The president of a corporation which has service contracts with state and municipal agencies asks whether it would violate the Conflict of Interest Law if he or she were elected to the General Court and retained his or her interest and position with the company.
May a member of the General Court maintain financial interests in a realty trust where the units receive rental subsidies from the federal and state government?
- The Commission concluded that new language inserted by St. 1982, c. 107 was intended to apply only to those selectmen who were previously prohibited from receiving compensation for a second municipal office or position and not to selectmen who had been classified as special municipal employees under s. 1(n).
- May a special consultant for a state agency also be employed part-time as a law clerk with the District Attorney's office.
May a state college faculty member hold an additional part-time position teaching a workshop and working on the catalog for the Division?
A member of the General Court may serve on a medical malpractice tribunal, provided he or she is not compensated for services on the tribunal.
Section 7 would allow a part-time Department of Social Services employee to hold a 2nd part-time position with DSS under the public assistance exemption.
- A police chief may not also serve as a constable because the duties of a constable can not be provided outside the normal working hours as police chief since the job of police chief is considered a 24 hour a day job.
- A fire district is an independent municipal agency for purposes of G.L. c. 268A, and an elected member of a prudential committee of the fire district is a municipal employee.
- Two members of the board of directors of the Community Economic Development Assistance Corporation are special state employees and may continue their outside activities, subject to certain conditions.
- A member of the General Court may continue employment as a consultant to a company as long as his compensation is not derived from any contracts between the company and the state, and he refrains from appearing before state agencies in connection with state contracts or other particular matters.
- Where the brother of a state employee independently operates a business in which the state employee exercises no management or control, the brother's financial interest in his contract with the state will not be imputed to the state employee.
- Section 7 prohibits a full-time state employee from being paid as an examination reader for the Board of Bar Examiners. Because there is no public notice of the availability of the reader position, the employee does not qualify for an exemption under section 7(b).
- Section 20 disqualifies a selectman from eligibility for a compensated position in the same town until six months after the selectman resigns.
- A state employee cannot transfer property to an independent third- party where: (1) the third party had a previously established contractual arrangement to transfer the property to a state agency; (2) the state agency had initiated the series of transfers solely as a way to circumvent the section 7 restrictions, and (3) all of the parties knew, in advance of the original transfer, that the property would be conveyed from the state employee to the third party to the state agency. The series of transactions was, in effect, a prohibited pass-through.
- A Selectman would violate section 20 by holding a direct financial interest in a contract to provide ambulance services to his own Town. The section 20(f) exemption for certain "personal services" contracts is not applicable because the contract is not for the provision of "employment-type" services to the Town police, fire, rescue, or ambulance department.
- A municipal police officer is prohibited under §20 from maintaining his employment as a police officer and also serving as a city councillor. An exemption to section 20 for selectmen does not apply to city councilors.
- Member's of the Martha's Vineyard Land Bank are considered employees of an independent municipal agency for the purposes of G.L. c. 268A, and members of local advisory boards are municipal employees under G.L. c. 268A. The opinion addresses the limitations which G.L. c. 268A imposes on the official and private activities of these employees. NOTE: This opinion has been overturned in 92-40
- Members of the board of directors of a foundation created and supported by a state college to perform a governmental function for the college are special state employees of a state agency under G.L. c. 268A, section 1(p). Directors must observe the limitations of sections 7 and 23 in their dealings with other state agencies.
A member of the General Court may participate in legislation which affects companies with which his company does business, and his company may continue to do business with companies which contract with state agencies, with certain conditions.
- Section 7(a) will not prohibit the Secretary of Transportation and Construction from divesting of a financial interest in a state contract after a thirty day period of assuming office because (1) the interest arose prior to his appointment; (2) he had attempted to divest in good faith prior to assuming office; (3) a legal requirement outside of his control prohibited divestment of the interest unless and until that requirement was fulfilled; (4) the value of his interest was capped pursuant to an agreement which was entered into prior to his taking office; (5) he would not financial benefit from any delay in divesting; and (6) he agreed to keep the Commission informed of the divestment process.
- An associate professor at a state college who had a part-time, paid position coaching cross-country and track teams at the same college qualified for the "teaching" exemption from section 7, as amended by St. 1990, c. 487 to include "performing other related duties."
- A town administrator could apply for and accept from town employees under his supervision a generally available federal housing rehabilitation grant for his personal residence. He was exempt from section 20 by virtue of subsection (e), and section 17 did not apply as he was acting on his own behalf. The town employees were required to disclose the relevant facts to avoid violating section 23(b)(3).
- A City Councillor is prohibited by section 20 from holding full-time municipal employment in the same City. A City Councillor cannot rely on the special municipal employee provisions of section 20. In addition, section 20(b) is not applicable to full-time municipal employment.
- A state employee who chose to take required "furlough" time (under St. 1990, c. 6, section 90) as unpaid leave continued to be a state employee under G.L. c.268A, in view of the employee's receiving continued health insurance and other benefits and having a reasonable expectation of returning to work. However, the employee was a "special state employee" for the purpose of analysis under Sections 4 and 7.
- A member of the General Court may own and operate a consulting/seminar business within the confines of G.L. c. 268A. However, certain conditions apply to the business, the most restrictive of which prohibits the business from providing any services on matters involving Massachusetts legislative activities. Those services are prohibited by section 23(b)(1) because they would be inherently incompatible with the office of a state legislator. NOTE: THE COMMISSION DID NOT ADDRESS WHETHER section 23(d) WOULD ALTER THIS CONCLUSION.
- A City Councilor may also be employed by a "community action agency," subject to the usual limitations on a regular municipal employee's outside employment, because a community action agency is not a "municipal agency" under G.L. c. 268A.
- A member of a town's board of assessors may not be appointed to a paid position (assessors' clerk) under the supervision of the board of assessors unless: (1) the board of selectmen designates the clerk's position as a special municipal employee position; (2) the assessor complies with the section 20(d) exemption; and (3) pursuant to section 21A, the appointment is approved at an annual Town Meeting.
- A regional school committee member may enter into a contract with the regional school district only if regional school committee members are designated as special municipal employees by the boards of selectmen or city councils of all of the member municipalities. The committee member would also have to comply with the section 20(d) exemption, which requires him to make public disclosure of his financial interest in the contemplated contract with the school district, and also requires the boards of selectmen or city councils of all of the member municipalities to approve the exemption.
- A housing inspector for a housing authority may (as a private landlord) receive housing assistance payments made on behalf of an eligible tenant, because the inspector does not have responsibility for the administration of the subsidy program. Since the inspector's role in the subsidy program is limited to conducting on- site inspections, he qualifies for the exemption found in section 20(h).
- Section 7 prohibits an employee of a state agency from having a financial interest in state subsidized rents (or other state benefits paid directly to the state employee in exchange for goods or services) unless she can rely upon an exemption to section 7. In addition, section 23 prohibits a state employee from initiating private business relationships with person over whom she exercises official authority.
- Under recent case law and Commission precedent, this opinion reviews and modifies some of the Commission's conclusions in EC-COI-90-2. The Martha's Vineyard Land Bank is an instrumentality of each of the member municipalities and is a "municipal agency" for conflict law purposes. Land Bank Commissioners and Town Advisory Board members who are also private real estate brokers are subject to the restrictions contained in sections 17, 19, 20 and 23.
- A Selectman may hold two additional municipal positions if the town’s other Selectmen designate the two positions as being of "special municipal employee" status, and approve his holding of the other positions as required by section 20(d). Alternatively, the Selectman must comply with the conditions of the Selectman's exemption.
- Section 20 prohibits a full-time municipal highway department employee from holding the elected office of Alderman-at-large where as alderman-at- large he will have either regulatory control or will participate in activities of the municipal highway department.
- Section 7 prohibits a full-time state employee from being employed by a private vendor pursuant to the vendor's contract with the very same state agency by which he is employed.
- A full-time municipal employee is not ordinarily eligible for "special municipal employee" status, even where his hours are not 9-5. A full-time "regular" municipal employee who does not fulfill all of the requirements of section 20(b) may not hold a second position with the same municipality.
- A full-time municipal employee may provide services to more than one municipal agency, when all duties to be performed are considered part of a single employment contract. If the employee is elected Selectman, she will (1) be required to obtain an exemption under section 20(d) if she wishes to receive compensation for her appointed position; and (2) be unable to participate in any matters relating to her employment as Assistant to the Selectmen's board. Further, if she is elected Selectman, her future re-appointment as Assistant must be approved by a vote of Town Meeting members, under the restrictions of section 21A.
- Members of school councils, established by the Education Reform Act of 1993, are considered "municipal employees." Elected members of school committees may also serve on school councils without violating sections 17(c), 19 or 20. Note that, in the instance where a school committee member is appointed rather than elected, the member would have to receive a section 20(b) or section 20(d) exemption in order to also serve as a member of a school council. Principals and teachers may serve as members of school councils without violating section 20.
- 268A and 268B would regulate the private law practice of a potential appointee to the State Ethics Commission. The potential appointee would be unable to take any official action on matters involving clients represented by her private law firm. Fellow members and associates of her firm (which is a Professional Corporation) are not "partners" for the purposes of section 5(d), unless there is reason to disregard the corporate entity.
- A staff member of the State Board of Retirement (Board) may seek election to the Board and may continue to hold his current full-time staff position if he is elected to the Board. If he is elected, he will not need a section 7(e) exemption, as the Board's enabling statute requires that the elected member be a current or retirement member of the state retirement system. Thus, he would serve on the Board by virtue of his state position, which is analogous to an ex officio post. Additionally, the Board member must be an active participant in the retirement system, the enabling statute contemplates that he will participate in particular matters that affect all retirement system participants, including himself. Therefore section 6 will not prohibit such participation.
- A court officer can also serve as a constable. Under section 4(a), she may receive compensation as a constable from non-state parties, even where the state is a party to the particular matter, as such compensation is "provided by law." (See EC-COI-03-1, which finds that such compensation is not "provided by law.") However, she must obtain a section 7(b) exemption to provide paid constable services on behalf of a state agency, and an exemption to section 20 to provide paid constable services on behalf of a municipal agency. She may not act as a constable for the Trial Court, as court officers are employees of the entire trial court, rather than the department to which they have been assigned, pursuant to the Court Reform Act. Finally, section 23 imposes restrictions on solicitation for her constable business.
- Using a five-factor jurisdictional test, a Governor's advisory commission is determined to be a public instrumentality for purposes of G.L. c. 268A. Members of the commission who are not otherwise employed by the Commonwealth will be subject to the conflict of interest law as special state employees.
- A compensated member of a city housing authority board is advised that, if he is elected as a city councillor, G.L. c. 268A, section 20 will prohibit him from accepting the stipend paid to housing authority members. Because the board position was not publicly advertised, he would not qualify for a section 20(b) exemption, and, by its terms, the "housing authority exemption" to section 20 applies only to housing authority employees, and not to board members.
- A state employee is advised that, under the provisions of G.L. c. 268A, §7(a), he may dispose of his financial interest in a state contract by placing all of the stock in the affected company in an irrevocable trust for the benefit of his wife, as long as he does not retain any reversionary interest at any time.
- A full-time state employee may continue her part-time job with a state vendor that provides domestic violence shelter services.
- A state Department of Housing and Community Development employee will violate section 7 by receiving as a landlord Massachusetts Rental Voucher Program and Section 8 Program rent subsidies under contracts with a municipal housing authority and a regional non-profit corporation, respectively, each of which receives those funds under contract with the Department of Housing and Community Development.
- A city councilor has a prohibited financial interest in a contract with the city if he were to provide legal services as a law firm associate to the school committee. For purposes of a section 20(b) exemption, he is not employed by an agency which regulates the activities of the school committee, nor does he have any official responsibility for the activities of the school committee.
- A municipal wiring inspector is allowed by a local option statute to perform electrical work in the municipality, but is prohibited from receiving compensation for performing electrical work unless he can comply with section 20.
- A high school counselor who is elected to the city council is not allowed to accept a paid position as an assistant principal or principal in the school system
- A member of the general court is permitted to receive compensation from an educational institution of the Commonwealth for employment as an adjunct faculty member and is also permitted to be compensated as the coordinator for evening services.
- A housing authority employee who has responsibility for administering only the rental programs in the housing authority may qualify for the G. L. c. 268A, section 20(g) exempt-ion in order to purchase a housing unit under the housing authority's home ownership programs.
- Otherwise qualified municipal employees may participate in a senior citizen property tax work-off abatement program established pursuant to [by] G.L. .c. 59, section 5K as long as they are able to secure an exemption to section 20 of G.L. c. 268A. Every participant in an abatement program will be considered a municipal employee for the purposes of G.L. c. 268A during the time they participate in the abatement program and must comply with the restrictions of G.L. c. 268A. Abatement program participants are eligible to be designated as special municipal employees.
- In order to serve as a foster/pre-adoptive parent, adoptive parent or guardian and receive the corresponding payments for those programs, a state employee will need to qualify for an exemption under section 7 of G.L. c. 268A. Many state employees are eligible for one of the available exemptions. Full-time DSS employees and part-time DSS employees who are not special state employees, however, do not qualify for any exemption under section 7. Thus, in order for these employees to participate in the DSS programs the creation of an additional exemption in section 7 is necessary. All special state employees employed by DSS may use the section 7(e) exemption. All other full-time and part-time state employees who are not special state employees, are generally eligible for the section 7(b) exemption.
- The lease of a slip or berth in a public marina operated by the Town of Barnstable is a contract for purposes of G. L. c. 268A. A municipal employee must qualify for an exemption under section 20 in order to lease a slip or berth. A mooring permit is not a contract for the purposes of G.L. c. 268A and does not require a municipal employee to qualify for an exemption under section 20.
- Section 7 applies where a newly-elected state legislator has a financial interest in a state contract negotiated prior to his election.
A state legislator and candidate for Governor may not own a 23% interest in a company that has two contracts with Massport, when those contracts were not competitively bid.
Office of Children employees would violate section 7 by participating in a daycare scholarship program and accepting benefits of OFC grants unless they could obtain a section 7(e) exemption from the Governor. Other state employees could participate in the daycare scholarship program and accept OFC grant benefits under the section 7(b) exemption.
A Selectmen is eligible to be appointed as the Alternate Building Inspector provided that he leave the board and wait 30 days before being appointed. The opinion discusses the application of section 20 and 21A.
Section 7 prohibits a state employee from participating in a Home Ownership Opportunity Program administered by the Executive Office of Communities and Development.
A teacher does not violate section 20 by receiving royalties from the sale of a book he authored that was purchased by the school department where the collective bargaining contract contemplates that teachers may engage in extra-curricular activities that may include publishing activities for which royalties may be paid.
Section 20 prohibits a member of the Board of Selectmen from being appointed as the project manager on the Local Assessment Committee.
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A Mental Health Advisory Council formed to advise the Commissioner of the Department of Mental Health is a state agency under G.L. c. 268A, section 1(p). The appointed, unpaid members of the Council are special state employees. Pursuant to section 7, a member may not have a financial interest in a contract with DMH unless they qualify for an exemption under section 7(e).
A county employee is advised that G.L. c. 268A would prohibit him from also performing paid consultant services for the county.