April 18, 1991

FACTS:

Page 349

You are a City Solicitor for a City (City). You have asked
whether a City Councillor can simultaneously hold a full-time
appointed position in the same city. Both the elected position of
City Councillor and the appointed agency position are paid
positions. The agency is separate from the City Council but the
City Council does approve the agency's budget. The agency's
appointing authority is a Commission appointed by the City's Mayor.
The agency is within the City Department of XYZ.


QUESTION:


May a City Councillor be appointed to a full-time municipal
position while continuing to serve on the City Council?


ANSWER:

No.


DISCUSSION:


Section 20 of G.L. c. 268A, the conflict of interest law,
prohibits a municipal employee from having 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
reason to know, unless an exemption applies.

A City Councillor would, therefore, be prohibited from being
appointed to an additional full-time municipal compensated
position, unless an exemption permitted the appointment. See, e.g.,
EC-COI-90-2; {Commission Advisory No. 7} (Multiple Office Holding
at the Local Level). Section 20 provides a number of exemptions.
However, none of the exemptions would permit the proposed
appointment. For example, s.20(b) would permit a full-time
municipal employee to be appointed to a second compensated
municipal position, provided that the employee can meet certain
specified criteria. Among the criteria are:

(1) the employee must not be employed in an agency which
regulates the activities of the contracting (that is, second)
agency;

(2) the employee cannot participate[1] in, or have official
responsibility[2] for, any of the activities of the
contracting agency;

(3) the contract must be made after public notice or
competitive bidding; and

(4) the employee cannot be compensated for more than 500 hours
in the second position during a calendar year.[3]

In the present case, City Councillors appear to have either
regulatory control over, or participate in, activities of the
agency (directly or indirectly). Cf. EC-COI-83-77 (agency did not
make any decisions affecting other agency); see also, EC-COI-83-
158
("regulate" means to govern or direct according to rule or
bring under the control of constituted authority, to limit and
prohibit to arrange in proper order, and to control that which
already exists). We need not, however, decide that issue because,
in any event, the proposed agency position would be full-time. The
City Councillor would therefore not meet the 500 hour requirement
of s.20(b). See, EC-

Page 350

COI-89-28 ( full-time police officer cannot also hold City Council
position without violating s.20); EC-COI-85-66. No other exemption
in s.20 would appear to be available to the City Councillor.[4]

Accordingly, the City Councillor may not be appointed to the
proposed full-time municipal position.

The Commission expresses no opinion as to whether any such
appointments are permitted or prohibited by any other general law
or City Charter provision.

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

[1] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s.1(j).

[2] "Official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action. G.L. c. 268A, s.1(i).

[3] There are, in addition, several other criteria in s.20(b)
not listed here.

[4] We note, for example, that a City Councillor is not
eligible for "special municipal employee" status. See,
EC-COI-89-28
; M.G.L. c. 268A, s.1(n) (criteria for becoming a
"special.")

End Of Decision