal, that
Board member must fully disclose his history with the client in
order to dispel an appearance of bias or influence prior to
participating in the matter. Similarly, again when s.19 or s.17
issues are not involved, if a Board member assisted a party in
completing abatement application for no pay, that Board member
must disclose his prior relationship. See also EC-COI-89-16.[11]

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

[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).

Although a non-paid municipal position may qualify to be
designated for "special municipal" employee status, our records do
not indicate that the Board of Assessor positions have been so
designated. The definition of a special municipal employee is 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 earn
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).

Certain provisions of the conflict law apply somewhat less
restrictively to special municipal employees. If the Town were to
designate the Board positions as "special municipal" employees, you
should seek further advice from the Commission.

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

[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] The State Ethics Commission has concluded that "the
distinguishing factor of acting as agent within the meaning of the
conflict law is

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'acting on behalf of' some person or entity, a factor present in
acting as spokesperson, negotiating, signing documents and
submitting applications." In re Sullivan, 1987 SEC 312, 314-315;
See also In re Reynolds, 1989 SEC 423, 427; Commonwealth v. Newman,
32 Mass. App. Ct. 148, 150 (1992).

[5] If the Town were to retain a Board member for pay to
perform an appraisal for the Town's benefit, then that Board member
could have an issue under s.20 of the conflict law. Section 20
generally prohibits municipal employees from having an interest in
another contract with the same municipality. This prohibition,
however, contains several exemptions and qualifications. If such
an issue arises, you should seek further guidance from the
Commission.

[6] "Immediate family," the employee and his spouse, and their
parents, children, brothers and sisters. G.L. c. 268A, s.1(e).

[7] Note that the exemption under s.19(b)(1) is not available
to elected officials. EC-COI-90-1.

[8] "Substantial value" is $50 or more. EC-COI-93-14.

[9] G. L. c. 4, s.7.

[10] There may be circumstances in which a private appraisal
performed by a Board member is called into question by the Board.
Other Board members might criticize the integrity of that Board
member's private work. For example, a recently performed private
appraisal might have a valuation that is less than the Board's
assessment. We have concluded that in certain circumstances a
public official would have a reasonably foreseeable financial
interest in an official decision because of the effect of that
decision on the official's private reputation. In EC-COI-82-105
and 82-176, the Commission held that driving schools have financial
interests in decisions by the Registry of Motor Vehicles ("RMV") to
grant licenses to applicants from their driving schools because of
the effect such decisions have on the reputation and success of the
schools. Therefore, the Commission held that RMV inspectors who
also worked privately for driving schools would have to comply with
s.6, the state counterpart to s.19, and not act as RMV inspectors
in connection with license applications by students from the
driving schools at which they teach.

Even in circumstances not implicating s.17, if a Board
member's appraisal were to be used by a former client in connection
with Board matters, s.19 might be implicated because of the effect
of the Board's decisions on his private reputation as an appraiser.
If such a circumstance were to occur, the Board member should
seek further guidance from the Ethics Commission prior to participating
in the Board matters.

[11] Note that s.23(e) expressly permits a head of a municipal
agency to establish and enforce additional standards of conduct.
We have said that the Commission, absent special circumstances,
will defer to an agency code of conduct governing conflicts of
interest that is more restrictive than c. 268A and consistent with
its principles. EC-COI-93-23.

Page 660

End of Decision