Opinion  EC-COI-79-3

Date:	01/10/1979
Organization:	State Ethics Commission

A state employee is prohibited by §4 from simultaneously serving for compensation in a town where selectmen are involved in determinations involving liquor licensing. Refusing compensation as a selectman would avoid a conflict under §4(a), but there would still be a violation of §4(c), since that town's selectmen act as an agent of the town on "particular matters" of "direct and substantial interest" to the state.

Discussion

You are an employee of a state agency (agency). You have requested our opinion whether the state's conflict of interest law, G.L. c. 268A, prohibits your serving as well as a selectman. We conclude that the criminal provisions of the statute prohibit your serving simultaneously as selectman and as a state employee.

At the present time you also serve as a selectman, an elective position for which you receive compensation each year. The Town operates under the town manager form of government. (Citation omitted.)

The selectmen appoint the town manager, who in turn appoints the treasurer, collector, accountant, board of assessors and deputy assessor. The town manager's appointees report directly to the town manager. The town manager with his appointees are responsible for local assessments and for setting the tax rate. The selectmen act together as the liquor licensing authority for the Town. They also "have authority to prosecute, defend and compromise all
litigation to which the town is a party."(Citation omitted.)

Section 4 of c. 268A is dispositive of your inquiry.^[1] Section 4 prohibits 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 has a direct or substantial interest. See § 4(a) (compensation) and (c) (agent). In a previous opinion the Attorney General concluded that the activities and determinations of a local liquor licensing authority are "particular matter[s]"^[2] in which the Commonwealth has a direct and substantial interest, due primarily to the extensive state regulation of such authorities and of the sale of liquor generally. See Conf. Op. Atty. Gen. No. 675. We adhere to the Attorney General's opinion. Therefore, we conclude that your acting as a selectman violates G.L. c. 268A, § 4(a) and (c), insofar as you receive compensation from and represent the Town in decisions and determinations involving liquor licensing.^[3]

Moreover, as a selectman you are responsible, along with the other selectmen, for defending lawsuits in which the Town is a defendant.^[4]  The Town is currently a defendant in Commonwealth v. Town of Andover, et al., Supreme Judicial Court No. 78-90 (1978), a case brought by the Commonwealth to require certain cities and towns to institute 100 per cent property tax valuation.  This case is a "particular matter" in which the Commonwealth is a party. See G.L. c. 268A, § 1(k), quoted in n.2, supra. Accordingly, because as a selectman you have responsibility for all litigation, serving as a selectman while the Andover case is pending violates c. 268A, § 4(a) and (c).^[5]

Finally, you have told us that as a state employee your practice is not to participate in matters which directly of indirectly involve the town or any of its inhabitants. Rather, you refer these matters directly to your superior.

You ask whether your practice corrects any potential violation of the conflict of interest statute. We answer this question in the negative. Although your course of conduct might effectively cure a violation of G.L. c. 268A, § 6,^[6] it does not affect the operations of § 4. As indicated above, the applications of § 4 to you does not turn on your specific position within the agency but relates instead to the duties you perform as a selectman. Section 4 would equally apply to any state employee who was simultaneously serving as a selectman of the Town.  

End Of Decision  

^[1]In this opinion we address solely the application of the conflict statute to you as a "state employee." See G.L. c. 268A, § 1(q). We do not consider how the statute applies to you as a selectman. In that capacity you are a "municipal employee."  The State Ethics Commission is now the sole agency with responsibility for rendering conflict of interest opinions to state and county employees by virtues of the statute creating the Commission, St. 1978, c. 210. However, c. 210 left unchanged the provisions of G.L. c. 268A, § 22, which entitles every municipal employee to request and obtain conflict of interest opinions from his town counsel or city solicitor.  While the Commission may assume in the future jurisdiction over certain conflict of interest questions concerning municipal employees, it is not yet in a position to do so. Accordingly, any questions you might have concerning the application of G.L. c. 268A to your activities as a municipal employee should be addressed to the town counsel. See G.L. c. 268A, § 22.

^[2]"Particular matter" is defined in G.L. c. 268A, § 1(k), to include ". . .any judicial or other proceeding, application, submission, request for a ruling or other determination. . .claim, controversy. . .decision, determination, finding. ...

^[3]You could not avoid the conflict under § 4 simply by refusing any compensation as a selectman.  While such a refusal would cure a violation of § 4(a), nevertheless your serving as a selectman would continue to violate § 4(c), because to the extent you participate in liquor licensing matters you would be acting as the agent or representative of the Town on particular matters of direct and substantial interest to the state.

^[4]The town manager appoints town counsel. The by-laws suggest, however, that at least with respect to litigation matters, town counsel works directly with the selectmen who are ultimately responsible for prosecuting, defending and compromising all litigation.

^[5]See n.3, supra.

^[6]Section 6 prohibits a state employee from officially "participating" in any particular matter in which he or an organization by which he is employed has a financial interest.