November 17, 1999


FACTS:


As Counsel to a town in Massachusetts ("Town 11) you have
requested an advisory opinion on behalf of members of the Review
Board ("RB"). The Town established the RB "in recognition of the
fact that beautiful communities can be created only through a
deliberate search for beauty on the part of the community
leadership, architects, engineers, planners, realtors and the
building industry, backed by an appreciation of the visual world by
the people." Town By-Law.

The RB consists of five members, appointed by the Board
of Selectmen for three year terms, one of whom must be a registered
architect and one of whom must be a registered engineer or
registered land surveyor. Id.

According to Town By-Laws, the Planning Board ("Planning
Board"), the Zoning Board of Appeals ("ZBA") and/or the Building
Commissioner ("Building Commissioner") are required to forward all
landscape plans for buildings in Business, Industrial or
Multifamily Dwelling Zones to the RB. The RB must review the
landscape plans and make recommendations to the appropriate board
within 14 days. The Planning Board and the ZBA have discretion to
incorporate RB recommendations as conditions for approval. Id.

Town By-Laws require the RB to evaluate landscape plans
in relation to existing and proposed landscape and buildings. The
Town Manual ("Manual")[1/] requires the RB to evaluate landscape
plans (proposed trees, plants, paving, benches, fencing, screening,
lights, fountains, terracing, signs, stones, planters, parking areas
and foundation treatment) in light of the following factors:
conformity with Town By-Laws governing site development set backs,
screening, parking, and buffer zones; conjunction with contiguous
adjacent property, street rights-of-way, and existing or proposed
buildings; visual harmony with the surroundings; environmental
impact; enhancement of the character, value and attractiveness of
the surroundings through design, scale and location; character of
the existing landscape to be preserved; and, preservation of
existing stands of trees.

In practice, and based on the Manual, the RB operates as
follows: an applicant who applies to the Building Commissioner for
a building permit ("permit") in a business, industrial or
multifamily dwelling zone is instructed to provide two copies of a
landscape plan ("plan") to the RB; the RB evaluates the plan in
accordance with the factors listed above and meets with the
applicant to reach agreement on modifications the RB recommends;
once agreement is reached, the RB and the applicant sign two plans;
the RB maintains one copy and forwards the other to the Building
Commissioner; the RB approves the issuance of the permit; the RB
Chairman signs the Building Permit Application Sign-On Sheet[2/]
("Sign-On Sheet"); when the work is completed, the RB (or a
majority of the RB) does a site inspection, followed by the RB
Chairman's signing the Building Commissioner's Sign-Off Sheet
("Sign-Off Sheet")[3/]


QUESTIONS:

1. May an RB member be compensated by a private client
for landscape work implementing a plan the RB member reviewed if,
at the time of the review, the RB member had no foreseeable
expectation of performing such work?

2. May an RB member who does not participate in a review
of the plan or inspection of the work be compensated by a private
client for landscape work done pursuant to the plan?


ANSWERS:


1. No, an RB member may not be compensated by a private
client to implement a plan the RB member reviewed because such
compensation would be in relation to a particular matter of direct
and substantial interest to the Town and one in which the RB member
participated.

2. No, an RB member may not be compensated by a private
client for landscape work done pursuant to the plan, even if the RB
member does not participate in the review or inspection of the
work, because the RB member has official responsibility for review
of the plan, approval of the issuance of a building permit, and
inspection of the work.


DISCUSSION:


RB members are individuals performing services for a
municipal agency,[4/] and, as such, are considered municipal
employees subject to the conflict of interest law.[5/] G.L. c.
268A, s. l(g). Town records show that RB members have been
classified as special municipal employee[6/] As municipal
employees, RB members are subject to s. 17 of the conflict of
interest statute.[7/] Section 17(a) 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[8/] from anyone other than the city or town or
municipal agency in relation to any particular matter[9/] in which
the same city or town is a party or has a direct and substantial
interest. This section, which is designed to prohibit divided
loyalties, applies when a public employee, who is expected to
demonstrate undivided loyalty to the public interest, represents
the interests of an "outsider" in a matter to which the public is
a party or has a direct and substantial interest. See W.G. Buss,
The Massachusetts Conflict-Of-Interest Statute: An Analysis,

Page 740


45 B.U. Law Rev. 299,322 (1965).

The prohibitions of s. 17 are less restrictive in the
case of a special municipal employee, such as an RB member. A
special municipal employee may receive compensation from anyone
other than his municipality in connection with a particular matter
in which the municipality is a party or 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.[10/]

The first question is whether an RB member may be
compensated for private work implementing a plan he reviewed,
assuming he had no foreseeable expectation of performing such work
at the time of the review.[11/] The answer turns on whether such
compensation is in relation to a particular matter of direct and
substantial interest to the Town and in which the RB member
participated.

First, if the RB member reviews the plan and makes
recommendations for modifications, we find that such action
constitutes personal and substantial participation. See EC-COI-92-3
("if one discusses. or makes recommendations on the merits of a
matter one will be deemed to have participated personally and
substantially in a matter"); see also, EC-COI-89-2 (discussion of
the merits of a particular matter). Next, the RB's review of the
plan is a particular matter of direct and substantial interest to
the Town, because Town By-Laws require an applicant to submit a
plan to the RB for review and the Manual requires the RB's approval
prior to the issuance of a permit. See EC-COI-87-31 (where the
Commission concluded that an application for a building permit, the
decision to issue the permit, and the permit itself are all
"particular matters" to which the town is a party or in which the
town has a direct and substantial interest). Thus, if an RB member
is later compensated to implement the plan, such compensation would
be in relation to his earlier review of the plan, a particular
matter in which he participated. We conclude that s. 17(a)
prohibits the receipt of such compensation.[12/]

The second question is whether an RB member may be
compensated by a private client for work the RB inspects if the RB
member did not review the plan and will not inspect the work. Since
RB members are special municipal employees, the narrow question is
whether the RB member would be compensated in relation to subjects
within his official responsibility. The statute defines "official
responsibility" as "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 (0.

In determining what constitutes a public employee's official
responsibility, the Commission has cited the interpretation of federal
law on which G.L. c. 268A was modeled, which provides that "the
scope of an employee's official responsibility is determined by those
areas assigned by statute, regulation, . . job description or delegation
of authority." 5 CFR s. 263 7.202(b)(2); Title 18 U.S.C. s. 202(b). See
Buss, supra
, at 321; EC-COI-99-2. We therefore look to the sources
of RLRB authority and the scope of that authority.

The primary source of RB members' official responsibility
springs from Town By-Laws which require the Planning Board, the ZBA
and the Building Commissioner to forward landscape plans to the RB
for review and recommendations and require the RB to report back to
the appropriate board. Town By-Laws also delegate to the RB the task
of evaluating landscape plans.

The secondary source of RB members' official
responsibility comes from the Manual, which assigns to the RB a
shared responsibility for community planning.[13/]

The Manual also provides the equivalent of a job description,
instructing RB members on specific criteria to apply in evaluating
plans, such as "[c]onformity with the Town By-Laws governing site
development set-backs, screening, parking and buffer zones,"
"conjunction with contiguous adjacent property, street
rights-of-way, and existing or proposed buildings," and
"environmental impact." Finally, the Manual delineates the process
by which RB members exercise their authority through meeting with
the applicant, maintaining a copy of approved plans, signing the
Sign-On Sheet of the Building Commissioner, and performing a site
inspection when the work is completed.

Official responsibility attaches as soon as the RB receives an
applicant's plan, since RB members may then exercise their authority
to evaluate the plan. See Buss, supra, at 337 ("consistent with the
meaning of the concept, [ ] official responsibility should attach at
precisely that point of time when the official's authority would become
exercisable with respect to the application in any degree or respect").
The RB's evaluation of the plan, approval of the issuance of a building
permit, and inspection of the completed work are all particular matters
which remain subjects of RB members' official responsibility until the
inspection is conducted and the RB Chair man signs the Sign-Off Sheet.
[14/] EC-COI-88-9 ("A town always retains jurisdiction to determine that
work is in accordance with the specifications stated on the application
for a building permit"). As a fundamental matter, an RB member can not
absolve himself of official responsibility by not participating in a particular
matter but only by, "in effect, resign[ing] from his position." Buss, supra, at
320-321. See, e.g., EC-COI-81-14 (member of area board had official
responsibility over any particular matter before the board whether or not
he participated in the matter as an area board member); Public Enforcement
Letter 96-1 (special permit site plan review was a subject of zoning board of
appeals member's

Page 741


official responsibility even though he abstained from participating
in the matter as a ZBA member).

In sum, if an RB member receives compensation to
implement a plan, such compensation would be in relation to
particular matters which are (or within one year have been)[15/]
subjects of his official responsibility. See EC-COI-88-9 (s. 17
prohibits part-time town building inspector, even if a special
municipal employee, from receiving compensation for carpentry
services which require an application for a building perm it or
subsequent inspection or approval by the town, since he has
official responsibility for enforcement and administration of the
building code and permits issued pursuant to the code);
EC-COI-83-17 (member of Board of Underwater Archaeological
Resources prohibited from receiving compensation in connection with
excavation from the holder of a permit granted by the Board, since
the application for a permit, the decision to grant the permit, and
decisions regarding oversight of the operation all are particular
matters within the Board member's official responsibility). We
conclude that s. 17 (a) prohibits the receipt of such compensation
because the RB has official responsibility - the direct
administrative and operating authority for evaluating and approving
all landscape plans in business, industrial and multifamily
dwelling zones, and for inspecting the completed work implementing
those plans.

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

[1/] The "Town Review Board" Manual titled "Criteria and
Procedural Design," bears the Town Seal and provides in its
Preamble: "The design of the creation of the Town Review Board is
delineated in Article [ ] of the Town Meeting ... and the Board was
subsequently established by the Selectmen so that aesthetic
community planning could become the shared responsibility of
architects, planners, engineers, realtors, town officers, as well
as community leadership."

[2/] The Sign-On Sheet provides the following: the property
location, type of construction, name of owner, name of contractor;
the heading: "This is to certify that the following departments have
been informed of the proposed construction and do hereby approve
of the issuance of a building permit the heading "For All Applicants,"
followed by a list of various Town departments and agencies with a
signature line and date for each, such as "Fire Department,
by date "; the heading "For Business/Industrial/Business-
Professional (in addition to the above)," and a list of the following
boards, with a signature line and date for each: Board of Health;
Board of Selectmen; Design Review Commission. Disabilities
Commission; Historical Commission; and Review Board.

[3/] You question the Building Commissioner's practice of
requiring RB approval as a condition for issuing a Certificate of
Occupancy (CO); however, that matter is not relevant to our
analysis.

[4/] "Municipal agency", 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)

[5/] "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)

[6/] "Special municipal employee", a municipal employee who is
not a mayor, a member of the board of aldermen, a member of a 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 by 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).

[7/] As an initial matter, although Town By-Laws describe the
RB as ..not regulatory but rather advisory," a consideration of the
following factors which the Commission has previously applied to
advisory committees rules out concluding that the RB is an ad hoc
advisory committee whose members are not subject to the conflict
law: the establishment of the RB through Town By-Laws as a
permanent board; the structure and composition of the RB
membership; the formality of the process by which the RB operates;
the authority which the RB exercises in relation to a building
permit; RB inspection of the final work. See EC-COI-93-22
(discussion of factors the Commission considers in determining
whether a particular entity is a public instrumentality for
purposes of G.L. c. 268A). Moreover, the Town has expressly
classified RB members as special municipal employees within the
provisions of G.L. c. 268A. In the future, should the RB be
redesigned to serve as an ad hoc advisory committee, you may seek
additional advice.

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

[9/] "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. I (k).

[10/] Clause (c) applies only in the case of a special
municipal employee who serves on more than 60 days during any
period of 365 consecutive days, The application of clause (c) is
not relevant to our analysis.

Page 742


[11/] Section 19 prohibits a municipal employee from
participating such an employee in a particular matter in which to
his knowledge h his immediate family or partner. a business
organization in which he serving as officer, director, trustee,
partner or employee, or any person or organization with whom he is
negotiating Or has arrangement concerning prospective employment,
has a financial interest. G.L. 268A, s. 19. If an R13 member
participates in the RB review of landscape plans at a time when he
knows or has a reasonable expectation that he will perform such
work, s. 19 will be violated.

[12/] An RB member may receive compensation for landscape work
Town so long as the Town does not require the RB's review (such for
work which is not in a business, industrial or multi-family zone

[13/] See footnote 1, supra.

[14/] If the RB did not inspect the completed work, the Town
never the less has a direct and substantial interest in the work,
since "[t]he direct and substantial interest of the flown is
determined by the requirement of issuing a permit, and not by the
practice of inspection."

[15/] Even if one year passed since the RB reviewed the plan,
the RB still has official responsibility for inspecting the
completed work.

Page 743

End of Decision