September 20, 1989

FACTS:


You are a municipal police officer employed the ABC Police
Department (Department), and also serve as president of an
employee organization which represents non-supervisory police
officers employed by the Department. You are contemplating
seeking election to the city council (Council) of the same
municipality.


QUESTION:


Does G.L. c. 268A permit you to serve on the Council while
also maintaining your employment as a police officer in the same
municipality?


Page 273


ANSWER:

No.


DISCUSSION:


If you are elected to the Council, you will be considered a
municipal employee for the purposes of G.L.c. 268A. In the Matter
of Kenneth Strong
, 1984 SEC 195; EC-COI-87-16; EC-COI-87-25; EC-
COI-86-19
. As a municipal employee, you will be subject to the
restrictions of G.L. c. 268A, s.20, which prohibits you from
having a financial interest, directiy or indirectly, in a
contract made by a municipal agency of the same municipality. By
virtue of your compensated employment as a police officer, you
have a financial interest in your employment contract with the
Department. See, EC-COI-80-89 (municipal teacher has a financial
interest in employment contract as teacher); In the Matter of
Kenneth Strong, supra
(maintenance worker for a housing authority
has a financial interest in his employment contract with the
authority). Cf. Quinn v. State Ethics Commission, 401 Mass. 210
(1987) (state bail commissioner has a financial interest in his
contract with the judicial department). Accordingly, your
maintaining compensated employment as a police officer in the
Department while also serving as a member of the Council will
place you in violation of G.L.c. 268A, s.20.[1]

Although there are exemptions to the prohibition in s.20, none
is applicable to you. As a member of the Council, you would be
statutorily ineligile for clasification as a special municipal
employee under G.L. c. 268A, s.1(n) and an exemption under
s.20(d). Because you serve for more than five hundred hours
annually as a police officer, the exemption under s.20(b) is not
available. Finally, although s.20 was recently amended to permit
housing authority employees to run for and hold elective
municipal offices, the exemption does not extend to municipal
agencies other than housing authorities St. 1987, c. 374.

The fact that you are prepared to abstain from participation
as a member of the Council in Department matters, while
consistent with G.L.c. 268A, s.19, does not suffice for s.20
purposes. Section 20 is preventative and is designed to avoid any
perception that a municipal employee will enjoy undue influence
or favoritism in the acquisition or maintenance of a municipal
contract. EC-COI-85-66. If you believe that the statute is
excessive or unfair as applied to you, your ouly recourse will be
to seek a remedy with the General Court. We would note, however,
that the General Court has thus far not extended any exemptions
under s.20 allowing municipal police officers to hold elective
city office.[2]

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[1] An employee's financial interest in his or her own employment
contract, standing alone, is not prohibited under s.20. see,
Buss,
The Massachusetts Conflict of Interest An Analysis, 45
B.U.L Rev. 299,372 377; EC-COI-87-19. The prohibition comes into
play when, independent of the employment contract, an individual
holds municipal employment under G.L.c. 268A.

[2] We see no conflict between G.L. c. 268A and the
implementation of municipal collective bargaining laws. In our
view, G.L. c. 268A was intended to apply to all contracts,
whether written or oral, express or implied. We find nothing in
G.L. c. 150E from which we can conclude that the General Court
intended to exclude collective bargaining agreements from
contracts subject to s.20.

End Of Decision