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If an elected member of a town or city board has a conflict of interest with respect to a matter before the board that involves his own financial interest or that of a partner, an immediate family member, a business organization with which the board member has certain affiliations, or a person or organization with whom the board member is negotiating or has any arrangement concerning future employment, that member will be disqualified from participating as a board member in that matter.1/ In some cases, especially when more than one member is disqualified, a board cannot act because it does not have a quorum or some other number of members required to take a valid affirmative vote. (If the number for a quorum is not set by law, a quorum is generally a majority of the board members.) In these circumstances, the board may be able to use the rule of necessity to permit the participation of the disqualified member(s) in order to allow the board to act. Individual elected officials, such as the mayor of a municipality or a constitutional officer, also may be able to use the rule of necessity in order to carry out legally-required actions that would otherwise be barred by the conflict of interest law.
The rule of necessity is not a law written and passed by the Legislature. Rather, the rule of necessity was developed by judges who applied it in their court decisions. The rule of necessity may only be used as a last resort. The rule should be used only upon prior written advice from town or city counsel because improper use of the rule could result in a violation of the conflict of interest law.
The rule of necessity works as follows:
1. When used by an elected board member, 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: A five-member elected board has a meeting and all members are present. Three of the five members have conflicts in a matter before the board in which the board is legally required to act. Three members are the quorum necessary for a decision. The two members without conflicts do not constitute a quorum. The board cannot act. The rule of necessity will permit all members to participate in that matter.
If one or more members of an elected board have ”appearances” of conflicts of interest that can be dispelled by making a written disclosure, the rule of necessity may not be invoked. Section 23(b)(3) of the conflict of interest law prohibits a public official from acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that the public official is likely to act or fail to act as a result of kinship, rank or position. It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his or her appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.
2. 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 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.)
3. While the absence of one or more board members is generally not sufficient cause to invoke the rule of necessity, when a board is legally required to take action by a certain time and is unable to do so because of the lack of a quorum, the rule of necessity may be invoked.
4. The rule of necessity should be invoked by one or more of the otherwise disqualified members, upon advice from town or city counsel or the State Ethics Commission.
5. If it is proper for the rule of necessity to be used, it should be clearly indicated in the minutes of the meeting that as a result of disqualification of members due to conflicts of interests, the board lacked a sufficient number of members necessary to take a valid vote and, as a last resort, that all those disqualified may now participate under the rule of necessity. Each disqualified member who wishes to participate under the rule of necessity first must disclose publicly the facts that created the conflict.
It should be noted that invoking the rule of necessity does not require all previously disqualified members to participate; it merely permits their participation.
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, or a constitutional officer. 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 in which he is disqualified by a conflict of interest from acting, and there is no one else legally qualified to act in 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 actions otherwise barred 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 he delegates, he cannot 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.
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 (617) 371-9500 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 1987REVISED: January 1991REVISED: February 1993REVISED: December 2005 [as an Advisory]REVISED: October 17, 2013
1/ Public employees who cannot participate in matters because of a conflict of interest should contact the Ethics Commission for advice regarding the rule of necessity.