Pursuant to G.L. c. 41, § 41, the treasurer of a city or town may not pay any salary or compensation to any person in the service or employment of the city or town unless the payroll is "sworn to" by the department head, or the person responsible for the person's appointment, or in the case of absence or disability of the department head or such person, by a person designated by the department head and approved by the select board, mayor or city manager. G.L. c. 41, § 41.
Whether a municipal department head may certify their department’s payroll that includes their own salary and submit the payroll for payment?
A municipal department head who receives a salary established through a written employment agreement, collective bargaining agreement, or a wage and compensation plan that has been approved by Town Meeting, and is exempt from overtime pay, may submit for payment a sworn payroll that includes their own salary.
The payment of salaries and wages for employees and independent contractors of municipal departments is generally as follows: In a town, once the payroll is certified by the department head, the town accountant examines the payroll submitted by the department head, and, if found “correct and approved,” draws a warrant upon the treasury for the payment of the payroll. G.L. c. 41, § 56 The select board must approve the payment of the payrolls of all departments and the warrant. G.L. c. 41, §§ 52, 56. In a city, the city auditor or officer having similar duties approves the payment of the payrolls of all departments before they are paid by the treasurer. G.L. c. 41, § 52. The city or town treasurer must pay the payroll approved by the town accountant and select board or city auditor. Treasurer of Rowley v. Town of Rowley, 393 Mass. 1, 2 (1984); Kathleen Colleary, Municipal Finance and Tax, MCLE Massachusetts Municipal Law, § 6.4.3 (2024). The town accountant, city auditor, or select board “may disallow and refuse to approve for payment, in whole or in part, any claim (including payroll) as fraudulent, unlawful or excessive.” G.L. c. 41, §§ 52, 56.
Under § 19 of the conflict of interest law, a municipal employee may not participate in a particular matter in which they have to their knowledge a financial interest. The payment of a municipal department’s payroll is a particular matter in which the department head has a financial interest. EC-COI-99-4. It is not a violation of § 19 if the municipal employee “first advises the official responsible for appointment to his position of the nature and circumstances of the particular matter and makes full disclosure of such financial interest, and receives in advance a written determination made by that official that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the municipality may expect from the employee.” G.L. c. 268A, § 19(b)(1).
A municipal department head who receives a salary (not an hourly wage) established through a written employment agreement, collective bargaining agreement, or a wage and compensation plan that has been approved by Town Meeting, and is exempt from overtime pay, may submit for payment a sworn payroll that includes their own salary because the requirements of the exemption in § 19(b)(1) have, in effect, been met. The department head who certifies the department’s payroll is required by law to perform this duty. As a result, their appointing authority is on notice of the nature and circumstances of the particular matter of the payment of the department’s payroll and the department head’s duty to certify it. The appointing authority is advised in writing of the department head’s financial interest in the payment of payroll because the department head’s salary is established in a public record, either an employment contract, collective bargaining agreement, or a plan approved by Town Meeting. Finally, an appointing authority, by appointing the department head, approving the department head’s job description, and/or supervising the department head, which is often documented in writing, has implicitly determined that the department head’s interest in being paid their salary is not likely to affect the integrity of services which the city or town may expect from the department head in certifying the department’s payroll.
This implied exemption is limited. A department head may not certify their pay if hourly (rather than a set salary), authorize their own overtime pay, approve the reimbursement for their own expenses, or certify the payroll of an immediate family member without filing a § 19(b)(1) disclosure and receiving in advance a written determination of their appointing authority permitting them to do so despite their or their immediate family member’s financial interest. See In the Matter of Deirdre A. Ling, 1990 SEC 456 (“The requirement that the disclosure and authorization be in writing . . . forces both the [public] employee and the appointing authority to consider carefully the nature of the conflict of interest and the options available for dealing with that conflict”). Further, when certifying payroll, the department head remains subject to the prohibitions in §§ 23(b)(2)(ii) and 23(b)(4). See, e.g., In the Matter of Stephen Hyde, Sr., 2014 SEC 2543 (fire chief caused unwarranted payments of substantial value to be made by the town to his son).
A municipal department head who receives a salary established through a written employment agreement, collective bargaining agreement, or a wage and compensation plan that has been approved by Town Meeting may certify the department’s payroll without filing a § 19(b)(1) disclosure with their appointing authority to disclose their own financial interest.
