January 26, 1993

FACTS:

You are an elected Selectman in a Town. The Town's
population, according to the 1990 federal census, is under 1,000.

For many years, you have also been a part-time police
officer in the Town, a position appointed by the Board of
Selectmen and classified as that of a "special municipal
employee." Since becoming a Selectman, you have declined all
compensation as Selectman and have abstained from participation
as a Selectman in matters affecting the Police Department.

You now wish to work part-time plowing snow for the Town's
Highway Department whenever your services are needed [1].

 


QUESTION:

Does G.L. c. 268A allow you, while you remain a Selectman,
to receive compensation for one or more appointed municipal
positions?
 


ANSWER:

If the remaining Selectmen are willing to take the steps
required for exemptions under s. 20(c) and (d) as explained in
part 1 below, you may receive compensation for more than one
appointed position while remaining a Selectman. If the
remaining Selectmen do not take these steps, the s. 20 selectman's
exemption will allow you to be paid for only one municipal
position of your choice, and will establish other limitations as
explained in part 2 below.
 


DISCUSSION:

Section 20 of G.L. c. 268A prohibits a municipal employee
from having a financial interest in a contract with a municipal
agency, unless an exemption applies. Since s. 20 applies to
municipal employment contracts, it generally prohibits a
municipal employee from holding another municipal position that
is both appointed and compensated, unless an exemption applies.
See Quinn v. State Ethics Commission, 401 Mass. 210 (1987) (so
interpreting s. 7, the equivalent section for state employees);
Commission Advisory No. 7 (Multiple Office Holding at the Local
Level) (1990).
 

In each of your three positions -- Selectman, police
officer, Highway Department employee -- you are a "municipal
employee" for the purpose of the conflict law. G.L. c. 268A, s.
1(g). Because you wish to hold and be paid in all three
positions, s. 20 requires us to examine your financial interest
in each of your municipal employment contracts from the viewpoint
of each of the other municipal positions you wish to hold. In
each such position, s. 20 will prohibit you from receiving
compensation in any other position (except your elected
Selectman's position [2]), unless you qualify for exemptions from
s. 20. You may do so in either of the following two alternative
ways.


1. Section 20(c) and (d) exemptions.


In your Selectman's position, you have a financial interest
in both your police officer and Highway Department employment
contracts. As a Selectman in a town with a population of 10,000
or fewer persons, you are automatically a special municipal
employee. G.L. c. 268A, s. 1(n). Therefore, s. 20(d) exempts
these interests if both (1) you file with the Town Clerk a
written public disclosure of your financial interest in these two
appointed positions, and (2) the remaining Selectmen [3] approve
this exemption for you [4].

In addition, in each of your police officer and Highway
Department positions, you have a financial interest in your
employment contract in the other appointed position [5]. In your
police officer position, you are a special municipal employee.
Therefore, if (1) the remaining Selectmen [6] also classify all
Highway Department on-call snow-plowing positions as "special
municipal employee" positions, and (2) you have filed the written
public disclosure with the Town Clerk mentioned in the preceding
paragraph, s. 20(c) exempts these interests, because in neither
of these two positions do you "participate in or have official
responsibility for any of the activities of the [other
position's] contracting agency."

Note that, in order to be paid in all three positions, you
must comply with all the conditions mentioned in the two
preceding paragraphs [7].


2. Selectman's exemption.


As discussed above, the s. 20(d) exemption requires approval
by the remaining Selectmen. Because it is possible that the
Selectmen will not approve this exemption, we must consider
whether the "selectman's exemption" in the fourth paragraph of s.
20, which does not require the Selectmen's approval, is also
available to you. Without either s. 20(d) or the selectman's
exemption, you may not be paid for any appointive Town position
while remaining a Selectman.

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The fourth paragraph of s. 20 provides in relevant part:

This section shall not prohibit an employee or an official
of a town from holding the position of selectman in such
town nor in any way prohibit such an employee from
performing the duties of or receiving the compensation
provided for such office; provided, however, that such
selectman shall not, except as hereinafter provided, receive
compensation for more than one office or position held in a
town, but shall have the right to choose which compensation
he shall receive; provided, further, that no such selectman
may vote or act on any matter which is within the purview of
the agency by which he is employed or over which he has
official responsibility; and, provided further, that no such
selectman shall be eligible for appointment to any such
additional position while he is still a member of the board
of selectmen or for six months thereafter.


As discussed at length in EC-COI-82-106, the plain language
and legislative history of this exemption indicate that it was
intended to mitigate what the Legislature viewed as a harsh
application of s. 20, as prohibiting many selectmen who
previously held appointed town positions from continuing to be
paid in those positions. That 1982 opinion in effect construed
the then-new exemption not to repeal other exemptions, under ss.
20(c) and (d), already available to selectmen in smaller towns
who were special municipal employees. The point of our 1982
opinion was that the conditions attached to the selectmen's
exemption did not apply to selectmen who qualified for some other
exemption from s. 20. This analysis is consistent with later
Commission opinions applying the conditions attached to other
statutory exemptions from provisions of G.L. c. 268A. See, e.g.,
EC-COI-92-25
(municipal exemption from s. 4); 92-8 (municipal and
legislator's exemptions from s. 4); 92-6 (construction consultant
exemption from "state employee" definition in s. 1[q]).

In EC-COI-87-36, we were asked whether the selectman's
exemption's six-month waiting period applied to "special"
selectmen. Following our earlier reasoning in EC-COI-82-106, we
decided that it did not, because such "special" selectmen were
not generally in need of this exemption. We said there in dictum
that the selectmen's exemption "applies only to regular
selectmen," but this statement was based on our stated assumption
that "`special' selectmen . . . already could hold two jobs and
be paid for both," citing s. 20(c) and (d). But this assumption
depends on the remaining selectmen's willingness to take the
steps necessary for these exemptions; when these other exemptions
are not obtained for any reason, the plain language and purpose
of the selectman's exemption suggest that it should be available
to "special" as well as regular selectmen.

Therefore, without disturbing in any way our main holdings
in EC-COI-82-106 and EC-COI-87-36, we now clarify that the s. 20
selectman's exemption is available, at their election, to
"special" selectmen who cannot (or choose not to) qualify for the
s. 20(c) or (d) exemptions. Of course, it follows that all the
conditions attached to the selectman's exemption also apply in
this situation.

Thus, if you wish to remain a Selectman while being paid for
an appointive Town position you held before becoming a Selectman,
you must either:

1. Qualify for a s. 20(d) exemption (including the remaining
Selectmen's approval) as discussed in part 1 above. If you wish
to be paid for more than one appointed position, you must also
take the steps necessary to receive a s. 20(c) exemption
(including the remaining Selectmen's classification of every such
appointed position as that of a "special municipal employee"),
also discussed in part 1; or:

2. Comply with the conditions of the selectman's exemption,
which requires that you: (a) decline compensation for all but one
of your Town positions (for example, you may continue to be paid
as a police officer, but not as either a Selectman or a Highway
Department employee); (b) not vote or act as a Selectman on any
matter within the purview [8] of any Town agency that employs you
(with or without compensation); and (c) not accept appointment to
any additional Town position (for example, the Highway Department
position) while you remain a Selectman and for six months
thereafter [9].


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[1] This opinion addresses only your future conduct. See
G.L. c. 268B, s. 3(g); EC-COI-92-17 n.1.

[2] Since EC-COI-82-26, the Commission has consistently held
that an elected official's compensation is not received pursuant
to any "contract."

[3] Section 19 of G.L. c. 268A, which prohibits a municipal
employee from knowingly participating in a particular matter in
which he (among others) has a financial interest,

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requires that you not participate as a Selectman in the decision
whether to approve this exemption for yourself. Note that
participating includes discussion, voting, and informal lobbying
of your colleagues (of course, you may apply for the exemption
itself). See id. s. 1(p); EC-COI-92-30. Whenever this matter
comes before the Selectmen, therefore, your best course of action
is to leave the room. Graham v. McGrail, 370 Mass. 133, 138
(1976).

[4] The s. 20(c) exemption, discussed in text below, is not
available to you here because, as a Selectman, you inevitably
have "official responsibility" for at least some activities of
both the Police and Highway Departments. See EC-COI-91-9; 84-125
n.6.

[5] As explained in note 2 above, in these positions you do
not have a financial interest in any "contract" as a Selectman.

[6] As explained in note 3 above, you may not participate as
a Selectman in this decision.

[7] Qualifying for the indicated s. 20(c) and (d) exemptions
is the simplest method for you to accomplish this result. More
limited exemptions may be available under s. 20(b) and (f) and
under the last paragraph of s. 20, but each of these also
requires action by the remaining Selectmen, and some require
additional procedures.

[8] For detailed discussion of the meaning of an agency's
"purview" (there, in the context of the s. 4 municipal
exemption), see EC-COI-92-25; 92-22 and other opinions they cite.

[9] Thus, the six-month waiting period applies to a
"special" selectman only if he requires the benefit of the
selectmen's exemption to receive compensation for an appointed
Town position he held before becoming a Selectman.
 

End Of Decision