May 14, 1992

 

FACTS:

Page 409

You are the Administrator of a Town (Town).[1] You inform us
that the members of a Board (Board) are elected to that position.
The Board's Clerk (Clerk) is appointed by the Board to a full-time,
paid position.
 


QUESTION:


Does G.L. c. 268A allow a Board member to be appointed to a
paid position under the direction of the Board?
 


ANSWER:

Yes, provided that the Board of Selectmen classifies the
position of Board member as a "special municipal employee" position
pursuant to G.L. c. 268A, 1(n) and provided that the appointment is
approved at Town Meeting pursuant to 21A.
 


DISCUSSION:


Members of the Board are considered municipal employees for
purposes of G.L. c. 268A. Two sections of the conflict of interest
law are therefore relevant to your question.


Section 20


This section prohibits a municipal employee from having a
financial interest in a municipal contract. The term contract
includes any type of agreement or arrangement between two or more
parties under which each undertakes certain obligations in
consideration of the promises made by the other. Thus, the
Commission has previously held that the term "contract" includes
employment arrangements. See EC-COI-84-91; In re Doherty, 1982 SEC
115. See Quinn v. State Ethics Commission, 401 Mass. 210 (1987).

A Board member who is employed as the Clerk would have a
financial interest in a municipal contract within the meaning of
20. Accordingly, a Board member would be prohibited from holding
the position of Clerk unless one of the exemptions available in 20
applies.

If the position of Board member is designated by the selectmen
as a special municipal employee position, a Board member may avail
himself of the exemption found in 20(d). Upon his/her filing with
the Board of a written disclosure of the Board member's financial
interest in the Clerk's position as well as the approval of such an
exemption by the selectmen, the Board member's financial interest
in a municipal contract will be allowed.[2]


Section 21A


This section prohibits a municipal board from appointing any
of its members to any office or position under the supervision of
that board unless such appointment is first approved by Town
Meeting.[3] Therefore, even upon compliance with the requirements
of s.20, the Board may not appoint one of its members to the
Clerk's position unless the Town Meeting first approves the
appointment.[4]

Page 409

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[1] You are requesting this opinion on behalf of the Board of
Selectmen, who are interested in, among other things, the necessity
of designating certain Town positions as special municipal employee
positions.

[2] In the Clerk's position, the employee will not have a
financial interest in the Board position because the Board members
are elected and the Commission has previously determined that
election to a public office does not create a contract.
EC-COI-82-26.

[3] Rather than seeking Town Meeting approval, it may also be
possible to add the duties of the Clerk's position to the
responsibilities of one member of the Board. In other words, the
Board would be structured so that one member would be required to
carry out the Clerk's functions as of part his/her role. Any
additional compensation received by this particular Board member
would be for additional responsibilities as a Board member rather
than for holding a separate municipal position, thereby avoiding
any issues under s.20 and 21A. Because such a change in the
structure of the Board may need to be accomplished through adoption
of a bylaw, or may depend on other provisions of state law, we
suggest that you contact Town Counsel if you choose to restructure
the Board rather than follow the procedure set forth in this
opinion.

[4] Waiver of compensation in the Clerk's position would
eliminate all issues under 20, but would not obviate the need for
Town Meeting approval under 21A.

 

End Of Decision