| Date: | 03/17/2022 |
|---|---|
| Organization: | State Ethics Commission |
A municipal zoning board of appeals member would violate Section 17(a) of the conflict of interest law by accepting compensation from private clients for architectural services in connection with an application that would require ZBA approval.
A member of a city Zoning Board of Appeals (ZBA) is an architect and owner of a private architectural firm. He would like to receive compensation for services he or his firm performs for private clients in connection with applications before the ZBA, including projects for which his firm is not the architect of record. The ZBA member would not act as an agent for any private party with a matter before the ZBA and would recuse himself from participating as a ZBA member in the projects associated with his firm. Members of the city’s ZBA have been designated as special municipal employees.
May the ZBA member receive compensation from private clients for architectural services he or his firm performs in connection with an application before the ZBA?
No, the ZBA member’s receipt of such private compensation would violate G.L. c. 268A, § 17(a).
The ZBA was established pursuant to the state’s Zoning Act, G.L. c. 40A. The Zoning Act defines “zoning” as “ordinances and by-laws, adopted by cities and towns to regulate the use of land, buildings and structures to the full extent of the independent constitutional powers of cities and towns to protect the health, safety and general welfare of their present and future inhabitants.” G.L. c. 40A, § 1A. The ZBA’s powers include hearing and deciding applications for special permits and approvals of site plans in certain city districts.
Under Section 17(a) of the conflict of interest law, G.L. c. 268A, a municipal employee may not directly or indirectly receive compensation from a private party in relation to any “particular matter” in which the municipality is a “party or has a direct and substantial interest.” G.L. c. 268A, § 17(a). The particular matters at issue here are the applications before and decisions of the ZBA (not the private developments subject to the city’s zoning ordinance). G.L. c. 268A, § 1(k).
The ZBA member, as a special municipal employee, is subject to Section 17(a) only in relation to a particular matter in which he has at any time participated as a municipal employee, or which is or within one year has been a subject of his official responsibility, or which is pending in the ZBA if he served more than sixty days during any period of 365 consecutive days. G.L. c. 268A, § 17. Even if he recuses himself from the discussion and vote on matters involving his own firm, the ZBA member still has official responsibility for all matters subject to the ZBA’s review. As a result, he is subject to Section 17(a) with regard to matters coming before the ZBA, even if he does not participate as a ZBA member in the particular matters. In the Matter of Lawrence Beals, 2020 SEC ___; In the Matter of Jeffrey Collingwood, 2018 SEC 2639; EC-COI-99-6; EC-COI-92-36.
In Commonwealth v. Canon, 373 Mass. 494 (1977), the Supreme Judicial Court concluded that the granting of a special permit for an apartment building is a particular matter for purposes of Section 17(a) of the conflict of interest law. The Court noted, “[i]t is hard to hypothesize a ‘particular matter’ involving a municipal action in which it can be said with assurance that the municipal interest is indirect or unsubstantial.” Canon, 373 Mass. at 498. See Robert Braucher, Conflict of Interest in Massachusetts, in Perspectives of Law: Essays for Austin Wakeman Scott 1, 16 (1964); EC-COI 84-117; EC-COI 88-21. The court further noted that for purposes of Section 17, the city is a party when “the payor is applying for a municipal decision and the city is cast in the role of objective and impartial arbiter.” Canon, 373 Mass at 498. See EC-COI-84-117.
Following Canon, the Commission has concluded in a number of enforcement cases and formal advisory opinions that an application for a special permit or other types of permits, is a particular matter in which the municipality is a party and has a direct and substantial interest for purposes of Section 17. See, e.g., In the Matter of John Beukama, 1995 SEC 732 (finding zoning board of appeals member who was an architect violated Section 17(a) by receiving compensation from a private developer in connection with a special permit site plan review application submitted to the zoning board of appeals); In the Matter of Richard L. Reynolds, 1989 SEC 423 (finding select board member violated Section 17(c) by acting as agent for a trust in connection with a private subdivision application); EC-COI 88-9 (concluding that the town has a direct and substantial interest in an application for, and issuance of, a building permit); EC-COI 87-31 (concluding town is a party to and has direct and substantial interest in a septic permit).
Based on Canon and Commission precedent, a municipality is a party to and has a direct and substantial interest in any submission or application reviewed or decided by the ZBA, such as a special permit application or site plan approval request. Accordingly, the ZBA member is prohibited under Section 17(a) from receiving compensation, directly or indirectly, in relation to an application for a special permit, site plan review, or other particular matter before the ZBA. See In the Matter of William J. Devlin, 1998 SEC 915 (finding historical commission member who was architect violated Section 17(a) by receiving compensation for preparation of plans submitted in support of application for certificate of appropriateness to be approved by the commission).
The ZBA member has argued that the Commission should rely on a regulation issued by the federal Office of Government Ethics (OGE) interpreting 18 U.S.C. § 207, which places restrictions on a former federal employee’s representation of a private party in connection with particular matters in which the United States "is a party or has a direct and substantial interest." 18 U.S.C. § 207; 5 CFR § 2641.201. In particular, in determining whether a federal agency is a party to or has a direct and substantial interest in a matter involving a former federal employee, the OGE directs agencies to “consider all relevant factors, including whether:
(A) The [agency] has a financial interest in the matter;
(B) The matter is likely to have an effect on the policies, programs, or operations of the [agency];
(C) The [agency] is involved in any proceeding associated with the matter, e.g., as by having provided witnesses or documentary evidence; and
(D) The [agency] has more than an academic interest in the outcome of the matter.”
5 CFR §2641.201(j)(2)(ii).
The Commission has not adopted these federal factors to determine whether a municipality is a party to or has a direct and substantial interest in a particular matter involving a current municipal employee. Even if it did, the ZBA member would not prevail.
Applying the third factor (agency involvement), the ZBA is directly involved in the particular matters with which he would be professionally associated because they would be reviewed and acted upon by its members. Moreover, applying the fourth factor (agency interest), the ZBA, which was created to enforce the city’s extensive zoning ordinance, has more than an academic interest in the outcome of its matters. An important purpose of the city’s zoning ordinance is to protect the health, safety and general welfare of the city’s present and future inhabitants. G.L. c. 40A, § 1A. Therefore, the considerations set forth in the third and fourth factors are clearly met and support a finding that the city is a party to and has a direct and substantial interest in matters submitted to and decided by the ZBA.
The Commission declines to reconsider its well-established precedent under Section 17(a) in this case, including any application of the federal factors set forth in 5 CFR §2641.201(j)(2)(ii). Indeed, allowing a ZBA member to receive compensation in relation to matters decided by the very board upon which he sits would undermine the public’s confidence in the integrity of his public service. See William G. Buss, Jr., The Massachusetts Conflict-of-Interest Statute: An Analysis, 45 B.U. L. Rev. 299, 301 (1965). In sum, Section 17(a) prohibits the ZBA member from receiving compensation from private clients for architectural services he or his firm performs in connection with an application before the ZBA.
