Advisory  Advisory 05-05: The Rule of Necessity

Date:	05/16/2019
Referenced Sources:	2005 Ethics Commission Rulings

Introduction

An elected member of a city or town board is ordinarily disqualified by the conflict of interest law from participating in a matter before the board that involves his own financial interest or that of an immediate family member, a business partner, a business organization with which he has certain affiliations, or a person or organization with whom he is negotiating or has any arrangement concerning future employment.^1/  See G.L. c. 268A, § 19.  In some cases, especially when more than one member is disqualified due to a conflict of interest, an elected board cannot act because it does not have the minimum required number of members to take a vote, i.e. a quorum. 

Under very limited circumstances, an elected board may be able to use the rule of necessity to permit the participation of the otherwise disqualified member(s) in order to allow the board to act.  The rule of necessity may be used only when it is legally necessary for an elected board to act – for example, when a statute requires an action to be taken, or sets a deadline for action to be taken.  The rule of necessity may not be used when a board merely has discretion to act or wants to act.  The rule of necessity may be used only as a last resort.  Invoking the rule of necessity does not require all previously disqualified members to participate; it merely permits their participation.

In appropriate, similarly limited circumstances, individual elected officials, such as the mayor of a municipality, may be able to use the rule of necessity in order to carry out legally-required actions that otherwise would be prohibited by the conflict of interest law. 

The rule of necessity should be used only upon advice from town or city counsel or the State Ethics Commission because improper use of the rule may result in a violation of the conflict of interest law.  The advice should be obtained in writing, if feasible.

I. Requirements for Use of the Rule of Necessity by Elected Board Members

1.  The rule of necessity may be used only when an elected board is legally required to act on a matter and it lacks enough members to take valid official action solely due to board members being disqualified by conflicts of interest from participating in the matter.

• Example:  All five elected select board members are present at a meeting.  State law requires municipalities to decide immediately whether to adopt a new municipal health plan that will cover town employees and this decision can be made only by the select board.  Three select board members will be insured by the health plan.  A quorum of three members is necessary for a decision.  The two members without conflicts do not constitute a quorum.  The board cannot act.  The rule of necessity may be invoked to permit all members to participate in that matter.
   
• Example:  The five-member elected planning board has a meeting and all members are present.  A quorum is three members.  A statute sets a deadline by which the planning board must act on a special permit, and a vote by four of the five board members is necessary for an affirmative decision.  This action may be taken only by the planning board.  Two board members have conflicts.  Although a quorum is available, the required four votes needed for this particular matter cannot be obtained without the participation of one or both of the members with conflicts.  The rule of necessity may be invoked, and all five board members may participate.
   
• Example:  A subcommittee of the city council is considering whether to recommend adoption of an ordinance that would increase the fee for inspections of day care centers by $30.  The subcommittee includes five city councilors.  One city councilor owns a day care center.  Two city councilors have parents who own day care centers.  The subcommittee does not have a quorum that is disinterested.  There is no legal requirement to adjust the fee for these types of inspections.  The rule of necessity cannot be invoked to reach a quorum.

2.  If an elected board cannot act because one or more members have a conflict that can be addressed under the conflict of interest law by making a written disclosure or using an exemption, the rule of necessity may not be invoked.  

• Example:  One member of a three-member elected board has a daughter who is an applicant for a police officer position.  That board member cannot participate in the board’s hiring decision because his daughter is an immediate family member and she has a financial interest in the matter.  A second member has a niece who is an applicant for the same position.  Because a niece is not an “immediate family” member, the second member may choose either to: (1)  make a disclosure about his niece pursuant to section 23(b)(3) to dispel the appearance of a conflict of interest and then may participate in the matter, or (2) abstain from the matter.  The third member has no conflict.  The third member may act, and the second member may act if she files a disclosure.  If the second member chooses to abstain instead of filing a disclosure, the board may not invoke the rule of necessity.
   
• Example:  A three-member elected water commission is legally required to vote annually to establish the water rates for all residential property owners in the town.  A quorum to act requires two commissioners.  An exemption under section 19(b)(3) allows a municipal employee to participate in a determination of general policy if his financial interest and the financial interest of his immediate family in the matter is shared with more than 10% of the population of the town.^2/  More than 10% of the town’s population, including all three commissioners, own residential property.  All three members who own residential property may use the section 19(b)(3) exemption to participate in setting the water rates.  There is no need to invoke the rule of necessity.

3.  Before invoking the rule of necessity, every effort must be made to find another board or other authority in the municipality with the legal power to act in place of the elected board that could not obtain a quorum due to conflicts of interest.  Municipal counsel should be consulted to identify another municipal board or authority to act.

4.  The rule of necessity may not be invoked for mere convenience.  The lack of a quorum because of illness or absence of a member does not permit the rule of necessity to be invoked.  However, when a board is legally required to take action by a certain time that is about to expire and is unable to do so because of the lack of a quorum due to illness or absence of a member, the rule of necessity may be invoked.

• Example:  A statute requires the select board to approve payroll warrants on a weekly basis.  One member of the three-member board is disqualified because an immediate family member works for the town.  Another member is absent.  The rule of necessity may be invoked so the select board can meet the weekly deadline.

5.  Once a quorum of board members has been obtained, the rule of necessity may not be used to break a tie vote.

• Example:  A five-member elected board has a meeting involving a matter in which the board is legally required to act, and all members are present.  One member has a conflict and is unable to participate.  The vote is a 2-2 tie.  The rule of necessity may not be used to break the tie.  In general, a tie vote defeats the issue being voted on and will maintain the status quo.

II. Procedure for Invoking the Rule of Necessity by an Elected Board

The rule of necessity may be invoked by the chairperson of the elected board, if the chairperson is not disqualified due to a conflict of interest (and is therefore disinterested), after receiving advice, preferably written, from town or city counsel or the State Ethics Commission.  If the chairperson is disqualified, then the rule of necessity may be invoked by a disinterested board member.  (If all board members are conflicted, then the chairperson should invoke the rule of necessity.)  When the rule of necessity is invoked, each board member who has a conflict must disclose the facts that create the conflict, and then may participate in the matter. 

If it is proper for the rule of necessity to be used, the minutes of the meeting should:

-- state that the board lacked a sufficient number of members necessary to take a valid vote as a result of disqualification of members due to conflicts of interest;

-- include the facts disclosed by each disqualified member which created his or her conflict;

-- identify the legal requirement necessitating board action at that meeting; and

-- record that, as a last resort, the rule of necessity was invoked so that those who were disqualified could participate. 

• Example:  Two members of a three-member elected board have conflicts of interest that prohibit them from participating in a matter involving property owned by a private school for which they serve as trustees.  No other board or agency can act on the matter.  After consulting with town counsel, the chairperson (if disinterested) or one of the disinterested board members should invoke the rule of necessity, state the legal requirement necessitating that the board act, and direct that such information be included in the minutes.  Both board members who had been prohibited from participating should disclose the fact that they serve as trustees and then may participate in the matter.

III. Use of the Rule of Necessity by Individual Elected Officials

While the rule of necessity is most commonly invoked by elected multi-member boards, it is also applicable to individual elected officials, such as the mayor of a municipality.  For an individual elected official to be able to use the rule of necessity, the same requirements explained above apply:  the official must be legally required to act on a matter and is disqualified by a conflict of interest from acting, and there is no one else legally qualified to act on that matter.  In that situation, the individual elected official may invoke the rule of necessity to the minimum extent necessary to allow him to take the required action otherwise prohibited by the conflict of interest law.

If the legal duty to act permits the official to delegate that duty, then the official may invoke the rule of necessity for the limited purpose of designating another person to carry out the required action.  If a delegation is made, the elected official then may not otherwise participate in the matter.  However, if the legal duty to act is non-delegable, then the individual elected official may invoke the rule of necessity to take all actions required legally of him.  Any such invocation of the rule should be documented by the elected official in a writing filed publicly with the municipal clerk, or, if the elected official holds a state or county office, with the State Ethics Commission.

• Example:  The General Laws confer upon a mayor the sole power to act as her city’s bargaining representative for purposes of negotiating a collective bargaining agreement with the city’s firefighters, but permit the mayor to select a “designated representative” to negotiate such an agreement in her place.  The mayor’s spouse is a firefighter who has a financial interest in his union’s collective bargaining agreement with the city.  Section 19 of the conflict of interest law would prohibit the mayor from participating in the firefighters’ collective bargaining agreement.  The mayor may invoke the rule of necessity to designate an alternate to serve as the city's collective bargaining representative with the firefighter's union.  Once she does so, the mayor may not otherwise participate in the matter.
   
• Example:  The General Laws require a mayor to take a variety of actions with respect to making changes to the health insurance coverage that the city offers to its employees, and do not contain any provision authorizing anyone to act in the place of the mayor or permitting the mayor to delegate those duties.  The mayor himself is a subscriber to his city’s health insurance, and he would be disqualified by section 19 of the conflict of interest law from participating in matters relating to the city’s coverage, because he has a financial interest in those matters.  The mayor may invoke the rule of necessity and take all actions required legally of him in his official capacity under the General Laws with respect to changes to the city’s health insurance coverage.

 

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For more information about the state conflict of interest and financial disclosure laws (G.L. c. 268A & c. 268B), including the subjects discussed in this Advisory, please contact:

State Ethics Commission
One Ashburton Place, Room 619
Boston, MA 02108
[phone]

ISSUED:     March 1987
REVISED:  January 1991
REVISED:  February 1993
REVISED:  December 2005 [as an Advisory]
REVISED:  October 17, 2013
REVISED:  May 16, 2019

1/ While this Advisory focuses on the use of the rule of necessity by elected municipal boards and officials, the rule also may be used by elected state and county boards and by individual elected state and county officials who are disqualified by G.L. c. 268A, § 6 or § 13 from participating in particular matters because of financial interests.

2/ Section 19(b)(3) applies to municipal employees.  See EC-COI-92-34.  A similar exemption is available to state employees pursuant to 930 CMR 6.25.