You are currently a Police Officer in a Town (the Town) and are contemplating running for State Senator.
You wish to know whether the conflict of interest law, G.L. c. 268A, permits you to hold both positions and receive both salaries.
The Commission advises you that it does, subject to the conditions 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. If you were to be elected to the State Senate, you would, in your capacity as a member of the General Court, be a state employee within the meaning or G.L. c. 268A, s.1(q). See, EC-COI-81-81. Sections 4(a) and 4(c) prohibit state employees from receiving compensation or acting as an agent for someone other than the Commonwealth or a state agency in relation to any particular matter in which the Commonwealth or state agency is a party or has a direct and substantial interest. However, members of the General court are exempt from the prohibitions of these sections and may, therefore, accept compensation from or act as agent for someone other than the Commonwealth, subject to the following limitations. Under paragraph 5 of s. 4, "no member of the General Court shall personally appear for any compensation other than his legislative salary before any state agency, unless: (1) the particular matter before the state agency is ministerial in nature; or (2) the appearance is before a court of the Commonwealth; or (3) the appearance is in a quasi-judicial proceeding."[1] You should, therefore, make certain that any proceeding in which you appear in your capacity as a Police Officer falls within these limitations.
Section 6 prohibits you from participating [2] as a state employee in a particular matter in which you, your immediate family, or a business organization in which you are serving as an employee has a financial interest. A municipality has been defined as a business organization for the purposes of this section. See Attorney General Conflict Opinion No. 613. "Particular matter" is defined as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the General Court. (Emphasis supplied). Accordingly, you would be allowed to participate fully as a legislator in the consideration of and voting on general legislation, even if you or the municipality you serve as a police officer has a financial interest in its passage. If, however, your duties as a legislator require you to act in a way that would affect your financial interest in a manner greater than its effect on the general public, for example, in the case of general legislation on the salaries of police officers, s.6A requires that you file a written disclosure with the State Ethics Commission describing the action required and the nature of your financial interest. See, EC-COI-80-10; 81-81. The definition of "particular matter" does include the enactment of special legislation, so you would be prohibited from considering and voting on special legislation in which you or the municipality you serve as a Police officer has a financial interest. Such legislation would include bills that are limited in scope and do not affect all members of a class alike and those that are limited in dates of effectiveness and do not become part of the Commonwealth's permanent legislation. One example of legislation in which you would be prohibited from participating would be a Home Rule bill filed by the Town since the intent and effect of such legislation would be directed at one municipality and the Town has a financial interest in its massage. See, EC-COI-81-81. Another example would be a special act to reestablish binding arbitration for police officers, since you would have an obvious financial interest in its passage.
As a member of the police force in the Town you are also a municipal employee and subject to the provisions of c. 268A affecting such employees. Under s.17, you may not receive compensation from anyone other than the Town for which you work. In relation to any particular matter in which the Town has a direct and substantial interest. As a state employee, you would be receiving compensation from someone other than the Town. However, since general legislation is excluded from the definition of particular matter and you are already prohibited from participating in special legislation in which the Town has a financial interest under the prohibitions of s.4, this section would not place further limitations on you.
Section 19 prohibits you, as a municipal employee, from participating in a particular matter in which you or your business organization has a financial interest. The state is such an organization for the purposes of this section. See, EC-COI-92-3, 92-13. The definition of particular matter set forth earlier in this opinion specifically includes "charge," "accusation," and "arrest," so your activities as a Police Officer would be particular matters. The remaining question, then, is whether the state has a financial interest in these activities. While the commonwealth has an interest in criminal proceedings brought on its behalf, that interest must be financial in nature to invoke the prohibition of s.19. EC-COI-81-153. As a general rule, the state would have a financial interest in criminal proceedings involving crimes against the Commonwealth where the state is a financial victim, as, for example, in proceedings alleging fraud, extortion or embezzlement of state funds. You would, therefore, be prohibited by s.19 from participating in such cases as a municipal police officer unless you first advise the official responsible for appointment to your position of the nature and circumstances of the particular matter and make full disclosure of such financial interest, and receive in advance a written determination made by that official that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the municipality may expect from you. On the other hand you may participate as a police officer in criminal proceedings which do not involve the state as a financial victim. Should your activities as a Police Officer require you to appear as a witness in court, both secs.4 and 7 contain provisions specifying that they will not prevent a state or municipal employee from giving testimony under oath or making statements required to be made under penalty of perjury or contempt. Furthermore, as indicated earlier in this opinion, members of the General Court are not prohibited from appearing before a court of the Commonwealth. See, c. 268A, s.4, par.5. Therefore, nothing in the conflict of interest statute should prevent you from performing this function.
Finally, if you decide to run for office, you should be aware, in conducting your campaign, of the provisions of s.23, which set forth standards or conduct that are applicable to all state, county and municipal employees. Section 23(d) provides that you must not use or attempt to use your official position to secure unwarranted privileges or exemptions for yourself or others. You should be careful, therefore, not to use any of the resources of the Police Department, such as xerox machines, telephones, or police cars, to further your candidacy. Furthermore, s.23 (e) provides that you must not, by your conduct, give a reasonable basis for the impression that any person can improperly influence you or unduly enjoy your favor in the performance of your official duties. You should not, therefore, exercise your considerable discretion as a Police Officer in such a manner that it could appear to be influenced by promises of support for your candidacy.
In conclusion, the Commission finds that you may serve for compensation as both a municipal Police Officer and a member of the General Court, as long as you observe the limitations outlined above. Should you be elected to the State Senate and have a question about the propriety of a specific activity, please feel free to request a further advisory opinion. [3]
End Of Decision
