March 12, 1992

FACTS:


You are the campaign treasurer for a Selectman in a Town who
is also a public school teacher. The Selectman is also a candidate
for the General Court.



QUESTIONS:


1. May the Selectman continue serving as a Selectman and as a
public school teacher while running for a position in the General
Court? and

2. Assuming that he wins the election to the General Court,
may the Selectman serve as both a Selectman and a member of the
General Court simultaneously?

Page 390


ANSWERS:


1. Yes, subject to certain restrictions under G.L. c. 268A, s.
23; and

2. Yes, for the reasons stated below.


DISCUSSION:

1. As a Candidate


The Selectman's first question concerns the application of the
conflict of interest law to his activities as a public official and
as a candidate for the General Court. As a Selectman and a public
school teacher, he is a municipal employee as that term is used in
the conflict of interest law.[1] As such, the restrictions set
forth in G.L. c. 268A apply to him. Although nothing in c. 268A
would prohibit the Selectman from running for the office in the
General Court while simultaneously serving as both a Selectman and
as a public school teacher, he should be advised that s. 23(b)(2)
of c. 268A prohibits a current officer or employee of a
municipal agency from knowingly, or with reason to know:

us[ing] or attempt[ing] to use his official position to secure
for himself or others unwarranted privileges or exemptions
which are of substantial value[2] and which are not properly
available to similarly situated individuals.

In Commission Advisory No. 4 (Political Activity), the
Commission advised that the use of public resources, available by
virtue of one's public employment, for the purpose of conducting or
supporting a political campaign, violates s. 23(b)(2). For example,
a public employee may not use publicly-provided stationery, office
supplies, utilities, telephones, office equipment (e.g., copying
machines, typewriters, or word processors), office space or other
facilities. These resources are intended for the conduct of public
business, not for advancing the personal, private or political
interests of public employees. As Advisory No. 4 makes clear, the
taxpayers of the Commonwealth should not be forced to subsidize the
political activities of those employed in government agencies.

Accordingly, while the Selectman may run for a seat in the
General Court while employed as a public school teacher and a
Selectman, he may not use public resources to assist his campaign.

The Selectman should also be advised that the above advice is
limited to an application of the conflict of interest law, G.L. c.
268A, to his circumstances. Other laws, restrictions, or
contractual provisions may also apply to him. For example, he must
determine whether anything in his teachers' contract will require
him to take a leave of absence while campaigning for office. In
addition, issues may arise under G.L. c. 55, the campaign finance
law. The Selectman should contact the Massachusetts Office of
Campaign and Political Finance directly for further information on
the application of c. 55 to him. See, e.g., EC-COI-92-2.


2. As a State Representative


The Selectman's second question concerns the application of
the conflict of interest law to his activities as a member of the
General Court and as a Selectman.[3] Assuming that he wins election
to the General Court, the Selectman would become a state employee
as that term is used in c. 268A.[4] See, e.g., EC-COI-91-14, 89-35;
89-8. As such, the restrictions set forth in c. 268A, ss. 4, 6 and
23 would apply to him.[5]


(a) Section 4


Section 4 of c. 268A prohibits a state employee from acting as
an agent or attorney for, or receiving compensation directly or
indirectly from, anyone other than the Commonwealth or a state
agency in relation to a particular matter[6] in which the
Commonwealth or a state agency is a party or has a direct and
substantial interest.

Without the application of some exemption, state employees
would generally find that the restrictions of s. 4 would forbid
their active participation at the municipal level. Prior to 1980,
for example, s. 4 was applied to prohibit state employees from
outside employment with municipalities where the Commonwealth had
a direct and substantial interest in the matters on which the
employees worked in their municipal capacity. See EC-COI-83-26
(discussing St. 1980, c. 10, which became the municipal exemption,
described below). For the reasons stated below, however, s. 4 will
not prohibit a member of the General Court from simultaneously
serving as an elected or appointed municipal official.

Members of the General Court who wish to serve as municipal
officials may rely upon one of two exemptions found in s. 4: (i)
the legislators' exemption (described below), see, e.g.,
EC-COI-91-14; 89-31; 83-137, 82-137,

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or (ii) the so called "municipal exemption," applicable to all
state employees. Reliance on either exemption would mean that any
restrictions of the other exemption would not apply to the
circumstances described. See, e.g., EC-COI-87-36; 82-106.

Specifically, the legislators' exemption provides that a
member of the General Court is exempted from the restrictions of s.
4(a) and s. 4(c) except that no such member shall personally appear
for any compensation" other than his legislative salary before any
state agency, unless:

1. the particular matter before the state agency is
ministerial in nature;[8] or

2. the appearance is before a court of the Commonwealth; or

3. the appearance is in a quasi-judicial proceeding.

This exemption makes the substantive restrictions of s. 4
inapplicable to members of the General Court in most instances.
Accordingly, members of the General Court may rely upon the above
exemption if they wish to simultaneously serve as municipal
officials. As a consequence, we find that legislators need not be
constrained by the limitations delineated in the other exemption to
s. 4, the municipal exemption. The municipal exemption, applicable
to all state employees, provides that s. 4:

[s]hall not-prohibit a state employee from holding an elective
or appointive office in a city, town or district, nor in any
way prohibit such an employee from performing the duties of or
receiving the compensation provided for such office. No such
elected or appointed official may vote or act on any matter
which is within the purview of the [state] agency by which he
is employed or over which he has official responsibility.[9]

See, e.g., EC-COI-86-2 (employee of the Department of Environmental
Quality Engineering (DEQE), who wished to serve as a member of the
Board of Health in a town, may hold both positions provided that,
as a Board of Health member, he abstains on matters which DEQE
regulates); see also 90-8; 84-103; 80-102. This exemption was
designed to limit, but not entirely eliminate, the effects of the
s. 4 restrictions regarding acts of agency and receipt of
compensation.[10] The municipal exemption, in effect, is a somewhat
more restrictive exemption than is the legislators' exemption. We
find, however, that it is unnecessary to apply its limitations to
state legislators because s. 4, by its own terms, does not apply to
them in the first place, except in the very limited way described
above. Consequently, members of the General Court may serve as
elected or appointed municipal officials without being constrained
by language of the municipal exemption because those members are
entitled to rely upon a separate and distinct exemption which
contains no such language. Cf. EC-COI-82-39 (a legislative employee
of the General Court who was also running for Selectman would be
affected by the s. 4 municipal exemption).

In summary, should the Selectman be elected to the General
Court, he may continue to serve as a Selectman and act on all
matters before his Board, even if those matters come within the
"purview" of the General Court. He may not, however, appear before
state agencies, including the legislature, for compensation on
behalf of his Town or other parties, except as provided in s. 4.
Consequently, if the Selectman contemplates that he might be called
upon to act on the Town's behalf before state agencies as a
Selectman, he might find it advantageous to forego his Selectman's
income, if any. By foregoing any such compensation, he can avoid
issues arising under the legislators' exemption described above.


(b) Section 6


In addition to the above, a state employee, including a member
of the General Court, is prohibited from participating[11] in a
particular matter in which he, an immediate family member, or a
business organization in which he is serving as an officer,
director, trustee, partner or employee has a direct or a reasonably
foreseeable financial interest.

Municipalities are "business organizations" within the meaning
of this section. See, e.g., EC-COI-92-3; 90-8; 90-4; 89-2; 85-67;
84-120; 82-25; 81-62; 81-56.
Consequently, if the Selectman should
become a member of the General Court, he must abstain from
participating in any particular matter which will directly or
foreseeably affect his Town if he remains a Selectman. He should
bear in mind that, while the enactment of general legislation and
"petitions of cities, towns, counties, and districts for special
laws related to their governmental organizations, powers, duties,
finances and property" would not, by definition, be particular
matters, the enactment of special legislation is a particular
matter. See


Page 392

EC-COI-89-8 (discussing the distinction between general and special
legislation); 82-39 (prohibition applies to special legislation
affecting legislative aide's town in which he serves as a
Selectman). See also EC-COI-90-8.


(c) Section 23


Finally, the Selectman should be aware of how issues under s.
23(b)(2) may arise for him in connection with his service as a
member of the General Court. For example, he must refrain from
using his official position as a member of the General Court to
secure unwarranted privileges or exemptions of substantial value
for himself or his Town. See EC-COI-90-8. To comply with s.
23(b)(2), he must continue to conduct Town activities entirely
outside of his legislative work and refrain from using any state
resources in connection with his Town activities. Id.; see also
91-6; 91-7
.

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

[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] The Commission has determined that substantial value is
$50 or more. Commission Advisory No. 8 (Free Passes). See also,
Commonwealth v. Famigletti
, 4 Mass. App. Ct. 584 (1976).

[3] We assume, for purposes of this opinion, that the
Selectman intends to resign as a public school teacher should he
win election as a member of the General Court. If our assumption is
incorrect, the Selectman should renew his opinion request to seek
further guidance under c. 268A.

[4] "State employee," a person performing services for or
holding an office, position, employment, or membership in a state
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,
including members of the general court and executive council. No
construction contractor nor any of their personnel shall be deemed
to be a state employee or special state employee under the
provisions of paragraph (o) or this paragraph as a result of
participation in the engineering and environmental analysis for
major construction projects either as a consultant or part of a
consultant group for the commonwealth. Such contractor or personnel
may be awarded construction contracts by the commonwealth and may
continue with outstanding construction contracts with the
commonwealth during the period of such participation; provided,
that no such contractor or personnel shall directly or indirectly
bid on or be awarded a contract for any construction project if
they have participated in the engineering or environmental analysis
thereof. G.L. c. 268A, s. 1(q).

[5] While other restrictions under c. 268A would also apply to
a member of the General Court -- for example, ss. 2, 3, 5, and 7 --
nothing in your opinion request raises an issue under any of those
sections. Consequently, we need not review their application to his
circumstances at this time. Should he seek additional guidance on
any of those other restrictions, he should renew his opinion
request.

[6] "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).

[7] "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).

[8] The statute further describes those matters which are
considered "ministerial." See G.L. c. 268A, s. 4.

[9] Official responsibility,"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(i).

Page 393

[10] It is clear that the municipal exemption, as applied to
members of the General Court, would be of little use given the
legislature's broad regulatory powers. As a member of the General
Court who was also a Selectman in a town, the Selectman would find
that many matters coming before the Board of Selectmen could be
characterized as within the purview of the General Court. See,
e.g., Mass. Const. Pt. 1, C. 1, s. 1, Art. IV
(which empowers the
General Court to "make, ordain, and establish, all manner of
wholesome and reasonable orders, laws, statutes, and ordinances,
directions and instructions . . . as they shall judge to be for the
good and welfare of this commonwealth, and for the government and
ordering thereof, and of the subjects of the same").

[11] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s. 1(j).

Page 393

End Of Decision