You are a full-time employee of a state agency (ABC). You also serve simultaneously for compensation as a selectman. You ask whether you may continue to serve as a selectman without violating the conflict of interest law, General Laws Chapter 268A. The question you ask is one of major concern to the Commission and to many other state officials who are also local officials. We have, therefore, set forth in detail the basis for our interpretation of the law. We have concluded that you may continue to serve as a selectman subject to the restrictions of § 4, noted below, which prohibit you from receiving compensation from or acting as agent for your town in connection with any particular matter in which the state is a party or has a direct and substantial interest.
In making its analysis and arriving at its conclusion, the Commission has relied upon the precedents and opinions of the Attorney General issued prior to November 1, 1978, the effective date of the Commission's jurisdiction in this area.
The ABC is a body politic and corporate placed with, but not subject to the supervision and regulation of, a State Department. ABC is constituted a public instrumentality and the exercise of its powers are deemed to be the performance of an essential governmental function. (citation omitted). Section 1(p) defines state agency as "...any independent state authority, district, commission, instrumentality or agency..." Therefore, ABC is a state agency. See Commonwealth v. Toomey, 214 NE2d 727, 350 Mass 345 (1966). See also Attorney General Conflict Opinion 556. You are a "state employee" as that term is defined in § 1(q).
Sections 4(a) and 4(c) prohibit a state employee from receiving compensation from or acting as agent for anyone other than the Commonwealth or a state agency in relation to any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest. A state employee who holds a municipal position is not automatically in violation of § 4. Whether a conflict of interest exists under this section does not depend on your duties as a state employee but rather on the nature of your responsibilities and your actions as a selectman and whether they relate to particular matters of direct and substantial interest to the Commonwealth.
The Attorney General has previously held that certain local matters are of direct and substantial interest to the Commonwealth. In 1975, the Attorney General found that the activities of a local licensing commission were of direct and substantial interest to the state because of the extensive regulation of the liquor industry pursuant to a statutory scheme which gave broad authority to local licensing commissions while requiring their interrelationship with the Alcoholic Beverages Control Commission (a state agency). The Attorney General ruled, therefore, that a state employee could not serve for compensation as a member of a local licensing commission.
Attorney General Conflict Opinion 675. In 1976, the Attorney General ruled that the Supreme Judicial Court had clearly stated in the Sudbury case[1]that local assessing practices were of direct and substantial interest to the Department of Revenue (a state agency) and, therefore, a state employee could not serve for compensation as an assessor. That opinion further held that a state employee/assessor could not appear, with or without compensation, before a state agency on behalf of his town since he would be acting as the agent for his town in violation of §4(c). Attorney General Conflict Opinion 741. Furthermore, the Attorney General has ruled that litigation, contracts and grants in which the Commonwealth is a party are of direct and substantial interest to the Commonwealth. See Attorney General Conflict Opinions 842 and 678. The Ethics Commission has concurred with these opinions. See EC-COI-79-3, 6, 7, 11, 29 and 34. In addition, the commission has found that the state has a direct and substantial interest in local sewerage matters and town fiscal matters and has advised state employees that they could not receive compensation for serving as a member of a local Board of Sewer Commissioners or as Town Treasurer, nor could they serve as the agent for the Town. See EC-COI-79-48 and 63.
Since you are a state employee, you would violate § 4(a) if you receive compensation from your town for serving as a selectman in relation to any particular matters, such as those mentioned above, which are of direct and substantial interest to the state. Since it is neither practical nor feasible to allocate your compensation among your various activities as a selectman, you cannot avoid the prohibitions of this section unless you refuse all compensation from the town for serving as a selectman.
If you refused compensation, only the narrower prohibitions of § 4(c) will apply to you. Section 4(c) prohibits a state employee from acting as the agent for anyone other than the Commonwealth or a state agency in relation to any particular matter in which the state or a state agency is a party or has a direct and substantial interest. This section does not prohibit you from participating in these matters as a selectman, but it does require you to refrain from acting as the agent for your community vis-a-vis the state. To the extent that your duties as a selectman, as described in your town's by-laws or as a matter of practice, require you to act as an agent in any such particular matters as and when they arise, you would be prohibited by § 4(c) from engaging in such representational activities. We suggest that you may want to take clear and definitive steps to indicate that you are abstaining from acting on behalf of the town in a representational capacity in order to avoid any suggestion that you may have violated this section of the law.
End Of Decision
