You are the Executive Secretary of the Board of Selectmen of a Town.
You ask whether you may continue to serve on certain Advisory Boards, and participate fully in their activities, without violating General Laws Chapter 268A.
In rendering this opinion, the Commission has been guided by, and will continue to follow for the near future, the opinions and interpretations of the Attorney General issued prior to November 1, 1978, the effective date of the Commission's jurisdiction over Chapter 268A matters. You serve as the Chairman of the Board of Selectman's designee on the Advisory Board of a state agency (ABC) and in this capacity you are a "special state employee". Citation omitted. Chapter 268A, § 1(o) and § 1(q). You also serve as the Chairman's designee on a county Advisory Board and in this capacity, you are a special county employee". See citation omitted.
Chapter 268A, § 1(c) and § 1(m). §§ 4 and 11 of the conflict of interest law restrict your activities as Executive Secretary by prohibiting you from receiving compensation from or acting as the agent of the Town in relation to any particular matter which the state (or the county in the case of the County Board) is a party or has a direct and substantial interest and in which as a Board Member you have participated or which is within your official responsibility, or which is pending before the ABC or the County Board if you have served on the Board for more than 60 days in the past year. See Chapter 268A, § 4, § 7 and § 11, § 5, see also Chapter 268, § 1(i) ("official responsibility:), 1(j) ("participate"), and 1(k) ("particular matter"). Therefore, as a general rule, these sections prohibit you from being paid by or acting as an agent for the Town on ABC and county matters, but they do not prohibit you from continuing to serve on these Boards.
Sections 6 and 13 are designed to avoid self-dealing. They prohibit you from participating as a Board member in any particular matter in which you or a business organization which employs you has a financial interest. The town is a business organization. Attorney General Conflict Opinion No. 613. However, interests which the Town shares with a substantial segment of the public are not "financial interests" within the meaning of the law. Therefore, while you may not participate in any aspect of a decision which affects the Town's financial interest directly and immediately, such as decisions which affect budgetary appropriations to the Town, you may participate in general decisions, such as are made on a consolidated budget, so long as the item affecting your Town is not reconsidered during that deliberation. See Graham v. McGrail, 1976 Mass. Adv. Sh. 1001, 345 N.E. 2d 888 (1976). In addition, § 6 and 13 were amended by St. 1978, C. 210 to require that an employee whose duties would otherwise require him to participate in a prohibited mater must advise the official responsible for his appointment and the Ethics Commission of the nature and circumstance of the matter and his financial interest therein. Your duties on the ABC Board and the County Board would normally require you to participate in matters affecting the Town's financial interest citation omitted and therefore you must file the disclosures required by these sections with the Chairman of the Board of Selectmen (your appointing official) and the Ethics Commission. Although these sections provide for certain exemptions, the Chairman, as an elected official, could not obtain an exemption. see Buss, The Massachusetts Conflict of Interest Statute, 45 B.U. Law Rev. 299, 362 (1965). His status is attributable to you as his designee. Therefore, the Commission concludes that you also may not take advantage of the exemption provisions contained in these sections.
You advise us that you also serve on an Advisory Manpower Planning Board (APB) as the representative of the Town appointed by the City Manager of a city. The City is one of the recipients of a subgrant from the State Prime Sponsor under the Comprehensive Employment and Training Act of 1973 (CETA). The APB is an independent advisory council to the Chief Executive Official and the Subgrantee Director on programs, policies and plans. Since the membership and objectives of the APB are local in nature, the APB is a "municipal agency" under § 1(f), and you are a "municipal employee" under § 1(g). See also Conflict Opinions Attorney General 25, 34, 98. In addition, as the Executive Secretary to the Board of Selectmen of the Town, you are also a "municipal employee". By virtue of it's enabling legislation, the Ethics Commission is now alone responsible for rendering conflict of interest opinions to state and county employees. That legislation left unchanged § 22 of Chapter 268A which entitles every municipal employee to request and obtain conflict of interest opinions from the town counsel or city solicitor. While the Commission may in the future assume 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 General Laws Chapter 268A to your activities as a member of the APB and as Executive Secretary should be addressed to your Town Counsel.
End Of Decision
