Dear


You are the Town Counsel for the Town of ABC (Town) and have
submitted to the Commission a request for an advisory opinion over
the application of G.L. c. 268A, s.20[1] as most recently amended by
St. 1982, c. 107,[2] on behalf of a Town school teacher who was
recently elected as a member of the Town Board of Selectmen.


In 1981, following the enactment of St. 1981, c. 430,[3] the
Town classified the position of selectmen as a "special municipal
employee" under G.L. c. 268A, s.1(n). As a result, you advised a
Town school teacher in January, 1982 that the receipt of
compensation for the positions of teacher and selectman was
permissible under s.20, subparagraph (c), since, as a selectman,
the individual did not participate in or have official
responsibility for the activities of the School Committee. Inasmuch
as the May, 1982 amendment to s.20 specifically prohibits the
receipt by a selectman of compensation for more than one office or
position, you ask whether the amendment, in effect, repeals the
prior application of s.20 to selectmen who have been classified as
special municipal employees. The Commission advises you that it does not.


Although the Commission does not ordinarily render advisory
opinions over the application of G.L. c. 268A to municipal employees
and will instead refer municipal questions to Town Counsel under
G.L. c. 268A, s.22, the Commission deems it appropriate to render an
opinion on the question of law which you have raised. Since
May,1982 the Commission has received several comparable inquiries from
municipal officials and Town Counsels over the interpretation of
G.L. c. 268A, s.20 in light of the enactment of St. 1982, c. 107.
The opinion which you seek would therefore be of general
application and would provide a uniform interpretation to
communities similarly situated. See, EC-COI-80-89; 82-25.


In rendering this opinion, the Commission has relied upon the
facts as you have stated them and has not made any independent
investigation of those facts.


Prior to the enactment of St. 1981, c. 430, a Town selectman
could not lawfully receive compensation as a Town school teacher
under G.L. c. 268A, s.20, since the less restrictive provisions of
s.20 which would be otherwise applicable to special municipal
employees were not available to members of the Town board of
selectmen. Following the enactment of St. 1981, c. 430, the Town
availed itself of the opportunity to classify its selectmen as
special municipal employees because the Town's population did not
exceed the statutory limit of 5000. Accordingly, Town selectmen
thereafter could lawfully receive compensation for their teaching
services for the Town.


During the 1982 legislative session, the General Court
considered proposals to permit teachers to serve as selectmen under
s.20. The proposals were filed in response to the Commission's 1980
advisory opinion EC-COI-80-89 and Walsh v. Love, Norfolk Superior
Court Civil Action No. 132687 (July 2, 1981), which had held that
the teacher selectman arrangement violated s.20. During the
legislative consideration of House Doc. No. 1657, the House of
Representatives adopted language amending s.20 which; in all
substantive respects, was enacted into law as St. 1982, c. 107. The
new language expressly permits town employees to hold the office of
selectman but adds the condition that the selectman may receive
compensation for only one town office or position.


The Commission concludes that the 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).


This conclusion is based not only on the limited corrective
purpose of the new amendment but also on a rule of statutory
construction which rejects an implied repeal of previously enacted
legislation, in this case St. 1981, c. 430.[4] Moreover, the
Commission's interpretation is consistent with its answers to
similar questions which were posed following the passage of the so
called "municipal exemption," St. 1981, c. 10. In EC-COI-80-102 and
80-72, the Commission found that the amendment left unchanged the
provisions of s.4 relative to special state employees.


The Commission's conclusions in this case harmonize the effect of recent amendments to the status of selectmen who wish to serve
simultaneously as teachers in the same community and reflect the
Commission's obligation to give G.L. c. 268A a workable meaning.
See, Graham v. McGrail, 370 Mass. 133, 140 (1976).

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

[1] G.L. c. 268A, s.20 provides, in pertinent part, as follows:
(a) 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.

This section shall not apply..

(c) to a special municipal employee who does not participate
in or have official responsibility for any of the activities
of the contracting agency and who files with the clerk of the
city or town a statement making full disclosure of his
interest and the interests on his immediate family in the
contract...


[2] This most recent amendment adds the following language to
s.20:
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 that 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 provided further that no member shall be
eligible for appointment to such additional position while a
member 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 require. No such selectman shall
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.


[3] St. 1981, c. 430 increased from one thousand to five
thousand the maximum population eligibility under which a town
could classify its selectmen as special municipal employees.


[4] See, Registrar of Motor Vehicles v. Board of Appeal, 1981
Mass Adv. Sh. 415, 416 N.E. 2d 1373 (1981); Commonwealth v. Hayes,
372 Mass. 505 (1977).

End Of Decision