January 12, 1987

FACTS:



You serve as an elected member of the Prudential Committee of
a municipal fire district (District). The district was established pursuant to a special act of the Legislature and is subject generally to the provisions of G.L. c. 48.[1] The District is an independent entity not subject to the authority of the Board of Selectmen or the Town (Town). It conducts its own annual district
meeting at which appropriations and other matters are approved.

The District elects a three-member Prudential Committee
whose responsibilities are not entirely clear. Although many of its duties established in the special legislative act seem obsolete, the Committee's major responsibility is to expend the money the district meeting appropriates through a
treasurer elected by the District. See, G.L. c. 48, s.71.[2]. Section 73 of G.L. c. 48 establishes a limited relationship between the Town and the District. Under s.73, the District clerk will periodically certify to the Town assessors the amount of taxes necessary to be raised, and in turn, the assessors presumably add
this total to the Town tax bills. Section 73 provides that:

the assessors, treasurer and collector of a town in which such district is organized shall have the same powers and perform the same duties relative to the assessment and collection of the money voted by the Fire District as they have exercised relative to the assessment, collection and abatement of town taxes.

In effect, these town officers act as the agent of the District in the collection and assessment of taxes.

In addition to your Prudential Committee membership, you are a
call firefighter for the District. You receive your hourly compensation from the District through an unincorporated fraternal organization, the ABC Hose Company (Company), which has historically acted as the conduit for the payment from the District for call firefighters' services.


QUESTIONS:


1. Is the District a municipal agency for the purposes of G.L. c. 268A?

2. In your capacity as a District Prudential Committee member, are you an employee of the District or of the Town?

3. Are you eligible for classification as a "special municipal employee" as a member of the District Prudential Committee?

4. Does G.L. c. 268A, s.20 permit your receipt of compensation for serving as a District call firefighter while you remain a member of the District Prudential Committee?


ANSWERS:


1. Yes,

2. You are a municipal employee of the District and not of the
Town.

3. No.

4. No.



DISCUSSION:


1. Municipal Employee Status



We conclude that the District is an independent



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municipal agency within the meaning of G.L. c. 268A, s.1(f), and that you are a municipal employee of the District within the meaning of G.L. c. 268A, s.1(g) by virtue of your membership on the District Prudential Committee.

Although districts are not identified expressly as municipal agencies under s.1(f), both the Ethics Commission and the Attorney General have concluded that districts supported by public funds to provide municipal services are independent "municipal agencies" for the purposes of G.L. c. 268A, s.1(f). For example, in EC-COI- 82-25 the Commission concurred with Attorney General Conflict Opinions No. 98 and 384 that a regional school district supported solely by public funds engaged in providing mandatory educational services to member municipalities is an independent municipal agency under G.L. c. 268A. See, also, EC-COI-74 (private industry council found to be an independent municipal agency by virtue of
decision-making function in the expenditure of public funds or in the operation of publicly-mandated programs); EC-COI-79-42 (manpower consortium of member municipalities found to be independent municipal agency).

We note that, for jurisdictional purposes, the question is not whether a governmental agency is covered by G.L. c. 268A but rather which sections of G.L. c. 268A most appropriately apply to that agency. Compare, EC-COI-63 (the county, as opposed to the state or municipality, appears to be the level of government served by a county regional housing authority). See, also, EC-COI-157. Here, the District cannot reasonably be regarded as serving a state or
county constituency.

Although the Commission has not previously determined the municipal agency status of fire districts, such districts have been regarded explicitly as quasi-municipal agencies long before the enactment of conflict of interest laws. See, Presidents etc. of Williams College v. Inhabitants of Williamstown, 219 Mass. 46 (1914). In addition, the Commission's reasoning with respect to other independent districts applies to fire districts, given that the District is supported by public funds and provides services customarily provided for the public.

As a member of the District Prudential Committee, it follows that you are a municipal employee of the District. See, G.L. c. 268A, s.1(g). While it is true that the geographic boundaries of the District and Town are the same, the geographic coincidence does not make you an employee of the Town for G.L. c. 268A purposes because the District is operationally independent of the Town. The
District is in essence a corporation with the power to sue and be sued in its own name, to raise its own revenue by taxation on all real and personal property within the District, and is free of control or supervision by any agency of the Town, such as the board of selectmen. See, Prout v. Pittsfield Fire Department, 154 Mass.
450(1891). Moreover, the Attorney General has acknowledged the independence of fire districts even where the District is entirely within the territorial boundaries ofa city or town. Thus, the words "chief of a city or town fire department do not include the chief of a fire district even where the fire district is within the
town and there is no other fire department of the town. Op. Atty. Gen., Oct. 23, 1984, p.42.



2. Special Municipal Employee



We conclude that you are not eligible for classification as a "special municipal employee" in your capacity as a District Prudential Committee member. The plain language of the special municipal employee definition authorizes the granting of such status only in cities or towns. Districts are not recognized as agencies possessing the capacity to grant special municipal employee status, and we are reluctant to infer such capacity in the absence of statutory authority.

The Legislature may very well have intended to preclude the granting of special employee status to employees and members of a district. Because the granting of special status leads to permission to take advantage of additional financial opportunities in public and private dealings with a district, see, G.L. c. 268A, s.s.17, 20, the Legislature could reasonably have intended to prevent such opportunities in districts whose limited organizational structure may be susceptible to undue insider influence. We also note that in G.L. c. 121B, s.7 the Legislature expressly defined members of housing and redevelopment authorities
and certain part-time employees as "special municipal employees" for the purposes of G.L. c. 268A. The enactment of c. 12lB, s.7 may have reflected a legislative intent to authorize special municipal employee status in light of the uncertainty of the scope of special municipal employee status as defined in s.1(n) of G.L. c. 268A. The amendment to c. 121B s.7 would have been unnecessary otherwise. We therefore conclude that the determination of eligibility for
granting and receiving special municipal employee status rests with the Legislature, and that the authorization for granting special status to district employees cannot be inferred from s.1(n).

We do not believe that the Board of Selectmen of the Town possesses the authority to classify district employees as special municipal employees under s.1(n). Since the Board of Selectmen has no interaction or authority over the personnel decisions of the District, the Board of Selectmen could not reasonably classify all employees who hold equivalent office, or have knowledge of the
contract or conditions of employment of District employees. It is for this reason that s.1(n) appears, on its face, to limit its application to "all employees of any city or town" and does not extend to all employees of any city, town or district. Further, s.s.20(c) and 20(d) do not make policy sense unless the Legisla-

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ture contemplated that special municipal employees were either city or town employees. The requirement of disclosure with the town clerk [s.20(c)] or approval of an exemption from s.20 by the Board of Selectmen [s.20(d)], for example, logically assumes accountability of the employee to the town. As we have seen,
District members have no accountability to the Town.

A construction which would permit the Town officials to designate District members as specials would also create absurd results. By analogy, in the case of regional districts, it would be necessary to determine whether all towns, certain towns, or some combination of towns should be the designating authority. A rule
which would permit a District member to forum-shop from town to town until he obtained favorable treatment would be inconsistent with any concept of political accountability. Any other rule would, of necessity, require an arbitrary selection formula which would be inconsistent with the Legislature's intent to limit, in s.1(n),
Eligiblity for special municipal employee exemptions.

While we are aware of our responsibility to give G.L. c. a workable meaning, Graham v. McGrail, 370 Mass. 133 (1976), we are unwilling to recognize a designation authority which is not authorized by G.L. c. 268A and does not provide a workable solution to the statutory void.[3]



3. Call firefighter employment



We conclude that your service as a call firefighter for the District gives you a financial interest in a contract made by the District in violation of G.L. c. 268A, s.20, and that no exemptions apply to you. Your employment relationship with the District which compensates you for your call firefighter services is a contract in which you have a financial interest. See, Doherty v. State Ethics Commission, Suffolk Superior Court Civil No. 58535 (February 27,1984) affirming the Commission's conclusion that an arrangement for personal services in exchange for compensation creates financial interest in a contract for the purposes of G.L. c. 268A.[4]

The only exemption which is relevant to your situation is s. 20 (f), the so called "call firefighter exemption." The issue is whether the call firefighter exemption in s. 20 applies to fire districts. The literal language of this exemption clearly does not
apply because the exemption applies to a fire department "of a town." The District, as we have seen, is not a fire department of a town but an independent entity. Once again, we are reluctant to infer an exemption for district call firefighters in the absence of more explicit authority. Our conclusion is consistent with our obligation to constrve strictly an exemption from a general
statutory prohibition. See, Department of Environmental Quality Engineering v. Town of Hingham, 15 Mass. App. Ct. 402, 412 (1983).[5]

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[1] G.L.c. 48, s.80 makes clear that the District would be subject to G.L. c. 48: "Fire districts heretofore legally organized shall continue and be subject to the provisions of this chapter relative to Fire Districts."

[2] G.L.c. 48, s.71 provides in pertinent part: "Such districts shall choose a prudential committee, which shall expend, for the purposes prescribed by the district, the money so raised or borrowed, and shall choose a treasurer... he shall receive all money belonging to the district, and shall pay over and account for
the same according to its order or that of the prudential committee."

[3] We have also considered other configurations but find them equally unsatisfactory. In particular, if district prudential committee members are treated as the functional equivalent of boards of selectmen, it could be argued that district prudential committee members could, by implication, possess the same powers
as boards of selectmen, including the authority to designate district employees as special municipal employees. Even if we were to adopt this construction by implication, the result in your case would not be different Because members of boards of selectmen in communities of more than 5000 residents are ineligible for special municipal employee status, it follows that district members in
districts of more than 5000 residents, such as the District, would be similarly ineligible for such status.

[4] We regard the ABC Hose company as merely a conduit for the payment of District compensation. Assuming, for the sake of argument, that you were an employee of the ABC Hose Company in performing fire services, your receipt of compensation would place you in violation of s.17(a).

[5] In view of our conclusion that the District is an independent municipal agency, nothing in G.L.c. 268A outright prohibits a full-time employee of the Town from serving as a member of the District Prudential Committee. The employee would be required, however, to abstain from participation in his Town position in any particular matter in which the District has a financial interest. see, G.L.c.
268A, s.19; EC-COI-82-25.

End Of Decision