April 27, 1993

FACTS:


You are an employee in the Governor's office. In this
position, you report to a supervisor, on a wide range of issues
pending before the Governor, and which need her review and
comment. She then advises the Governor. You are involved in
inter-agency coordination, and research and preparation of

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materials for your supervisor's review, and you are also assigned
specific tasks by her.
You are also an elected municipal official in the City of
ABC. This is a part-time, salaried post. You state that in your
role as an employee in the Governor's Office, you intend to
abstain from all matters regarding ABC.


QUESTION:


What restrictions are there on a municipal official who is
also an employee in the Governor's Office?


ANSWER:


As a municipal official, you may not vote or act on any
matter which is within the "purview" of the Governor's office.


DISCUSSION:


Section 4(a) generally prohibits a state employee from
receiving compensation from anyone other than the state in
relation to any particular matter [1] in which the state is a
party or has a direct and substantial interest. Section 4(c)
prohibits a state employee, otherwise than in the proper
discharge of his official duties, from acting as agent or
attorney for anyone in connection with any particular matter in
which the state is a party or has a direct and substantial
interest. Section 4 is based on the principle that "public
officials should not in general be permitted to step out of their
official roles to assist private entities or persons in their
dealings with government." Perkins, The New Federal Conflict Law,
79 Harvard L. Rev. 1113, 1120 (1963).

However, a "municipal exemption" was adopted by the
Legislature in 1980 to limit (but not entirely eliminate) the
effects of s. 4. The Legislature enacted this exemption in St.
1980, c. 10 to mitigate a harsh application of s. 4, which would
otherwise virtually prohibit state employees from holding
municipal office in some situations. Under this exemption, a
state employee may hold an elective or appointive office in a
city, town or district, and s. 4 will not prohibit such an
employee from performing the duties of, or receiving the
compensation provided for, such office. Nonetheless, no such
elected or appointed official may vote or act on any matter which
is within the purview of the agency by which he is employed or
over which such employee has official responsibility [2]. G.L. c.
268A, s. 4. It makes no difference whether the individual, as a
state employee, has any responsibility for the matter in
question. EC-COI-92-22. 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 ones
over which his state agency has jurisdiction, or, in the words of
the statute, are within its "purview." EC-COI-92-22; 92-8; 86-2.

As we stated in EC-COI-92-22, 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 the state agency's employees. For
example, a state employee who also serves as a local official may
be compelled by his state agency 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 pre-judged 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. EC-COI-92-22.

The critical question here, is what matters are "within the
purview" of the Governor's office. The Commission has held that
"purview" includes any matter which is regulated, reviewed, or
supervised by the agency in question. See EC-COI-92-22; 86-2; 83-
26; 82-89
. The Constitution of Massachusetts gives the Governor
broad executive powers. Mass. Const. Pt. 2, C. 2. s. 1. Such
authority includes the ability to pardon, and to nominate and
appoint judicial officers. More important, under G.L. cc. 6, 6A,
and 7, the Legislature has placed executive offices, departments
and agencies under the Governor's jurisdiction. A partial list of
offices under the Governor's jurisdiction includes the Executive
Office for Administration and Finance (which is composed of the
Department of Revenue, the Office of the Comptroller, the
Massachusetts Commission Against Discrimination, among others),
the Executive Office of Communities and Development, the
Executive Office of Consumer Affairs and Business Regulation, and
the Executive Office of Higher Education, to name a few. See
e.g., EC-COI-92-28 (reach of Governor's control extends to
Executive agencies). Additionally, the Governor's purview would
include all legislation since the Governor reviews and either
signs or vetoes all legislation.

Thus while the conflict of interest law will not prevent you
from holding both the post in the Governor's Office and the
elected, paid municipal

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position, as a municipal employee, you may not act or vote on any
matter [3] which involves the Executive Branch of the State
Government. For example, if ABC was considering opening a
landfill, you would be unable to act or vote on such matter, as
it would require a permit from the Department of Environmental
Protection, an agency under the Governor's purview. Similarly,
you could not act or vote on the issuance of local liquor
licenses, as that matter falls within the jurisdiction of the
Alcoholic Beverages Control Commission, an agency under the
Governor's purview. Likewise, you may not participate, as a
municipal official, in drafting legislation or sponsoring
legislation of interest to the City. These examples are intended
to be representative only. If you are unsure in a particular
situation whether the local matter is within the purview of the
Governor's office, you may contact us at that time with specific
facts [4].

Section 4 applies less restrictively for an unpaid municipal
employee. As an employee in the Governor's office, the municipal
exemption limits your ability to act or vote on a broad range of
matters. Therefore, you may wish to relinquish your municipal
salary, as s. 4 applies less restrictively to an uncompensated
municipal employee. See EC-COI-92-25. As stated above, s. 4
contains two distinct operative restrictions on a state
employee's outside activities. Section 4(a) generally prohibits a
state employee from receiving compensation from anyone other than
the state in relation to any particular matter in which the state
is a party or has a direct and substantial interest. If you are
uncompensated as a municipal official, s. 4(a) will not restrict
you at all, because you will not receive any compensation in that
position.

However, s. 4(c) prohibits a state employee from acting as
agent or attorney for anyone in connection with any particular
matter in which the state is a party or has a direct and
substantial interest. The language and structure of the municipal
exemption indicates that the "purview" limitation of the
"municipal exemption" will apply to an unpaid municipal official
only in the narrow circumstances when he acts as agent for a
municipal agency or municipality. Thus, if you are unpaid in your
municipal post, the general prohibitions of s. 4 will restrict
you only to the extent that you act as an agent [5] for the
municipality or a municipal agency. Where you act as an agent,
you will need the "municipal exemption," and the "purview"
limitation of the municipal exemption would apply. For example,
you would be unable to lobby the Legislature on behalf of the
municipality, as you would be acting as an agent in connection
with a matter under the Governor's purview. However, if you are
unpaid, you may fully participate in any municipal business in
which you are not acting as an agent for the municipality or a
municipal agency in connection with a matter within the purview
of the Governor's office. EC-COI-92-25.


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[1] "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).

[2] "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).

[3] Because the Legislature did not specifically use the
term "particular matter" in the municipal exemption, the intent
was to incorporate a broader class of items. For example,
"matter" applies to legislative or managerial actions such as the
adoption of a budget, which is not a "particular matter." Graham
v. McGrail
, 370 Mass. 133, 139 (1976).

[4] Normally, a state employee who holds a municipal post
will also have issues under s. 6 (which prohibits a state
employee from participating in particular matters in which a
business organization in which he is serving as an employee has a
financial interest), as a municipality is considered a business
organization. EC-COI-92-03. However, as a state employee, you
have voluntarily agreed to abstain in all matters concerning ABC.
Therefore, s. 6 is not implicated.

[5] The Commission has held that in general, a public
employee acts as agent for the purpose of G.L. c. 268A when he
speaks or acts on behalf of another in a representational
capacity. See, e.g., EC-COI-92-25; see also, Commonwealth v.
Newman
, 32 Mass. App. Ct. 148, 150 (1992). Some examples of
acting as agent are: appearing before a government agency on
behalf of another, submitting an application or other document to
the government for another, or serving as another's spokesperson.
See, e.g., EC-COI-92-18, and Commission Advisory No. 13 (Agency).

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End Of Decision