September 10, 1992

FACTS:


You are an elected, uncompensated member of the ABC Regional
High School Committee (Committee). The ABC Regional School District
(District) comprises the Towns of A, B and C. You represent the
Town of A on the Committee. You are also the President of a
construction company (Company). The Company, a Massachusetts-based
corporation, is wholly owned by a holding company which in turn is
owned by you and your brother (you own 50% of the holding company).
The Company currently bids on many projects of various state
agencies and most of the cities and towns in your county. The
Company is interested in submitting a bid proposal for the removal
of a fuel tank at the regional high school. The District's business
manager will open and review the proposals and award the job to the
lowest bidder. The Committee will ratify the contract award. You
will not participate as a Committee member in this matter.


QUESTION:


Given your position on the Committee, can the Company enter
into a contract with the District?

Page 439


ANSWER:


No, unless the position of Committee member is designated as
a special municipal employee position by the boards of selectmen of
each of the member towns and you avail yourself of the exemption
provided in G.L. c. 268A, s. 20(d).


DISCUSSION:


As we have decided on this date in EC-COI-92-26, regional
school committees will no longer be considered independent
municipal entities for purposes of G.L. c. 268A, but rather
instrumentalities of each member municipality. As a member of the
Committee, you therefore are a municipal employee of each of the
member Towns.[1]

Section 20 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, unless an exemption
applies.

If the Company were to enter into a contract with the
District, by virtue of your 50% ownership of the holding company,
you would have a financial interest in a contract with a municipal
agency (the same municipal agency in which you serve). See EC-COI-
89-22
. Section 20 prohibits such a financial interest unless an
exemption applies.

Under s. 20(b), a municipal employee is not subject to the
prohibitions of s. 20 provided, among other things, that the
municipal employee does not participate in or have official
responsibilities for any of the activities of the contracting
agency. In your proposed situation, this exemption would not apply
because the Company seeks to enter into a contract with the same
municipal agency for which you have official responsibility.

Section 20, however, contains several additional exemptions
which apply only to special municipal employees. The position of
regional school committee member may be designated as that of a
special municipal employee, if so classified by vote of the board
of selectmen or city council of each of the member municipalities.

This result follows the analysis of Commission Advisory No. 5,
where we explained that local water and fire district employees
(where the district was contained within the boundaries of a single
municipality) could be designated by the single municipality's
board of selectmen or city council as special municipal employees,
even though the selectmen or city councillors might not be involved
in any way with the activities of the district.

We now extend this analysis (Commission Advisory No. 5) to
regional districts containing more than one municipality, with
regard to the designation of their employees as special municipal
employees. We recognize that this analysis is inconsistent with our
opinion in EC-COI-87-2 where we held (in apparent contradiction to
Commission Advisory No. 5) that members of a fire district
prudential committee (located within a single municipality) were
not eligible for classification as special municipal employees.[2]
However, we find that our current analysis is more appropriate in
light of the recent decision by the Appeals Court in McMann v.
State Ethics Commission
, 32 Mass. App. Ct. 421, 428, n. 5 (1992).
See EC-COI-92-26.

If members of the Committee are designated as special
municipal employees, you may avail yourself of the exemption
provided by s. 20(d). Under that exemption a special municipal
employee is exempt from the prohibition of s. 20, if he files with
the appropriate clerk a disclosure of his interest in the contract
and if the board of selectmen approves of the exemption. Therefore,
as a special municipal employee in your Committee position, you
would need to file with the District Clerk a written disclosure of
your interest in a contract with the District. Moreover, you would
need to receive the approval of the boards of selectmen of each of
the member towns.

To summarize, in order for the Company to enter into a
contract with the Committee, you must obtain from the selectmen of
each member town (a) the designation of Committee members as
special municipal employees; and (b) an exemption from the boards
of selectmen pursuant to s. 20(d).[3]

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

[1] "Municipal employee," a person performing services for or
holding an office, position, employment or membership in a
municipal agency, whether by election, appointment, contract of
hire or engagement, whether serving with or without compensation,
on a full, regular, part-time, intermittent, or consultant basis,
but excluding (1) elected members of a town meeting and (2) members

Page 440

of a charter commission established under Article IXXXIX of the
Amendments to the Constitution. G.L. c. 268A, s. 1(g).

[2] In 1990, the Legislature amended G.L. c. 48 to add s. 90,
which states that a fire district shall be considered a municipal
agency and that part-time fire-fighters and any one who performs
professional services for a fire district on a part-time,
intermittent or consultant basis shall be considered a special
municipal employee. St. 1990, c. 262. The Legislature
simultaneously amended G.L. c. 268A, s. 20(d) to allow part-time
employees of a fire district to avail themselves of the exemption
provided by that section if approved by the fire district's
prudential committee. This history further suggests moving away
from our analysis in EC-COI-87-2.

[3] We note that if the Company wishes to enter into a
contract with any of the towns encompassed by the District (or any
agency of any of the towns), you could qualify for the exemption
provided by s. 20(c) once you have obtained special municipal
employee status. Section 20(c) allows a special municipal employee
to have a financial interest in a contract with a municipal agency
without seeking the approval of the board of selectmen, so long as
the municipal employee does not participate in or have official
responsibility of any of the activities of the contracting agency.
In your case, it is unlikely that the Committee participates in or
has official responsibility for any of the activities of any of the
other agencies of the member municipalities. Therefore, if you
become a special municipal employee, you would need only file a
written disclosure of your financial interest with the District
Clerk and the Town Clerk upon contracting with agencies other than
the Committee.

Page 441

End Of Decision