April 10, 2001

 

FACTS:


You are employed full time as a school counselor at a City's
High School.[1] While holding that position, you were elected to
the City Council and have continued to serve in both municipal
positions in the City in compliance with G. L. c. 268A, s.20.[2]

You anticipate that positions as a principal or assistant
principal in the City's school system may become open. If one of
these positions were to become open while you are serving as a City
Councillor, you would like to apply for it and, if appointed,
continue to serve as a City Councillor while also receiving a
salary for your position as an assistant principal or principal in
the City's school system.

School counselors are part of the same union collective
bargaining unit as assistant principals and each position operates
under the same collective bargaining agreement. If you were
appointed an assistant principal, you would, however, receive a
higher salary than your current school counselor's salary. By
contrast, principals are not part of a union because they are
considered managers in the school system. As a result, each
principal has a separate contract with the school system.

You assert that the normal progression for school counselors
or teachers is to move up to school administration. You compare
this advancement to the promotion system for the Fire and Police
departments, where, based on examinations, fire-fighters or
officers move up the ranks to Sergeants or Lieutenants.

 

QUESTION:

May you, while serving as a City Councillor, relinquish your
current paid position as a school counselor and accept a paid
position as an assistant principal or principal in the City's
school system under the "city councillor's exemption" to G. L. c.
268A, s.20?

 

ANSWER:

No. For the reasons described below, s.20 will prohibit you
from being appointed and paid to become an assistant principal or
principal while you are a City Councillor.


 

DISCUSSION:


As a school counselor, you are a municipal employee[3] under
the conflict of interest law. When you later became a City
Councillor, you also became a municipal employee in that capacity
for purposes of the conflict of interest law. Because, as a City
Councillor, you also have a financial interest in your contract
with the City to serve as a school counselor, you must comply with
G L. c. 268A, s.20, which prohibits you from having such a
financial interest[4] unless you qualify for one of the statutory
exemptions. Section 20 imposes a broad prohibition against a
municipal employee's having an additional "financial interest,
directly or indirectly, in a contract made by a municipal agency of
the same city." As we said in EC-C0199-2, s.20 "is intended to
prevent a municipal employee from influencing the awarding of
contracts by any municipal agency in a way which might be
beneficial to the employee" and "'is concerned with the ...
potential for impropriety as well as with actual
improprieties.'"[5]

As noted above, you have complied with the "city councillor's
exemption" in order to hold both positions. In pertinent part, this
exemption states:

This section shall not prohibit an employee of a
municipality with a city ... council form of government from
holding an elected office of council nor in such municipality,
nor in any way prohibit such an employee from performing the
duties of or receiving the compensation provided for such
office; provided, however, that no such councillor may vote or
act on any matter which is within the purview of the agency by
which he is employed or over which he has official
responsibility; and provided, further, that no councillor
shall be eligible for appointment to such additional position
while a member of said council or for six months thereafter,
Any violation of the provisions of this paragraph which has
substantially influenced the action taken by a municipal
agency in any matter shall be grounds for avoiding, rescinding
or cancelling such action on such terms as the interest of the
municipality and innocent third parties require. No such
elected councillor shall receive compensation for more than
one office or position held in a municipality, but shall have
the right to choose which compensation he shall receive.[6]

Here, the issue is whether the phrase "no councillor shall be
eligible for appointment to such additional position " prohibits
you from becoming an assistant principal or principal while you
continue to serve as a City Councillor.


(a) Statutory Language


We begin our analysis with the plain meaning of the statutory
language of the restriction.[7] The exemption a] lows a compensated
municipal employee also to become a city councillor, under certain
conditions. However, the individual shall not be eligible for
appointment to "such additional position." The word "such" commonly
means "of a kind or character about to be indicated, suggested
or exemplified,"[8] or "previously characterized or specified."[9]
In this context, such must refer to a municipal position. The word
"additional" plainly refers to something that is added.[10]"
Accordingly, the restriction appears, at a minimum, to prohibit you
from holding a third paid municipal employee position, in addition
to the school counselor and City Councillor positions.

Although the plain language prohibits adding a third municipal
position in which the individual has a financial interest in a
contract, it is unclear whether it is also meant to prohibit
substituting the city councillor's preexisting municipal position
for another position in which he has a financial interest in a
contract, such as changing from school counselor to assistant
principal or principal.[11]

There is not necessarily only one antecedent term to the
phrase "such additional position" in this exemption. Although we
know "such" must refer to a municipal position, it could refer
either to the antecedent phrase "employee of a municipality" or the
phrase "elected office of councillor" or both positions. However,
given that "such additional position" appears most closely after
"no councillor," it may be that the phrase is intended to refer to
a position in addition to that of city councillor.

In any event, if "additional" means "existing by way of
addition," it is unclear whether the phrase "such additional
position" should also include a municipal position that exists by
way of substitution for the prior municipal position. We have no
doubt, however, that a change or a promotion from the school
counselor position to an assistant principal's position or
principal's position would constitute new positions in the school
system. And either of these new positions would be in addition to
your position of City Councillor.


(b) Legislative History


To help us understand the meaning of "such additional
position" because its meaning is open to different interpretations,
we may resort to the statute's legislative history.[12] We also
consider such factors as "the evil or mischief toward which the
statute was apparently directed",[13] the purpose of the
legislation, in that "the purpose and not the letter of the statute
controls"[14] and the "fair import" of the statute.[15]

In 1999, the Legislature created the exemption for city
councillors by amending the existing exemption for town
councillors.[16] That exemption, when formerly available only to
town councillors,[17] was patterned after another exemption to s.20
for selectmen. The Legislature created this latter exemption, the
"selectman's exemption,"[18] in response to decisions by the Ethics
Commission and the Superior Court which held that s.20 prohibited
current town employees from continuing to be paid in their primary
municipal jobs while also serving as selectmen.[19] Similarly, the
exemption for town councillors was enacted in response to opinions
by the Commission[20] Because the relevant language in the
selectman's exemption is identical to the language in the current
city councillor's exemption and the language first appeared when
the Legislature added the selectman's exemption to s.20, we may
look to the legislative history of the selectman's exemption to
determine the legislative intent of the phrase "such additional
position."[21]

As noted above, prior to the enactment of the selectman's
exemption, the Commission interpreted s.20 to prohibit a selectman
from continuing to receive compensation for serving in the
municipal position he held prior to election. The Legislature and
the Governor considered the fact that approximately twenty
teachers, who were elected to boards of selectmen, would have to
relinquish their teacher salaries or resign from their boards to
comply with s.20, unless the amendment that became St. 1982, c. 107
was enacted.[22]

The bill, as initially filed by its sponsor, Representative
Cellucci, did not include the clause "and provided further that no
member shall be eligible for appointment to such additional
position while a member or for six months thereafter."[23]
Representative Cerasoli moved to amend the bill by adding that
clause.[24] In response, the Executive Director of the Ethics
Commission wrote to State Senator Fonseca noting, "This new
language limits the dual relationships to selectman and some other
position. It also guards against a selectman using his position to
get himself the other job. For example, it would not prohibit a
person who is already a teacher in a town from then becoming
selectman. However, a selectman could not be appointed as a teacher
while he served as selectman . . ."[25]

Notably, in explaining the legislation in his letter to the
Governor, the sponsoring legislator stated, "1.) No such member may
vote or act on any matter which is within the purview of the agency
by which, he is employed or over which he has official
responsibility, and 2.) No member shall be eligible for appointment
to such additional position while a member or for six months
thereafter. Thus, for example, a teacher can be elected and serve
as a selectman in the town he teaches, but he cannot vote, on a
matter which effects [sic] the school system, but a selectman who
is not a teacher or other municipal employee cannot be appointed as
a teacher or other municipal employee during his [selectman's]
term..."[26] In sum, the selectman's exemption allows an elected
selectman to retain his pre-existing municipal position.

Subsequent to the enactment of St. 1982, c. 107, the
Commission was asked to consider whether the selectman's exemption"
would prohibit a municipal employee, who was later elected
selectman, from being reappointed to his pre-existing municipal
position. The Commission observed in EC-COI-82-107,

In response to this prohibition, the General Court
considered proposals during the 1982 legislative session to
allow dual status of selectman and employee. During the
consideration of these proposals, the General Court was made
aware of concerns over potential abuses in the dual status
arrangement in particular where selectmen could potentially
acquire other municipal positions by virtue of their
incumbency in the office of selectman.[27][28] In response to
this concern, the General Court adopted an amendment to House
Doc. No. 1657 which prohibited selectmen from eligibility for
appointment to an additional municipal position.[29] This
amendment was retained in the final language amending s.20
which was approved by the Governor as St. 1982, c. 107.

In view of the legislative history, we concluded that the
scope of the restriction "was intended to cover only new,
post-elective appointments to municipal positions and was not
intended to prohibit municipal employees from eligibility for
reappointment to positions held immediately prior to their election
as selectmen."[30] We also concluded that "to construe s.20 so that
selectmen could not be eligible for reappointment for positions
held prior to election would, in effect, nullify the legislative
purpose in enacting St. 1982, c. 107, and would be inconsistent
with the Commission's obligation to give G. L. c. 268A a workable
meaning."

However, we have not, until now, addressed the issue of
whether the selectman's exemption or its subsequent analogues would
prohibit an incumbent selectman, town councillor, or city
councillor, as the case may be, from being promoted from his first
municipal employee position to another position within the same
municipal agency.

Here, the positions of assistant principal and principal are
different from the position of school counselor. Although you would
not be gaining an "additional position" by adding a third job,
which the city councillor's exemption plainly prohibits, you would
be substituting the new position of assistant principal or
principal for your current position of school counselor. Unlike the
circumstances in EC-COI-82-107, you would not be reappointed to the
same position but, rather, appointed to a new position. Like any
new municipal position, you would have to compete for it, rather
than be promoted to it only by virtue of your current position.

Mindful that we are obligated to narrowly construe exemptions
to the conflict law's prohibitions,[31] we believe that the plain
language and the policy behind the city councillor's exemption,
like the selectman's exemption, is to prevent a councillor "from
influencing the awarding of contracts by any municipal agency in a
way which might be beneficial to"[32] the city councillor. Although
the Legislature narrowed s.20's general restriction by adding the
selectman's, town councillor's, and city councillor's exemptions,
it ultimately approved the narrower of the proposed exemptions.
Thus, it remained concerned about municipal officials, particularly
at the highest levels of their respective municipal governments,
being able to acquire financial interests in "other municipal
positions by virtue of their incumbency. "[33] It would undercut
the Legislature's intent to allow you, while you are a city
councillor, to be promoted from your current municipal position to
a different municipal position, either of which would constitute
your having a financial interest in a contract for purposes of
s.20. To conclude otherwise would allow a city councillor to
"leverage" the city councillor's exemption to change his
pre-existing municipal contract position for better contract
positions in city government.

In light of the legislative intent of s.20, we are not
inclined to extend our conclusion in EC-COI-82-107 to an
appointment to a new position. Accordingly, we conclude that while
you have a financial interest in your contract to serve as a school
counselor, s.20 prohibits you from being eligible for appointment
to a principal or assistant principal's position in the City's
school system while you are also a member of the City Council or
for six months thereafter.[34]


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

[1] The background to your request is based on information you
and the City Solicitor provided.

[2] G. L. c. 268A, s.20, para. 4.

[3] "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 G
L. c. 268A, s.1(g).

[4] "A municipal employee who has a financial interest,
directly or indirectly, in a contract made by a municipal agency of
the same city or town, in which the city or town is an interested
party of which financial interest he has knowledge or has reason to
know, shall be punished by a fine of not more than three thousand
dollars or by imprisonment for not more than two years, or both."
G L. c. 268A, s.20(a).

[5] "Quoting, Quinn v. State Ethics Commission, 401 Mass. 210,
214 (1987) (holding that s.7, the state counterpart to s.20,
prohibited a state employee from having an interest in his
additional contract as a bail commissioner). For an incumbent city
councillor who holds no other municipal positions but who wishes to
add an appointed paid job with his city or have any other financial
interest in a city contract in addition to serving on the city
council, only one exemption is available. That exemption, s.20(b),
imposes significant obstacles to having a financial interest in a
municipal contract, evidencing the Legislature=s general intent to
make it difficult for a city councillor also to hold other jobs in
his city.

[6] G L. c. 268A, s.20, para. 4. (emphasis added).

[7] Int'l Organization of Masters, etc. v. Woods Hole, Martha
Vineyard & Nantucket Steamship Authority
, 392 Mass. 811, 813 (1984)
("The intent of the legislature is to be determined primarily from
the words of the statute, given their natural import in common and
approved usage, and with reference to the conditions existing at
the time of enactment. This intent is discerned from the ordinary
meaning of the words in a statute considered in the context of the
objectives which the law seeks to fulfill.")

[8] Webster Third New International Dictionary (1993). See
e.g., Brisk Waterproofing Co., Inc. v Director o the Division of
Building Construction
, 338 Mass 784, 785 (1958) (in G. L. c. 149,
s.44D, which provides that "the awarding authority shall reserve
the right to reject any sub-bid ... if it determines that such
sub-bid does not represent the sub-bid of a person competent to
perform the work. . . " the word "such" obviously refers to a
"sub-bid of a person competent to perform the work.")

[9] Id. See also Black ~ Law Dictionary (Fifth Ed.). "Of that
kind, having particular quality or character specified. Identical
with, being the same as what has been mentioned. "like, similar, of
the like kind. 'Such' represents the object as already
particularized in terms which are not mentioned, and is a
descriptive and relative word, referring to the last antecedent."

[10] "Addition" means "the result of adding: anything added"
and "additional" means "existing or coming by way of addition."
Webster's Third New International Dictionary (1993). See e.g., Town
of Burlington v. Dept. Of Educ. Com. of Mass.,
736 F.2d 773, 790
(1st Cir. 1984) (construing "additional" in the ordinary sense of
the word, "additional evidence" means supplemental evidence, thus
the clause "additional evidence" in 20 U.S.C. s. 1415(e)(2), which
requires the court to receive the records of administrative
proceedings and hear additional evidence at the request of a party,
does not authorize witnesses at trial to repeat or embellish their
prior administrative hearing testimony-this would be inconsistent
with the usual meaning of "additional"),- Chambers 1-93 v.
Mercedes-Benz of North America
, 911 F. Supp. 34, 35 (D. Mass. 1995)
(under G L. c. 9313, which prohibits a manufacturer from
"arbitrarily and without notice to existing franchisees . . ."
entering into an agreement "with an additional franchisee," the
phrase "additional franchisee" includes only a new franchisee,
rather than the sale and relocation of an existing automobile
dealership).

[11] You argue that the phrase "such additional position" is
not meant to include what amounts to advancement to other jobs
within the same career path. Here, you would like to advance in the
school system's hierarchy to assistant principal or principal.
Moreover, if appointed to one of those positions, you would not
continue to serve as a school counselor because you would be
promoted to a new position. As a result, you believe that you would
not be adding a third position to your current two municipal
positions, which, you argue, is what the exemption intends to
prohibit. You also contend that if your promotion were considered
to be an "additional position," s.20 would stifle promotional
advancement and opportunity by making a sitting City Councillor
ineligible for such a promotion.

[12] Treasurer & Receiver Gen. v. John Hancock Mut. Life Ins.
Co
., 3 88 Mass. 410, 423 (1983).

[13] Meunier's Case, 319 Mass. 421, 423 (1946).

[14] Wilsh v Ogorzalek, 372 Mass. 271, 274 (1977).

[15] Thatcher v. Secretary of Commonwealth, 250 Mass. 188, 191
(1924).

[16] The words "city or" were inserted by St. 1999, c. 7. This
act, entitled "An Act allowing certain municipal employees to serve
as city councillors," also amended G L. c. 39, s.6A and G L. c. 43,
s. 17A. We offer no opinion about whether your seeking appointment
as principal or assistant principal would be restricted under those
General Laws.

[17] St. 1985, c. 252, s.3.

[18] This section shall not prohibit an employee or an
official of a town from holding the position of selectman in such
town nor in any way prohibit such an employee from performing the
duties of or receiving the compensation provided for such office;
provided, however, that such selectman shall not, except as
hereinafter provided, receive compensation for more than one office
or position held in a town, but shall have the right to choose
which compensation he shall receive; provided, further, that no
such selectman may vote or act on any matter which is within the
purview of the agency by which he is employed or over which he has
official responsibility; and, provided further, that no such
selectman shall be eligible for appointment to any such additional
position while he is still a member of the board of selectmen or
for six months thereafter. Any violation of the provisions of this
paragraph which has substantially influenced the action taken by
any municipal agency in any matter shall be grounds for avoiding,
rescinding or cancelling the action on such terms as the interest
of the municipality and innocent third parties may require."

[19] St. 1982, c. 107 as amended by St. 1984, c. 459,
EC-COI-93-4. In EC-COI-82-107, we observed that St. 1982, c. 107
was enacted in response to the following two decisions.
EC-COI-80-89 concluded that s.20 prohibited a selectman from being
compensated to teach in his town's school system. Walsh v. Love,
Norfolk Superior Court Civil Action No. 132687 (July 2,198 1) held
also that being paid to be a teacher while also serving as a
selectman in the same town violated s.20.

[20] See e.g., EC-COI-83-38 (Commission concluded that the
selectman's exemption was not available to town councillors but
noted that bills were then pending in the legislature to expand the
exemption).

[21] "Sound principles of statutory construction dictate that
interpretation of provisions having identical language be uniform"
Webster v. Board of Appeals of Reading, 349 Mass. 17, 19 (1965).
[22] See letter to Governor King, dated May 26,1982 from Rep.
Cellucci.

[23] See House Doc. No. 1657 [January 1982].

[24] See House Doc. No. 5877 [March 15, 1982]

[25] Letter dated March 25, 1982 from Maureen McGee, Executive
Director of the Ethics Commission to State Senator Fonseca.

[26] See letters to Governor King, dated May 26,1982 from Rep.
Cellucci and May 27, 1982 from Rep. Flood. See also letter dated
March 25, 1982 from the Executive Director of the Ethics Commission
to Senator Fonseca.

[27] Emphasis added.

[28] S ee e.g., letter dated March 25, 1982 from Maureen McGee,
Executive Director of the Ethics Commission to State Senator
Fonseca (describes in detail the general purpose of s.20, the
concerns about prohibiting teachers from serving as selectmen, and
the need to provide an exemption for them without allowing "the
very kind of 'double-dipping' that Section 20 is meant to
prohibit."

[29] See House Doc. No. 5877 [March 15, 1982).

[30] Emphasis added. We observed in EC-COI-82-107 that the
title of St. 1982, c. 107, "An act providing that a person shall
not be prohibited from holding the office of selectman in a town
because such person is an employee of the Town," reflects an intent
to allow incumbent municipal employees also to serve as selectmen
while continuing their prior municipal employment.

[31] See Department of Environmental Quality Engineering v.
Town of Hingham
, 15 Mass. App. Ct. 409, 412 (1983).

[32] See note 5, supra.

[33] EC-COI-82-107 (emphasis added).

[34] Although we concluded in EC-COI-99-2 that a city
councillor, who held no other municipal position prior to his
election, may be able to qualify for an exemption under s.20(b) to
have a financial interest in a contract with his city's school
system under certain circumstances, it does not appear that you
would be able to qualify for that exemption if you were to resign
your position as a school counselor prior to being eligible for
appointment to assistant principal or principal. Among other
requirements, as noted above, s.20(b) requires that, under a
contract for personal services, the employee must not receive
compensation for more than 500 hours during a calendar year. A
contract to serve as assistant principal or principal would require
well in excess of 500 hours during a year.


End of Opinion