| Date: | 03/19/1982 |
|---|---|
| Organization: | State Ethics Commission |
| Location: | Boston, MA |
An elected housing authority member is not prohibited under § 20 of the conflict of interest law from also holding the elected positions of tax collector/town clerk, selectman and/or assessor; however, other statutes may prohibit such multiple office holding.
You are a resident of the Town of ABC. You are presently a member of the Housing Authority. You have filed nomination papers to run for four additional part-time elective offices: tax collector/town clerk; selectman; assessor for one-year term; and assessor for a three-year term. The compensation for tax collector/town clerk is $9,760 a year; for selectman, $1,400 a year, and for assessor $1,100 a year, with the chairman receiving $1,600. You presently turn your salary of $200 from your position on the Housing Authority over to charity and intend to do the same, or not accept, the compensation for any of the other offices you might win. You wish to know whether the conflict of interest statute, G.L. c. 268A, prohibits you from holding more than one of these elected offices. The Commission concludes that it does not but advises you that there are prohibitions on multiple office holding outside the conflict of interest law that you should be aware of which may place restrictions on your holding one or more of these offices.
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.
The State Ethics Commission is authorized to render advisory opinions only as to the requirements of Chapter 268A or Chapter 268B (the Financial Disclosure Law). However, there are a number of other statutory and charter provisions that place limitations on multiple office holding. While these provisions are outside the jurisdiction of the Commission, it is imperative to note them. A Commission ruling that an activity is permitted under Chapters 268A or 268B should not be construed as a ruling that the activity is permitted under all laws. That clearly is not the case, particularly with respect to multiple office holding.
For example, G.L. c. 41, § 24, states that "[i]n no city or town, including Boston, shall an assessor hold the office of collector of taxes or deputy collector of taxes." This statutory provision would appear to prohibit you from holding the position of town clerk/collector of taxes and either one of the assessor posts at the same time. If you were to be elected to the office of town clerk/collector of taxes, you would also be, by virtue of your position as town clerk, a member of the board of registrars of the town. G.L. c. 51, § 15. Since § 25 of that same chapter places restrictions on registrars holding other offices, you may be prohibited by this provision from holding any other elected or appointed office within the town. In addition, under the Home Rule Amendment, a number of communities have adopted restrictions against some types of multiple office holding in their local charters. You should seek a determination from your town counsel as to whether your holding of the offices of member of the Housing Authority, town clerk/collector of taxes, selectman, and assessor would violate any such charter provision or statutory prohibition.
The section of the conflict of interest law, G.L. c. 268A, that is applicable to this situation is § 20. That provision states that:
(a) municipal employee who has a financial interest directly or indirectly, in a contract made by a municipal agency of the same city or town, in which the city or town is an interested party of which financial interest he has knowledge or has reason to know, shall be punished by a fine of not more than three thousand dollars or by imprisonment for not more than two years, or both.
The definition of municipal employee includes "a person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis." G.L. c. 268A, § 1(g). Therefore, by holding any one of the four elective offices for which you have filed nomination papers, you would be considered a municipal employee for the purposes of § 20. The remaining question, then, is whether the compensation to which you would be entitled[1] if you held a second, third, or fourth of these elective offices would be a financial interest in a contract within the meaning of G.L. c. 268A, § 20. The Commission concludes that it would not.
The purpose of § 20 is to prevent municipal employees from impropriety in the acquisition of contracts with other municipal agencies. The public nature of candidacy for office, the safeguards of election laws and procedures, and the aggregate manner by which elective choices are made all provide protection against the abuse implicit in individual control and influence over the awarding of contracts which § 20 was designed to prohibit.[2] This determination that election to public office does not create a contract is also consistent with the common law. In Walker v. Cook, 129 Mass. 577, 578-579 (1880), the Supreme Judicial Court stated:
[The assessors] are not, in any sense, the agents or servants of the town, and the town, by the election of assessors, enters into no contract with them for the payment of their services.
...the right to recover [compensation] depends upon the statute, and not upon any contract, express or implied, with the town.
See also Attorney General v. Pelletier, 240 Mass. 264, 296 (1922). ("The election of the respondent as district attorney and his acceptance of the office constituted no contract between the respondent and the Suffolk district under the laws and Constitution of this Commonwealth.")
Finally, § 23 of the conflict of interest law provides standards of conduct that are applicable to all state, county, and municipal employees. Section 23(a) prohibits a municipal employee from accepting other employment which will impair his independence of judgment in the performance of his official duties. Although the § 23(a) prohibition need not be applied to your situation in view of the sufficiency of other statutory provisions, it is possible that certain instances of dual office holding, not expressly prohibited by statute or charter, could be so incompatible as to violate this provision.
In summary, the conflict of interest law does not prohibit you from holding the multiple elective offices which you are seeking meaning of that term in § 20 of G.L. c. 268A. However, you should investigate and observe restrictions that exist in other provisions of the Massachusetts General Laws or your town's charter.
End of Decision
