July 14, 1992

FACTS:

Page 423

You are the Chairman of the Board of Selectmen (Board) of
Kingston (Town). Ronald L. C. Maribett, a full-time employee of the
Massachusetts Department of Environmental Protection (DEP), serves
on the Board. The Board has raised several conflict of interest
questions concerning Mr. Maribett's ability to participate in
certain environmental matters coming before the Board.[1] The six
major areas include questions about sewage treatment, landfill
capping, earth removal permits, solid waste management and
recycling, water supply, and appointments to town boards,
committees, and commissions.


QUESTION:

Under what circumstances may Mr. Maribett participate as a
Selectman in certain environmental matters in light of his DEP
employment?

Page 423

ANSWER:


Mr. Maribett may participate only in those matters which do
not fall within DEP's purview or which are distinctly local in
nature, as more fully described below.


DISCUSSION:


Although the conflict of interest law specifically provides
that a state employee may hold any municipal position to which he
may be elected or appointed, G.L. c. 268A, 4, the statute prohibits
a state employee from acting as a municipal employee on "any matter
which is within the purview of the [state] agency by which he is
employed or over which such employee has official responsibility."

This is the so-called "municipal exemption" to G.L. c. 268A,
4, the agency section of the conflict of interest law. A brief
background of the nature and purposes of 4 and the municipal
exemption is necessary to answer your questions.

Section 4(c) of c. 268A provides that no state employee shall,
otherwise than in the proper discharge of his official duties, act
as agent or attorney for anyone other than the Commonwealth or a
state agency for prosecuting any claim against the Commonwealth or
a state agency, or as agent or attorney for anyone in connection
with any particular matter in which the Commonwealth or a state
agency is a party or has a direct and substantial interest.

The restrictions of 4 reflect the principle that a state
employee should not assist any non-state party in its dealings with
state government by acting as that party's agent. EC-COI-83-2 6. A
state employee's duty of loyalty is owed first and foremost to the
Commonwealth, not to any other party on whose behalf he also works.
See Town of Edgartown v. State Ethics Commission, 391 Mass. 83
(1984) (municipal counterpart); EC-COI-92-4. It makes no difference
whether the individual, as a state employee, has any responsibility
for the matter in question. The critical question is whether any
agency of the Commonwealth has a direct and substantial interest in
the matter.

Before 1980, s.4 was interpreted to prohibit a state employee
from holding municipal employment if the Commonwealth had a direct
and substantial interest in the matters on which the state employee
worked in his municipal capacity. EC-COI-79-3 (state employee
prohibited by 4 from holding selectman's position); see also 79-123
(placing severe constraints on a state employee/selectman without
reference to which state agency the state employee served). In
response to this broad application of s.4, the Legislature amended
the section in 1980 by adding a municipal exemption which
permitted the dual service under certain conditions. St. 1980, c. 10.

The municipal exemption was enacted to permit a state
employee, who holds municipal employment or a municipal office, to
participate as a local official in all matters coming before him as
long as those matters are not once over which his state agency has
jurisdiction, or, in the word's of the statute, are within its
"purview." EC-COI-83-26; 86-2; 92-8. As a result, only a fraction
of the matters in which the Commonwealth as a whole is interested
are restricted under this exemption.[2] Thus, the 1980 amendment
represents a substantial departure from s.4's general application.

The municipal exemption's "purview" restriction serves three
purposes. First, it eliminates the potential for undue state agency
influence over those local officials who also happen to be its
employees. For example, a state employee who also serves as a local
official may be compelled by his superiors to carry out his
agency's wishes concerning an important local issue, even if that
policy is not in the municipality's best interests. Second, it
avoids compromising state agency action where one of its own
employees has prejudged the issue at the local level. Finally,
because the state employee is prohibited from participating, as a
local official, on matters of interest to his state agency, he is
protected from being placed in an awkward political and personal
situation.

Because only those matters which are in a state agency's
purview continue to be restricted under 4, the key to understanding
the municipal exemption is the definition of the term "purview."

"Purview" is defined as the range or limit of authority,
competence, responsibility, concern, or intention. Webster's Ninth
New Collegiate Dictionary (1987). In practice, the Commission has
found that the term purview includes any matter which is regulated,
reviewed, or supervised by the state agency in question. See
EC-COI-86-2; 83-26; 82-89
. In EC-COI-82-89, the Commission
prohibited an employee of the Department of Revenue (DOR) from
holding the position of part-time

Page 424

Assessor in a town because the DOR Commissioner was empowered to
enforce all laws relating to the valuation, classification, and
assessment of property and to supervise the administration of such
laws by local assessors (citing G.L. c. 58, 1A).

In other cases, however, the Commission has been able to
discern subtle distinctions which have permitted the state employee
to hold a local position even when there has been a substantial
overlap with his state position. However, those employees have been
cautioned to carefully observe all of the purview restrictions of
the municipal exemption.

For example, in EC-COI-86-2, the Commission concluded that an
employee of the Department of Environmental Quality Engineering
(DEQE), now DEP, could serve on a local Board of Health, provided
that he abstained on matters regulated by the DEQE. DEQE regulated
subsurface disposal systems of greater than 15,000 gallons per day.
The Board of Health was responsible for enforcing the state's
sanitary code for subsurface disposal systems of up to 15,000
gallons per day. Notwithstanding that jurisdictional difference,
the Commission held that all subsurface systems, regardless of
size, were within DEQE's purview because the Board of Health could
refer even the smaller size systems to DEQE. The Commission
concluded, however, that the DEQE employee could participate in all
matters "of a distinctly local nature. For example, permits to
disposal companies or sewer hook-up requests by individuals would
be considered local matters outside of the purview of DEQE."

Consequently, the state/municipal employee may participate as
a municipal official if the matter in question is distinctly local
in nature, or if it is otherwise not within the purview of his
state agency. See EC-COI-86-2. As a general rule, the Commission
will accord substantial deference to an agency's own determination
that a matter falls within its purview. Cf. EC-FD-89-1 (Commission
must give substantial deference to agency making determinations as
to who occupies a "major policy-making" position for purposes of c.
268B, the financial disclosure law).

With these principles in mind, we answer your specific
questions below.


A. Sewage Treatment


First, DEP's jurisdictional basis for enforcing the
Commonwealth's sewage treatment laws is quite broad. G.L. c. 21A,
13. The DEP Commissioner is empowered to adopt regulations which

deal with matters affecting the environment and the well-being
of the public of the Commonwealth over which the department
takes cognizance and responsibility including, but not limited
to, standards for the disposal of sewage.

Id.; see also G.L. c. 83, 6 (permitting town, with DEP approval, to
take or purchase land for sewage disposal purposes).

Site selections on private or town-owned property are
extensively regulated by DEP. See, e.g., G. L. c. 21, s.43.
Consequently, site selections for sewage treatments facilities are
matters within DEP's purview. Mr. Maribett may not, therefore,
participate as a Selectman in discussions or votes concerning site
selections for sewage treatment facilities.

On the other hand, we find nothing in the General Laws or in
DEP's own materials which suggests that DEP has any regulatory
oversight concerning the issue of the financing of sewage treatment
sites when DEP is not otherwise involved. We find that, absent a
state or federal grant, the financing of a sewage treatment
facility is governed by provisions of municipal finance law
(including, for example, G.L. c. 40, c. 44, and c. 59), and thus
are not within DEP's purview. Mr. Maribett may, therefore,
participate in discussions or votes concerning the financing of
sewage treatment sites if DEP is not involved.

Mr. Maribett must exercise caution in two instances, however.
First, if the matter before the Board is whether to seek DEP
financing in the first place, he must abstain from any vote on, and
from any discussions concerning, that financing. If the Board
chooses not to request DEP's financial assistance (we understand
that it is rare for DEP not to be financially involved), Mr.
Maribett many participate in other financial aspects of the
facility. If DEP's assistance is sought at any time, however, Mr.
Maribett's participation in most, if not all, aspects of the
facility mwt cease because of DEP's regulatory supervision in that
case. DEP's jurisdiction over sewage treatment matters appears to
be extensive once that agency

Page 425

is involved in the financial arrangements. Second, once the
initial, pre-permitting phase is completed, DEP would likely become
involved with the facility even if it provided no financing. Mr.
Maribett's participation must, of course, cease at that time.

DEP's approval is a prerequisite for the operation of sewage
treatment facilities. G.L. c. 21, s.43. Design review and selection
of those facilities are matters within DEP's purview. Therefore,
Mr. Maribett may not participate in those matters.

Finally, if DEP must give ultimate approval to, or if it has
any input in, the proposed requests for qualifications (RFQs) or
requests for proposals (RFPs), then any matters concerning the RFQs
or RFPs would be within DEP's purview. Generally, the development
of RFQs and RFPs, as well as contractor selection, are not within
DEP's purview, unless DEP is somehow otherwise involved in the
process by statute, regulation, or practice. DEP involvement would
result, for example, from its financing of a facility.


B. Landfill Capping


General laws c. 21H, s.1(c) provides that

it is declared to be in the best interests of the
citizens of the Commonwealth to enact legislation
authorizing the department of environmental protection to
provide financial assistance to public bodies for the
closure of landfills or other solid waste facilities and
for the expansion of landfill capacity or other solid
waste facilities.

As a result, if DEP finances a landfill project, the landfill
project would be within DEP's purview. If DEP does not provide
the financing, the financing of the landfill project would not be
within DEP's purview until the later DEP permitting phase.
Therefore, Mr. Maribett may participate in the initial,
pre-permitting stage if DEP is not involved. He must exercise
caution if the Board were to later seek DEP financing in connection
with landfill capping, and again when the permitting phase begins.

On the other hand, because of DEP's regulatory involvement in
setting standards and monitoring municipal compliance, we find that
project design review and selection are matters within DEP's
purview. See generally G.L. c. 111 and c. 21H. Mr. Maribett may
not, therefore, participate in project design and review selection
for landfill capping matters. Furthermore, to the extent that
financing decisions affect design review and selection, Mr.
Maribett must abstain from participation on those matters.

Finally, if DEP must give ultimate approval to, or if it has
any input in, the proposed requests for qualifications (RFQs) or
requests for proposals (RFPs), then any matters concerning the RFQs
or RFPs would be within DEP's purview. Generally, the development
of RFQs and RFPs, as well as contractor selection, are not within
DEP's purview, unless DEP is somehow otherwise involved in the
process by statute, regulation, or practice. DEP involvement would
result, for example, from its financing of a facility.


C. Earth Removal Permitting


We find that, except in certain instances, the earth removal
permitting process is generally not within DEP's purview. See G.L.
c. 40, 21 (17, 19)
(towns are authorized to enact by-laws
regulating earth removal); but see G.L. c. 131, 40 (placing certain
state restrictions on removal, filling, etc. of land bordering
waters).

Consequently, Mr. Maribett may participate in earth removal
permitting matters where DEP is not concerned. This includes (i)
the review of all applications concerning earth removal which do
not fall within DEP's jurisdiction under G.L. c. 131, 40, and
regulations promulgated under that statute (generally, DEP has no
jurisdiction beyond Zone II or 100 feet of a wetland), (ii) the
approval of earth removal applications for (i), above, (iii) the
setting of conditions on earth removal permits for the above, and
(iv) the enforcement of such earth removal permits.


D. Solid Waste Management and Recycling


If DEP does not finance a solid waste management and recycling
facility, the financing of the facility would not be within DEP's
purview during the initial, pre-permitting phase and Mr. Maribett
may participate (unless, as indicated above, such financing matters
affect determinations concerning the siting of the facility). He
mwt exercise caution if the Board were to later seek DEP financing
in connection with the project, and again when the permitting phase
begins.

Page 426

While we find that the siting of a solid waste facility is
regulated by DEP, see G.L. c. 111, post-consumer drop off
facilities appear to be exempt from DEP regulation by 310 CMR
19.013. Mr. Maribett may, therefore, participate in matters
concerning the DEP exempt facilities, including the review of
facility design.

Finally, if DEP must give ultimate approval to, or if it has
any input in, the proposed requests for qualifications (RFQs) or
requests for proposals (RFPs), then any matters concerning the RFQs
or RFPs would be within DEP's purview. Generally, the development
of RFQs and RFPs, as well as contractor selection, are not within
DEP's purview, unless DEP is somehow otherwise involved in the
process by statute, regulation, or practice. DEP involvement would
result, for example, from its financing of a facility.

We find that wage and personnel staff issues relating to solid
waste management and recycling facilities are distinctly local
matters. Mr. Maribett may, therefore, participate in those matters.


E. Water Supply


If DEP does not finance a water treatment or supply facility,
the financing of the facility would not be within DEP's purview
during the initial, pre-permitting phase. He must exercise caution
if the Board were to later seek DEP financing in connection with
the project, and again when the permitting phase begins.

However, the siting and maintenance of a water treatment or
supply facility is regulated by DEP. Mr. Maribett may not
participate in the operations of water treatment or supply
facilities. See, e.g., G.L. c. 111.

Wage and personnel issues related to the Town's Water
Department are distinctly local matters. Mr. Maribett may
participate in those matters.


F. Appointment to Town Boards, Committees and Commissions


We find that appointments to Town Boards, Committees and
Commissions are distinctly local matters. Mr. Maribett may
participate in appointments made to the Conservation Commission by
the Selectmen, for example, even though the Conservation Commission
must act on matters within DEP's purview. DEP has no jurisdiction
over the identity or qualifications of a candidate for the
Conservation Commission position. Merely because an appointee will
act on DEP-related matters is not sufficient to bring the
appointment process itself into DEP's purview, unless some other
condition also exists (a DEP statute or regulation establishing
selection criteria, for example).

We must address several other relevant issues. First, we
caution that DEP may, in practice, actually be involved in a
project even though it has no statutory or regulatory role. The
Commission would consider DEP's purview to extend to those matters
as well, notwithstanding the lack of a regulatory basis.

Second, this opinion is limited to the matters specifically
raised in your letter. Other projects, or other aspects of these
projects, may require additional analysis. For example, as each of
the above projects is finished, they may, as completed sites,
facilities, etc., then fall within DEP's regulatory purview. We
understand that DEP usually becomes involved in the permitting
process in most, if not all, of these specified projects, thus
bringing the projects into its purview at some later point. Mr.
Maribett has indicated that he will remove himself from any
discussions and votes once a project moves into the regulatory or
permitting phase. Mr. Maribett's proposed course of conduct is both
correct and necessary in order for him to comply with c. 268A.

Finally, Mr. Maribett should be aware of the restrictions of
G.L. c. 268A, 6. That section prohibits a state employee from
personally and substantially participating in any particular matter
in which a business organization with which he is affiliated as an
officer, director, trustee, partner or employee, has a direct or a
reasonably foreseeable financial interest. Because a municipality
is a business organization within the meaning of 6, see
EC-COI-82-25, Mr. Maribett cannot, as a DEP employee, work on
matters which will affect the Town,s financial interest.

Section 6 does, however, provide a public exemption mechanism.
The state employee's participation is permitted if his appointing
authority gives prior written approval. For example, if any matter
(or class of matters, see EC-COI-904; 90 5 ) to which a 6 financial
interest applies comes before Mr. Maribett at DEP, he must fully
disclose it to his appointing authority, the DEP Commissioner, in
writing beforehand, even if he decides not to participate. The DEP
Commissioner may then decide to allow Mr. Maribett's participation
if he

Page 427

determines that this financial interest is not so substantial as
will likely affect the integrity of Mr. Maribett's services to the
state. 6(3). Copies of both Mr. Maribett's disclosure and the DEP
Commissioner's determination must be filed with this Commission as
public documents. Mr. Maribett should seek additional advice if he
has further questions on this section.

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


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

[1] Mr. Maribett has joined in your opinion request. Mr.
Maribett and Town Counsel also authorized the Commission staff to
contact counsel for DEP to request assistance in answering your
questions. Specifically, the Commission staff asked DEP to comment
on whether any of the subject areas raised by your opinion request
fall within DEP's jurisdiction. DEP responded by letter dated May
28, 1992. The Commission staff then contacted Town Counsel and
asked counsel to respond to DEP's comments. Town Counsel responded
by letter dated June 30, 1992.

[2] One aspect of the exemption somewhat limits its broad
application, however. The exemption does not use the specifically
defined term "particular matter," G.L. c. 268A, 1(k), but rather
refers to "any matter." We believe that the Legislature's use of
the term "matter" was intentional and was meant to comprise a
broader class of restricted items not otherwise covered by the term
"particular matter." For example, while "particular matter" may
exclude legislative or managerial actions like the adoption of a
budget, Graham v. McGrail, 370 Mass. 133, 139 (1976), the term
"matter" could apply. Thus, the municipal exemption would not
eliminate restrictions on legislative or managerial matters if
those matters are within the purview of the state agency in
question. This narrow construction of the municipal exemption is
consistent with the Commission's obligation to construe all
exemptions to the conflict of interest law narrowly. EC-COI-87-2;
91-7
. See also Department of Environmental Quality Engineering v.
Town of Hingham
, 15 Mass. App. Ct. 409, 412 (1983).

End Of Decision