Opinion  EC-COI-80-46

Date:	06/13/1980
Organization:	State Ethics Commission
Location:	Boston, MA

A legislative aide may also serve as an elected town selectman subject to the restrictions set forth in §§ 4 and 6 of the conflict of interest law.

Introduction

All identifying information has been deleted from this opinion as required by Chapter 268B, section 3(g).

You state that you are a full-time legislative aide to a member of the General Court. You have recently been elected a selectman. You ask whether, as a selectman, you may represent the Town in petitioning the Legislature for special legislation for the Town or may vote on resolutions concerning bills before the General Court and whether, as a legislative aide, you may perform research on bills involving financial disclosure for municipal officials, the open meeting law, or the transfer of state-owned land in the town, without violating the state conflict of interest law, General Laws Chapter 268A.

In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not conducted an independent investigation into those facts. Moreover, the Commission renders conflict opinions only when presented with specific questions relating to potential conflict situations which exist or are imminent. It does not rule on abstract, hypothetical questions. See EC-COI-79-56. Accordingly, we must limit our opinion to a general statement of the law and its applicability to the examples you have given us. If, in the future, further questions arise as to the applicability of Chapter 268A, you may request an additional opinion at that time.

Discussion

We first deal with the restrictions imposed on your conduct as a selectman. In your capacity as a legislative aide, you are a "state employee" within the meaning of §4(a) and §4(c) of Chapter 268A, which prohibits state employees from receiving compensation from, or acting as agent for, anyone other than the Commonwealth or a state agency in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest. "Particular matter", as defined in section l(k), includes any judicial or other proceeding, application, submission, decision or determination, but specifically excludes enactment of general legislation by the General Court. The Town would be someone "other than the Commonwealth or a state agency". The exclusion with respect to general legislation means that, as a selectman, you may vote on resolutions concerning general legislation without being subject to the prohibitions of §4. However, voting on resolutions concerning, and petitioning the General Court for, special legislation are not permitted under §4 because these activities relate to particular matters in which the Commonwealth has a direct and substantial interest.

Under a recent amendment to §4, (the "Municipal Exemption”), a state employee may hold a municipal job in addition to his state job, provided he does not "vote or act on any matter which is within the purview of the agency by which he is employed or over which [he has] official responsibility". See Chapter 10 of the Acts of 1980. The Municipal Exemption will not lift the §4 prohibitions on your contemplated activities relating to special legislation because those activities are matters within the purview of the General Court, the agency by which you are employed. You must, therefore, as a selectman, disqualify yourself from voting or acting on these matters.

The restrictions imposed on your conduct as a legislative aide are addressed in §6 of Chapter 268A, which prohibits you from participating as a state employee in any particular matter in which you or a business organization which employs you has a financial interest. The Town is a business organization (see Attorney General Conflict Opinion No. 613). However, in view of the definition of "particular matter" as noted above, the §6 prohibition would not apply to your research regarding general legislation (local officials' financial disclosure and the open meeting laws) but would apply to your research on special legislation (transfer of state­-owned land in the town). Thus, you may not perform research on special legislation which affects the town's financial interest. The transfer of state-owned land in the town falls squarely in this category.

Section 6 further requests that a state employee whose duties would otherwise require him to participate in a prohibited matter must disclose to the official responsible for his appointment and the Ethics Commission the nature and circumstances of the matter and the financial interest involved, whereupon the appointing official must l) assign the matter to another employee, 2) assume responsibility for it himself, or 3) make a written determination (to be filed with the Ethics Commission) that the financial interest involved will not "affect the integrity of the services which the Commonwealth may expect from the employee". Only if such a determination is made may the employee participate in the matter. Since research on legislation is a part of your duties as a legislative aide, you must file the disclosure required by §6 whenever you are assigned a matter involving special legislation affecting your town.

 

End of Opinion