February 23, 1993

FACTS:

You are a full-time employee of the City of Chicopee Highway
Department (Department).



QUESTION:



Can you run for and, if elected, hold office as an Alderman-
at-large while serving as a full-time employee of the Department?


ANSWER:

Although G.L. c. 268A will not prohibit you from running for
the office of Alderman-at-large, if you are elected to that
position, you may not be compensated in your current Department
position.

DISCUSSION:

Section 20 prohibits a municipal employee from having a
financial interest in a contract with a municipal agency, unless
an exemption is available. Section 20 applies whenever an
individual holds more than one position (at least one of which is
appointed and compensated) in the same municipality. Therefore,
if you are elected as Alderman, you will have a financial
interest in your employment contract with the Department. See EC-
COI-80-89
(selectman has a financial interest in employment
contract as a teacher) [1].

Applying the restrictions of s. 20, if you are elected to
the position of Alderman-at-large, you will have a prohibited
financial interest in your Department employment contract. In
other words, unless an exemption applies, s. 20 will prohibit you
from receiving compensation in your Department position. By
definition, the position of alderman may not be designated as a
special municipal employee position. G.L. c. 268A, s. 1(n) [2].
The only exemption therefore available to an alderman who seeks
to receive compensation in an appointed municipal position is
found in s. 20(b). That exemption requires that the municipal
employee 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 agency;

(2) the employee cannot participate [3] in or have official
responsibility [4] for any of the activities of the
contracting agency;

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

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

-508-

As Alderman-at-large, it appears that you would have either
regulatory control over, or you would participate in, activities
of the Highway Department. See EC-COI-91-9 (city councilors
regulate and/or participate in activities of municipal agency);
83-158 (discussing meaning of "regulate"). Moreover, an alderman
cannot receive compensation in a full-time appointed municipal
position because the s. 20(b) exemption restricts additional
compensated municipal employment to 500 hours during the course
of a year. See EC-COI-89-28 (full-time police officer cannot also
hold city council position without violating s. 20); 85-66. No
other exemption from s. 20 is available to you. We note that s.
20 contains exemptions that allow a member of a board of
selectmen or town council to hold an appointed municipal position
provided that the selectman or town councillor complies with
certain restrictions. No similar exemption to the s. 20
prohibition, however, is available to members of a board of
alderman or city council.

Because you will not qualify for the s. 20(b) exemption and
because no other exemptions are available to you, if you are
elected to the position of Alderman-at-large, s. 20 will prohibit
your receipt of compensation in your Department position. The s.
20 prohibition will not apply until you assume the office of
Alderman-at-large. Furthermore, the conflict of interest law will
not prohibit you from running for the office of Alderman-at-
large. However, the Highway Department or the City of Chicopee
may impose additional restrictions on running for political
office or otherwise engaging in political activitiess. 23(e).


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


[*] Pursuant to G.L. c. 268B, s. 3(g), the requesting person
has consented to the publication of this opinion with identifying
information.

[1] However, an elected official's compensation is not
received pursuant to an employment contract. EC-COI-82-26. Any
compensation you may receive as Alderman will not be pursuant to
an employment contract with the City. As a Department employee,
you would not therefore have a prohibited financial interest in a
municipal contract by virtue of your compensation as an Alderman.

[2] Similarly, the definition of "special municipal
employee" excludes members of a city council as well as members
of a board of selectmen in a town with a population in excess of
10,000 persons. G.L. c. 268A, s. 1(n). However, members of a
board of selectmen in a town with 10,000 or fewer inhabitants
are, by definition, special municipal employees.

[3] "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).

[4] "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).

End Of Decision