September 16, 1987

FACTS:


You are the town counsel for a Town (Town). You seek formal
guidance from the Commission in construing G.L. c. 268A, s.20,
s.21A and sections of the recenlly enacted town charter.[1] Under
the terms of the charter, a full-time town administrator will be
appointed. During the interim period, the charter authorizes the
Board of Selectmen (Board) to either act as the town administraor
or to appoint a temporary town administrator. Under the charter,
the Board may designate "a town employee, other person, or a member
of the Board of Selectmen to exercise the rights and perform the
duties of the Town Administrator during any vacancy caused by the
temporary absence of the Town Administrator."

The Board has unanimously voted to appoint ABC, a Board member,
as the temporary Town Administrator, and ABC has received
compensation in the temporary position. In response to a request
for an advisory opinion pursuant to G.L. c. 268A, s.22, you advised
ABC that approval by the town voters of the provisions of the town
charter exempted him from the 30-day waiting period of G.L. c.
268A, s.21A [2] and from the outright prohibition on selectmen
accepting other municipal positions contained in G.L. c. 268A,
s.20.[3]


QUESTIONS:


1. Does G.L. c. 268A, s.20 permit ABC to be appointed and
compensated as the temporary town administrator?

2. Does the Town's purported compliance with G.L. c. 268A, s.21A
or the charter provisions relating to interim appointments result
in ABC's exemption from the prohibition of s.20?

Page 174


ANSWERS:


1. No.

2. No.


DISCUSSION:


The plain language of G.L. c. 268A, s.20 prohibits a selectman
from being "eligible for appointment to any such additional
position while he is still a member of the board of selectmen or
for six months thereafter." The General Court adopted this
restriction in response to its concern that selectmen would or
could acquire additional municipal positions by virtue of their
incumbency. See, EC-COI-82-107. "The enactment of the six-month
waiting period therefore reflects the legislature's view that the
period is desirable in light of the authority and visibility which
accompanies the office of selectmen. EC-COI-83-1.

The Commission has consistently applied this language to
prohibit a selectman from acquiring a second compensated position
in the same municipal goverlrment until a six-month waiting period
has elapsed following his service as a selectman. See, EC-COI-87-
12; 83-1; 82-107
.[4]

We conclude that the plain language of s.20 also applies to ABC,
inasmuch as he has been appointed to a compensated position while
a member of the Board of Selectmen. He can comply with s.20 by
refraining from receiving compensation as temporary town
administrator, thereby divesting his financial interest in a
contract made by the town. He would not comply with s.20 solely by
declining compensation as a selectman, because he would retain his
impermissible financial interest in his town administrator
contract. He would, in effect, be benefitting financially from his
incumbency.

Even assuming that ABC's temporary appointment could be regarded
as having been approved by an annual town meeting within the
meaning of s.21A, compliance with s.21A does not supercede the
restrictions of s.20 applicable to selectmen. In EC-COI-83-1, we
expressly held that the selectman provisions of the later statute,
s.20, prevailed over the earlier, less restrictive provisions of
s.21A. We see no reason either as a matter of law or policy to
alter this conclusion. In particular, we cannot infer that the
General Court intended to permit an annual town meeting to override
the express prohibitions of s.20.

With respect to the Town's compliance with the temporary
appointment provisions of the charter, we see no conflict between
the express terms of the charter and G.L. c. 268A, s.20. The
charter authorizes the appointment of a selectman as acting town
administrator but does not, by its terms, authorize the appointee
to receive compensation in carrying out the temporary duties.
Absent receipt of compensation for additional duties, a selectman
does not violate s.20. We decline to assume a conflict where none
exists between the terms of G.L. c. 268A and the charter. Should
such a conflict arise, however, absent a clearly stated intent by
the General Court, we will regard the plain language of G.L. c.
268A, s.20 as prevailing over the conflicting charter.[5]

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

[1] Prior to the adoption of the charter, the Attorney Ceneral
determined that the charter was "not inconsistent with the
constitution and laws enacted in pusuance thereto." You do not
contend, nor do we conclude the Attorney General's review to
constitute a determination regarding the application of G.L. c.
268A to the appointment of a temporary town administrator.

[2] G.L.c. 268A, s.21A provides that, absent town meeting approval
or completion of a 30-day waiting period following completion of
services, "no member of a municipal... board shall be eligible for
appointment.,. by the members of such . . . board to any office or
position under the supervision of such... board."

G.L.c. 268A, s.20, in relevant part, provides that no "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."

[3] Pursuant to 950 CMR 1.03, the Commission's Executive Director
reviewed your advisory opinion and advised you on August 9, 1987
that the Commission staff did not concur with your conclusion or
reasoning. You have recently requested that the full Commission
review your advisory opinion.

[4] The only exception to this rule, applicable to individuals who
serve as selectmen in small towns and have been classified as
special municipal employees, is not relevant here. S ee, EC-COI-82-
106; 87-96
.

[5] This advisory opinion is prospective and does not address the
propriety of conduct which has already occurred In particular, the
question of whether ABC improperly participated in an appointment
as temporary town administrator cannot be addressed in the context
of an advisory opinion.

End Of Decision