| Date: | 04/03/1979 |
|---|---|
| Organization: | State Ethics Commission |
Because sewerage operation and regulation constitute a "particular matter" in which the state has a "direct and substantial interest", a state employee may not serve concurrently on a town board of Sewer Commissioners.
You are a full-time state employee with the Department. You ask whether the state conflict of interest law, General Laws Chapter 268A, prohibits your serving simultaneously for compensation as an elected member of the Board of Sewer Commissioners.
Sections 4(a) and (c) prohibit a state employee from receiving compensation from or acting as agent or attorney for anyone other than the Commonwealth or a state agency in relation to any particular matter in which the Commonwealth 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. A state employee who also holds a municipal or city position is not automatically in violation of § 4. Each case turns on whether the local office or position involves matters in which the Commonwealth has a direct and substantial interest, not on your position in state service.
The Town Board of Sewer Commissioners is responsible for the operation of the town sewer lines and for ensuring that the current sewer pipes are properly maintained and monitored. More than three million dollars has been invested in the current sewerage system. See Annual Report of the Officers of the Town, page 34 (1978). The Commission is also responsible for the planning of new construction. The 1978 Annual Report states that the Commission plans to add four more miles of lateral sewers and has sought state and federal funding for the design of over 18 miles of sewerage in the future. The Commission oversees the construction grant application process and hires the consulting engineers needed to prepare grant applications and construct the sewerage.
Sewerage is not merely a local matter. It is subject to extensive state regulation by the Division of Water Pollution Control of the Department of Environmental Quality Engineering (DEQE). General Laws Chapter 21, § 26 et seq. Further, construction grants, providing up to 75% of project funding, under the Federal Environmental Protection Act are available to municipalities. However, such grants must meet state eligibility requirements set by DEQE. See DEQE standards and regulations and state-mandated requirements, 40 CFR 35.905-14, 920-1, and 925-15.
Determinations regarding the current operations of the sewerage system and planning for expansion of the present system are "particular matters" within the meaning of §1(k). Municipal applications for federal grants are also particular matters, as are the contracts for consulting services entered into in connection with projects financed and regulated at the state and federal level. See Attorney General Conflict Opinion Nos. 799, 838. They all involve "applications", "submissions", or "determinations".
The state has a direct and substantial interest in these particular matters.
The Attorney General has previously found that particular matters involving liquor licensing, equalized property valuation, housing authority accounts and solid waste disposal are ones in which the state has such an interest primarily because of the extensive state regulation of, and the state's concern about, the activities of these local authorities. See Attorney General Conflict Opinion Nos. 673, 741 and 850; Attorney General Opinion No. 78/79-17. The Ethics Commission has concurred in these findings. See, for example, Ethics Commission Conflict Opinion Nos. EC-COI-79-3 and EC-COI-79-6. Therefore, the Ethics Commission finds that the state has such a similar interest in the Town Board of Sewer Commissioners.
As a state employee, you are prohibited from serving as a Board member since you receive compensation from and act as an agent for the board in violation of § 4(a) and (c) by participating in the "applications", "submissions", and "determinations" of the Board. You cannot avoid this conflict under Section 4 simply by refusing any compensation as a Sewer Commission member. While such a refusal would cure a violation of § 4(a), your service as a member of the Town Board would continue to violate 4(c) since Board members clearly function as agents of the town in regard to all local sewerage matters.
End Of Decision
