August 9, 1993

FACTS:

 

You represent a municipal agency (Agency A) in the Town. Mr.
X [1] is a full-time employee at Agency A. His normally scheduled
hours at Agency A are 7:30 a.m. to 3:30 p.m., Monday through
Friday. He is also on call one weekend per month. Mr. X also has
a part-time post with the Town, assigned to a second municipal
agency (Agency B). His work hours at Agency B are normally
scheduled after 4 p.m. on weekdays and during the day on
weekends, for an average of 20 hours per week. The position at
Agency B is designated as a "special municipal employee" post.
When Mr. X is on call for Agency A, he is required to respond,
even if he is working at Agency B.
 


QUESTIONS:


1. Can Mr. X be designated as a "special municipal employee"
in his position with Agency A?

2. Can Mr. X hold both municipal positions simultaneously?
 


ANSWERS:


1. No, as he works full-time in that position.

2. No, unless he reduces the number of hours he works at
Agency B to no more than 500 hours per year.
 


DISCUSSION:

1. Special Municipal Employee Status


The term "employee" at each level of government (state,
county and municipal) is defined in G.L. c. 268A very
expansively. One is considered an employee of a particular level
of government if he performs services for the government or holds
any office, position, employment or membership in any of its
agencies or instrumentalities [2]. An individual is a government
employee whether he is paid or unpaid, or whether he works full-
time or part-time. Individuals working on an intermittent basis,
or as consultants, are also defined as government employees.
However, certain provisions of the conflict of interest law
distinguish between regular employees and "special" employees.
The distinction is important since those provisions of the
conflict law apply in a less restrictive fashion for "special"
employees.

A municipal employee [3] can be designated as a "special
municipal employee" only if one of the following conditions
exists:

1. He is unpaid, or

2. By its classification in the municipal agency involved or by
the terms of the contract or conditions of employment, the
employee is permitted "personal or private employment" during
"normal working hours", or

3. He did not earn compensation for more than 800 hours in the
position during the preceding 365 days [4]. G.L. c. 268A, s.
1(n).

You have urged that we read s. 1(n) to permit a full-time
employee who works on other than a 9 a.m. to 5 p.m. schedule to
attain special employee status [5]. To achieve this result, you
would have us interpret the phrase "normal working hours" to mean
employment from 9 a.m. to 5 p.m. In this way, you argue, Mr. X
would be entitled to special employee status because the
conditions of his employment with Agency A (specifically, his
7:30 a.m. to 3:30 p.m. schedule)

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would "permit . . . personal or private employment during normal
working hours." We decline to accept your proposed construction,
however, for the following reasons.

While the phrase "normal working hours" is neither defined
in c. 268A nor discussed in its legislative history, we note that
the phrase was adopted by the legislature nearly thirty years
ago, when flex-time was not as prevalent as it is today. Then, it
was more often the case that in most agencies (other than
institutions, and the like, which are run on a 24 hour per day
basis) the work day ran from 9 a.m. to 5 p.m., and employees were
given little or no flexibility to shift their hours from that
norm. With that historical reality in mind, we are not persuaded
that the main object to be accomplished in s. 1(n) was to create
a device that would allow a full-time employee to work odd hours
so as to facilitate multiple municipal office holding. Indeed,
the simplest reason for concluding that s. 1(n) is inapplicable
to Mr. X's situation is that the employment outside of the
"normal working hours" of one's public service contemplated by s.
1(n) is "personal and private employment." That language,
according to its usual and accepted usage, cannot reasonably be
interpreted to embrace Mr. X's public employment at Agency B.
Thus, interpreting that language alone, we conclude that Mr. X
may not enjoy special employee status in his position at Agency
A.

An additional basis for this conclusion, however, may be
found when one examines the words "normal working hours" in light
of the legislative history and purpose of s. 1(n). Our
examination of the legislative history and early commentary on
the statute leads us to conclude that special employee status was
primarily intended for those individuals whose public activities
were not a substantial portion of their work day. In this way,
the Commonwealth could enjoy the part-time services of these
individuals, without penalizing them by unnecessarily restricting
their private activity.

In 1962, a special commission completed an extensive study
of conflict of interest issues. G.L. c. 268A was the product of
that study. In the Final Report of the Special Commission, House
Doc. No. 3650, at p. 12, it was noted that the proposed conflict
of interest bill "defined special employees . . . as those who
serve without compensation or those whose condition of employment
permits some personal and private activities on the part of the .
. . employee" (emphasis added). The Special Committee pointed out
that, without the classification, it would be "impossible for the
Commonwealth to have the service of specialists or other capable
people for specific assignments in departments or agencies." Id.
Thus, the critical consideration is whether the employee is
permitted outside employment in the course of his municipal
employment, and not whether such outside employment is carried on
"in the nighttime, or at some other odd hours, [as] 'normal
working hours' should be determined . . . not by an arbitrary
notion of which hours of the day are 'normal' for work." Buss,
"The Massachusetts Conflict-of-Interest Statute: An Analysis" 45
Boston L. Rev. 299, 314, n. 94.

Here, it is plain that Mr. X's full-time position with
Agency A does not permit personal or private employment during
his workday there. Indeed, so extensive is Mr. X's connection
with the Agency A that his on-call status with that agency
requires that he respond there, even if at that very moment he is
assigned to be at work for Agency B. That the completion of Mr.
X's full workday with the Agency A is before 5:00 p.m., or at
such a time that there remain hours in the day in which he can
work, is not dispositive. Rather, the interpretation of s. 1(n)
that is most consistent with its legislative history is the one
which recognizes that "employment 'during normal working hours'
means, generally, during all or a predominant part of such
hours." Buss at 314. On the other hand, "when a substantial
portion of the normal working day, or working week, are taken up
with the employee's public duties, the relevant test is, under
the third alternative, based on total compensated hours [6]." Id.
Quite obviously, as a full-time employee, Mr. X is unable to meet
that test.

Finally, we note that an examination of prior versions of s.
1(n) also indicates that special municipal employee status was
not contemplated to embrace full-time employment under most
circumstances. Specifically, prior to April 27, 1965, s. 1(n)
defined a special municipal employee as "a municipal employee
whose position has been expressly classified . . . as that of a
special employee under the terms and provisions of this chapter."
Responding to inquiries from municipal officials concerning the
factors to be considered in assigning such classification, the
attorney general issued a memorandum outlining the relevant
standards [7]. That memorandum included as one of the six factors
to be considered the "amount of compensation [received] in
relation to that of a full-time employee." Braucher, Conflict of
Interest in Massachusetts, in Perspectives of Law, Essays for
Austin Wakeman Scott 12 (1964). Clearly, therefore, special
employee status was thought to be something other than full-time
employment.

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In short, viewing the plain language of s. 1(n) in its
entirety and with attention to its main objective, we conclude
that the stated prerequisites of s. 1(n) (i.e. an employee who
volunteers his time, or who is paid but works a for a mere
fraction of a year -- 800 hours a year or less -- or who is
allowed private employment during his normal working hours) all
embrace a character of employment that is different from ordinary
full-time employment [8]. Therefore, we believe that, absent
special circumstances, full-time employees are regular employees,
and cannot be designated as "special. [9].

Since Mr. X cannot be designated as a "special municipal
employee" in his Agency A position, he will be subject to the
restrictions on multiple office holding contained in s. 20(b) of
G.L. c. 268A.


2. Multiple office holding at the local level


Section 20 prohibits a municipal employee from having a
financial interest, directly or indirectly, in a contract made by
any municipal agency of the same city or town, in which the city
or town is an interested party, unless an exemption applies.

As noted above, Mr. X does not qualify for designation as a
"special" as employee of Agency A. Thus, he must meet all of the
following conditions under s. 20(b) to also work at Agency B, as
s. 20(b) is the only exemption available to "regular" municipal
employees:

1. The second job must be with a completely independent agency,
department or board. The individual may not participate in or
have official responsibility for any of the activities of the
second agency, and the first agency must not regulate activities
of the second agency;

2. the position is publicly advertised;

3. the individual files a statement disclosing the second job
with the city or town clerk;

4. the second job will be performed outside of the normal
working hours of the first position;

5. the services performed in the second job are not part of the
employee's duties in the first job;

6. the employee is not compensated in the second position for
more than 500 hours per year [10];

7. the head of the second agency, department or board,
certifies that no employee of that agency is available to do this
work as part of their regular duties; and

8. the city or town council, board of aldermen, or board of
selectmen give their approval of this exemption from s. 20.

Mr. X does not currently fulfill all of these s. 20(b)
requirements. Since he works approximately 20 hours per week at
Agency B, unless he works less than a full year, he will exceed
the yearly time limit. Mr. X may not receive compensation in the
Agency B post for more than 500 hours per year in order to
qualify for a s. 20(b) exemption. Thus, as Mr. X does not qualify
for a s. 20(b) exemption, he may not hold the full-time Agency A
and part-time Agency B posts simultaneously.

However, if Mr. X were to be paid for 500 hours or less per
year in his Agency B post, he may be eligible for a s. 20(b)
exemption if he can fulfill the remainder of the s. 20(b)
conditions. Specifically, Mr. X will need the certification
described above by the head of Agency A, and approval of this
exemption by the Board of Selectmen.


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


[1] Mr. X has authorized this opinion request.

[2] Agency One is a "municipal agency" for purposes of the
conflict of interest law. A "municipal agency," is defined as any
department or office of a city or town government and any
council, division, board, bureau, commission, institution,
tribunal or other instrumentality thereof or thereunder. G.L. c.
268A, s. 1(f).

[3] "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 of a charter commission established under Article LXXXIX
of the Amendments to the Constitution. G.L. c. 268A, s. 1(g).

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[4] Approximately 20 weeks at 40 hours/week or 15 hours/week
for a full year of employment.

[5] For convenience, we will refer to this type of work
schedule as "flex-time."

[6] The "third alternative" refers to the portion of s. 1(n)
which allows for "special" designation where the employee does
not earn compensation for more than 800 hours in the position
during the preceding 365 days.

[7] Edward W. Brooke, Attorney General, Memorandum re
Classification Under Chapter 779 of the Acts of 1962 (March 8,
1963).

[8] See, e.g., Buss, 45 Boston Univ. L. Rev. 299, 314 (1965)
("It is clear that the special classification is intended to be
reserved for those who in fact have limited contact with their
level of government.")

[9] Those who are permitted to have private employment
during normal working hours may include consultants whose
contracts do not include scheduled work hours, attorneys allowed
to engage in the private practice of law during normal working
hours, or full/part-time teachers at educational institutions who
are expressly allowed time to do private research or study. These
examples are not meant to be all inclusive.

[10] Approximately 9.5 hours per week.

 

End Of Decision