Advisory  05-03: Elected Officials Voting on Budgets and Signing Payroll Warrants that Include Salaries for Family Members

Date:	09/21/2017
Referenced Sources:	2015 Ethics Commission Rulings

Introduction

The conflict of interest law is intended to ensure that public employees act in the best interests of the citizens they represent, and do not pursue their own self-interests or other private interests. The law prohibits a public employee from participating, by voting, discussing, delegating or otherwise acting, in any matter that affects:

• his or her own financial interests or those of a business partner;
   
• the financial interests of his or her immediate family members (i.e., the employee's spouse; and the parents, siblings and children of either the employee or the employee's spouse);
   
• the financial interests of a private or "after-hours" employer, or anyone with whom the employee is negotiating or has an arrangement for prospective employment; or
   
• any organization, either charitable or for-profit, in which the employee is serving as an officer, director, partner or trustee.

The term "public employee" includes both elected and appointed state, county and municipal employees, whether paid or unpaid, full-time or part-time. An unpaid volunteer board member as well as, in some instances, a consultant who is a contractor are considered public employees for purposes of the conflict of interest law.

I. Participation in a Particular Matter

The conflict of interest law defines participation as participating in agency action or in a particular matter personally and substantially through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. Thus, a public employee participates not only when he makes a final decision or votes on a matter, but also when he discusses the merits of a matter with a colleague or makes a "non-binding" recommendation. A particular matter is any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination or finding. ^1/

II. Determining Prohibited Financial Interests

The restrictions of the conflict of interest law apply regardless of the size of the financial interest. They apply in any instance when the private financial interests are directly and immediately affected, or when it is reasonably foreseeable that the financial interests would be affected. Also, the conflict of interest law prohibits any type of official action in such matters, regardless of whether the proposed action would positively or negatively affect the private financial interests.

Example: A city councilor whose mother is a clerk for the water department may not vote in favor or against a motion to impose a two week unpaid furlough for all water department employees.

III. Participating in Votes and Discussions on Budgets or Signing Warrants that Include Salaries of Family Members

In situations where an elected public employee's family members are employed by the same city, town or agency, the employee may not participate in any discussion or vote on any budget item that would affect the family member's salary or sign a payroll warrant that includes the family member's pay. ^2/

Example: A school committee member whose daughter is a school teacher in town may not discuss or vote on a school department payroll warrant, which includes the regular weekly salary of all school department employees, because his daughter has a financial interest in that warrant.

This prohibition includes voting on a budget line item that will merely maintain the salary of a family member at its present level, approving "automatic" salary step increases in a budget, or signing a payroll warrant. The prohibition applies even in cases where a number of other employees (or all employees) are given similar increases. Discussing or making nonbinding recommendations on the budget line items affecting immediate family members' salaries is also prohibited.

However, a public employee may vote on other line items that do not affect the financial interest of a family member and the whole budget, including salaries, once the following procedure has been followed: the board must identify the budget line item that includes the family member's salary and vote on it separately. The public employee whose family member's salary is affected by this line item must abstain from the discussion and vote. After all such conflicts are dealt with through this line item procedure, the board may then vote on the budget as a whole package, with all members participating in the final vote to approve the "bottom line."

Example: A city councilor whose father works as a custodian for the school department must abstain from voting on a recommendation about the line item of the budget that includes her father's salary. She should leave the room during any deliberation and vote on this matter. She may discuss any other line item as long as it has no impact, directly or indirectly, on her father's salary. She may also participate in the final vote to approve the budget as a whole at the end of this process.

IV. Abstaining When a Conflict of Interest Occurs

As discussed above, not only must a public employee abstain from voting, he may not participate in any official discussion of the matter. Ordinarily, the best course of action is simply to leave the room during the deliberation and vote of the board.

Example: A selectman whose son is a police officer and who discusses increasing health insurance benefits for police officers but abstains from the final vote will have participated through his discussing the health insurance benefit in a particular matter affecting his son's financial interest.

An elected public employee is not required to disclose the reason for his abstention.

V. Rule of Necessity

If more than one member of a board or committee is disqualified because of actual conflicts of interest, the board may not be able to act because it does not have a quorum. (If the number for a quorum is not set by law, a quorum is generally a majority of the board members.) In these instances, as a matter of last resort, the board can use what is called the rule of necessity to permit the participation of the disqualified members in order to allow the board to act. Prior to invoking the rule of necessity, public officials should review the Ethics Commission's Primer on Self-Dealing, Financial Interests and the Rule of Necessity or contact the city solicitor, town counsel or the Ethics Commission.

VII. Conclusion

While certain private relationships may not trigger the restrictions discussed above, they may require disclosure and compliance with other sections of the conflict of interest law. Again, for further advice, contact your town counsel, city solicitor or the Legal Division of the State Ethics Commission at 617-371-9500.

Disclaimer

This Advisory is intended to summarize the State Ethics Commission’s advice concerning compliance with the conflict of interest law and is informational in nature.  It is not a substitute for advice specific to a particular situation, nor does it mention every aspect of the law that may apply in a particular situation.  Public employees can obtain free, confidential advice about the conflict of interest law from the Commission’s Legal Division by submitting an online request on our website, by calling the Commission at [phone] and asking to speak to the Attorney of the Day, or by submitting a written request for advice to the Commission at One Ashburton Place, Room 619, Boston, MA 02108, Attn: Legal Division.

ISSUED: March 1987
REVISED: September 1987
REVISED: October 1991
REVISED: August 1992
REVISED: June 2, 2005 [as an Advisory]

^1/Note, however, that general legislation is not a particular matter. Thus, a public official may act on matters of general legislation, and certain home-rule petitions. For example, a legislator, a town manager or a state agency head may draft, promote or oppose general legislation, or legislation related to a municipal government's organization, powers, duties, finances or property. Matters involving other types of "special legislation," regulations or administrative policies are not eligible for this exemption. For a determination as to whether a bill is "general legislation" or "special legislation," contact the city solicitor, town counsel, agency counsel or the Legal Division of the State Ethics Commission.

^2/An exemption is available for an appointed municipal employee, which will allow him to act on a budget affecting an immediate family member's financial interest. He must receive advance, written permission to participate from the person or board that appointed him to his job (the appointing official). To receive this permission, the employee must first advise his appointing official in writing of the conflict. If the appointing official decides to allow the employee to participate, the determination must be made in writing, in advance of any action, that the financial interest of the employee's family member "is not so substantial as to be deemed likely to affect the integrity of the services which the municipality may expect from the employee." Both the disclosure and the appointing authority's determination must be filed with the town clerk to allow for public review. See Advisory 86-02: Nepotism.