You currently serve as County Commissioner for ABC County (County) and simultaneously serve as the Chairman of the Board of Selectmen of the Town of DEF (Town).
You wish to know the extent to which the conflict of interest law, G.L. c. 268A, limits your participation as Chairman of the Board of Selectmen in the budgetary process for the County. You also wish to know whether the application of G.L. c. 268A would change if you resigned from your position of Chairman but remained a member of the Board of Selectmen.
The Commission advises you that G.L. c. 268A permits you to remain on the Board of Selectmen, subject to the restrictions set forth below.
In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not made any independent investigation of those facts. In your capacity as a County Commissioner, you are a county employee within the meaning of G.L. c. 268A, s.1(d). EC-COI-81-62. As a county employee, you may hold elective or appointive office in a municipality and receive compensation for your municipal duties as long as you do not vote or act on any matter which is within the purview of the county agency by which you are employed or over which you have official responsibility.[1] See, G.L. c. 268A, s.11, as amended by St. 1980, c. 10. As Chairman of the Board of Selectmen, you have been designated under G.L. c. 35, s.28B as the representative of the Town to the advisory board to the commissioners of the County. In that capacity, you necessarily review and make recommendations concerning County expenditures, long-range capital facilities development plans and capital facility budget requests for the County. Further, as an advisory board member, you possess the statutory authority to delete or reduce certain budget plans or requests by the County Commissioners. See, G.L. c. 35, s.28B par.2. In view of these budgetary responsibilities as an advisory board member, it is clear that you must vote or act on matters within the purview of the County and over which you have official responsibility as a County Commissioner. Accordingly, you are prohibited by G.L. c. 268A, s.11 from maintaining your dual status as an advisory board member while you serve as a County Commissioner.[2] Moreover, even if you were to resign your chairmanship on the Board of Selectmen and remain a member, you would continue to be prohibited from acting on matters within the purview of the County or over which you have official responsibility. For example, while it is not clear whether, as a member of the Board of Selectmen, you will retain any statutory authority regarding the Town's advocacy before the advisory board, you should refrain from participating in any discussions with the Board of Selectmen or new Chairman, upon your resignation, over budgetary matters pending before the advisory board, since the County has an obvious financial interest in the outcome of the advisory board's actions.
As a member of the Board of Selectmen, you are a municipal employee pursuant to s.1(g) and are, therefore, prohibited under s.17(a) and (c) from receiving compensation or acting as agent for the County in connection with any particular matter[3] in which the Town of DEF is a party or has a direct and substantial interest. Further, s.19 prohibits you from participating [4] as a member of the Board of Selectmen in any particular matter in which the County or any other business organization which employs you has a financial interest. EC-COI-81-119. Additionally, s.13 prohibits you from participating as a county employee in any particular matter in which the Town of DEF has a financial interest. While these aforementioned provisions do not prohibit outright your dual status, they do impose restrictions on the scope of your activities in both positions, particularly with respect to budgets. As a County Commissioner, you must, therefore, refrain from participating personally and substantially in any decisions or other particular matters which affect the financial interests of the Town in a direct and immediate way. However, you would be permitted to participate in those decisions where the financial interests of the Town are shared with other communities within the County such as the determination and application of an aggregate assessment formula. See, EC-COI-81-62. While you have not raised specific questions in this area, you should feel free to request further guidance from the Commission over the application of s.13 should such a fact situation arise. Finally, you should be aware that G.L. c. 268A, s.23(c) prohibits you from disclosing to the Board of Selectmen confidential information which you may have acquired while serving as a County Commissioner. EC-COI-81-78; 81-62.
End Of Decision
