May 10, 1995

 

FACTS:



You are a member of a municipal Housing Board of Commissioners
("Housing Board"), appointed by the Governor. Your appointment was
not subject to confirmation by the City Council. The Governor does
not publicize gubernatorial appointee vacancies on local housing
authorities in a newspaper or other periodical of general
circulation. As a Commissioner, you are paid an annual stipend
which does not exceed $1,800.

You are contemplating seeking election to the City Council.
If elected, you would receive an annual

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salary of approximately $7,500. You state that the City Council
does vote to confirm the four Housing Authority Commissioners other
than yourself.[1]

 


QUESTION:


Does G.L. c. 268A permit you to hold your compensated position
as a member of the Housing Authority Board of Commissioners if you
are elected to the City Council?



ANSWER:


No, unless you forego the $1,800 stipend for serving on the
Housing Board.

 


DISCUSSION:



As a member of the Housing Board, you are a special municipal
employee[2] for purposes of the conflict law. See G.L. c. 121B,
s.7. If you are elected as a City Councillor, you will be a
regular municipal employee in that position.

Section 20 of the conflict law prohibits a municipal employee
from having a direct or indirect financial interest in a contract
made by the same municipality. The term "contract" in s.20
includes any type or arrangement between two or more parties under
which one undertakes certain obligations in consideration of the
promises made by the other. Thus, we have previously concluded
that the term "contract" includes employment arrangements, EC-COI-
84-91; In Re Doherty (1982); Quinn v. State Ethics Commission, 401
Mass. 210 (1987), and that s.20 prohibits multiple office holding
in the same city or town, unless an exemption applies. See EC-COI-
90-2; Commission Advisory No. 7: Multiple Office Holding at the
Local Level.


Since our decision in EC-COI-82-46, we have recognized that
because an elected position is not contractual in nature, an
elected official's compensation is not received pursuant to a
"contract". Therefore, s.20 does not prohibit you from holding
your Housing Board position and also receiving compensation as a
City Councillor. However, we must examine whether there is an
exemption which permits a City Councillor to receive compensation
as an appointed Housing Board member.


1. Section 20(b) exemption


As noted above, if you are elected as a City Councillor, you
will be a regular municipal employee. You will have a prohibited
financial interest in your compensated position as a Housing Board
member, unless an exemption from s.20 applies. Section 20(b)
contains the only exemption generally available to regular
municipal employees. In order to qualify for that exemption, you
must be able to meet all of the following conditions:

1. The second job must be with a completely independent
agency, department or board. As a City Councillor you
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. you file 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
your duties in the first job;

6. you are not compensated in the second position for more
than 500 hours per year;[3]

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.

We note that you will not fulfill the second s.20(b)
requirement, namely, that your position as a Housing Board member
was "publicly advertised."[4]

Section 20(b) requires that the second contract be "made after
public notice or where applicable, through competitive bidding."
The term "public notice" is not defined in the conflict law.
However, we have previously interpreted this term to require
advertisement of the position "in a newspaper of general
circulation." EC-COI-87-24. The public notice requirement is not
satisfied where the selection process has been "based primarily on
word-of-mouth." EC-COI-83-95; 85-7 (Governor's word-of-mouth
request for candidates to sit on seven member board did not satisfy
"public notice" requirement in s.7(b), the state counterpart to
s.20(b)). Moreover, we have declined to waive the public notice
requirement "upon a theory that public advertising would be
impractical or not effective." EC-COI-87-24 ("It is not for the

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Commission to waive the public notice requirement or broaden its
scope by interpretation. Any such change in law or policy must
emanate from the General Court."). The vacancy on the Housing
Board which you filled was not publicly advertised. Thus, you will
not qualify for the s.20(b) exemption.

2. The Housing Authority Exemption


Section 20 also contains a so-called housing authority
exemption. Specifically, the seventh paragraph of s.20 provides in
relevant part:

This section shall not prohibit an employee of a housing
authority in a municipality from holding any elective
office, other than the office of mayor, in such
municipality nor in any way prohibit such employee from
performing the duties of or receiving the compensation
provided for such office; provided, however, that such
elected officer shall not, except as otherwise expressly
provided, receive compensation for more than one office
or position held in a municipality, but shall have the
right to choose which compensation he shall receive;
provided further that no such elected official may vote
or act on any matter which is within the purview of the
housing authority by which he is employed; and provided
further that no such elected official shall be eligible
for appointment to any such additional position while he
is still serving in such elective office or for six
months thereafter.

Here, we are asked to consider whether the seventh paragraph,
which makes reference to an "employee" of a housing authority, also
applies to a "member" of such authority. Based on the express
language used and the discernible legislative history of this
paragraph, we conclude that it does not.

In determining the scope of the housing authority exemption,
we look first to the language used. Massachusetts Community
College Council MTA/NEA v. Labor Relations Comm'n
, 402 Mass. 352,
354 (1988). By its express terms, the exemption applies to an
"employee" of a housing authority. We note that under Chapter
121B, a housing authority "shall be managed, controlled and
governed by five members." G.L. c. 121B, s.5. The office of member
is created "by a statute enacted by the Legislature in accordance
with the broad power entrusted to the General Court to name and
settle officers, Constitution, Part II, c. 1, s.1, art. 4, and the
Legislature can determine qualifications for members of a housing
authority, provide for their appointment or election, define their
duties, fix their tenure, and designate the causes for and method
to be followed in their removal." Collins v. Selectmen of
Brookline
, 325 Mass. 562, 91 N.E. 2d 747, 749 (1950). Under G.L.
c. 121B, s.6, a member may be removed from office "because of
inefficiency, neglect of duty or misconduct in office." A housing
authority may employ an executive director and "such other
officers, agents and employees as it deems necessary or proper,"
and may delegate to "one or more of its members, agents or
employees such powers and duties as it deems necessary and proper
for the carrying out of an action determined upon by it." G.L. c.
121B, s.7. Each member of a housing authority, "and any person who
performs professional services for such an authority on a part-
time, intermittent or consultant basis ... shall be considered a
special municipal employee" for purposes of the conflict law. Id.
Read together, these sections draw a clear distinction between
members of a housing authority on the one hand, and housing
authority employees on the other. That is, the terms are neither
synonymous nor are they readily interchangeable.

Moreover, our examination of the evolution of the housing
authority exemption further supports our conclusion that the
exemption applies to employees but does not apply to members of a
housing authority. The housing authority exemption was inserted by
St. 1987, c. 374, s.2, approved October 5, 1987. That statute was
enacted less than four months after our decision and order in In re
Paul T. Hickson
, 1987 SEC 296 (decided June 25, 1987). There we
found that Hickson, an elected city councillor in the City of
Westfield, had violated s.20 by also serving as a compensated
maintenance worker for the Westfield Housing Authority. We imposed
a fine for that violation in part because we found the facts of
Hickson to be nearly identical to those in In re Kenneth R. Strong,
1984 SEC 195.

What is now the housing authority exemption was originally
proposed in House No. 4294 as an amendment to Chapter 39 of the
General Laws. House No. 4294 contained a broad exemption which
provided that "any elected municipal employee may serve as a paid
employee of a local housing authority." The General Court rejected
that language, and in House No. 5896, amended s.20 by inserting
language taken verbatim from similar provisions in s.20 regarding
the application of the s.20 restriction to town councillors and
boards of selectmen. The exemption contained in House No. 5896
applied to "an employee of a housing authority." Based on our
review of its evolution, we conclude that the intent of the housing
authority exemption was twofold. First, the exemption was crafted
to address concerns raised by the Hickson and Strong decisions
which applied to housing

Page 626

authority employees. Second, the exemption was intended to
incorporate the restrictions applicable to members of boards of
selectmen and town councillors relative to holding additional
positions in a municipality. However, we discern no legislative
intent to extend the scope of the exemption to include housing
authority members.

Accordingly, we conclude that because you do not qualify for
the s.20(b) or the housing authority exemption, s.20 of the
conflict law will prohibit you from being a City Councillor and
also receiving compensation as a member of the Housing Board.
However, you may serve in both positions if, within 30 days of your
receipt of this opinion, you notify the Housing Authority that you
will forego the $1,800 stipend received for serving on the Housing
Board.


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


[1] In a city, four members of a housing authority shall be
appointed by the mayor subject to confirmation by the city council.
G.L. c. 121B, s.5.

[2] "Special municipal employee", a municipal employee who is
not a mayor, a member of the board of aldermen, a member of the
city council, or a selectman in a town with a population in excess
of ten thousand persons and whose position has been expressly
classified by the city council, or board of aldermen if there is no
city council, or board of selectmen, as that of a special employee
under the terms and provisions of this chapter; provided, however,
that a selectman in a town with a population of ten thousand or
fewer persons shall be a special municipal employee without being
expressly so classified. All employees who hold equivalent
offices, positions, employment or membership in the same municipal
agency shall have the same classification; provided, however, no
municipal employee shall be classified as a "special municipal
employee" unless he occupies a position for which no compensation
is provided or which, by its classification in the municipal agency
involved or by the terms of the contract or conditions of
employment, permits personal or private employment during normal
working hours, or unless he in fact does not earn compensation as
a municipal employee for an aggregate of more than eight hundred
hours during the preceding three hundred and sixty-five days. For
this purpose compensation by the day shall be considered as
equivalent to compensation for seven hours per day. A special
municipal employee shall be in such status on days for which he is
not compensated as well as on days on which he earns compensation.
All employees of any city or town wherein no such classification
has been made shall be deemed to be "municipal employees" and shall
be subject to all the provisions of this chapter with respect
thereto without exception. G.L. c. 268A, s.1(n).

[3] Approximately 9.5 hours per week.

[4] Because it is not necessary to our decision, we expressly
decline to address whether the City Council's confirmation of four
of the Housing Board's members constitutes the City Council's
"participat[ion] in or ... official responsibility for ... the
activities of the" Housing Board.

Page 627

 

End Of Decision