Opinion  EC-COI-82-39

Date:	07/01/1982
Organization:	State Ethics Commission
Location:	Boston, MA

An explanation about how §§ 4 and 6 of the conflict of interest law apply to a legislative staffer if elected a town selectman.

Introduction

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

You currently serve as an employee of the General Court and are assigned to a joint legislative committee.  You are also running for the office of Selectmen in Town X.  Prior to your decision to seek the office, you filed an article for the Annual Town Meeting seeking a home rule petition on a certain issue.  The article, if approved by the Town Meeting, would apply only to Town X and would require further approval by the General Court.  You wish to know the limits which the conflict of interest law, G.L. c. 268A, would place on you should you be elected as a Selectman and specifically on your further involvement in the home rule petition.  The Commission advises you that your activities will be subject to the limitations 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.

Discussion

In your capacity as an employee of the General Court, you are a state employee within the meaning of G.L. c. 268A, s.1(q).  As a state employee you are prohibited 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 1(k), includes any judicial or other proceeding, application, submission, decision or determination but specifically excludes enactment of general legislation by the General Court.  The enactment of special legislation such as the local home rule petition which you have filed would be considered a particular matter.  See, EC-COI-81-81.  Town X 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 s.4, EC-COI-80-46.  However, voting on resolutions concerning, and petitioning the General Court for, special legislation such as the home rule petition are not permitted under s.4 because these activities relate to particular matters in which the Commonwealth has a direct and substantial interest.

Under a recent amendment to s.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 St. 1980, c.10.  However, the Municipal Exemption will not lift the s.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 employee are addressed in s.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.  Town X is a business organization (see Attorney General Conflict Opinion No. 613).  In view of the definition of "particular matter" as noted above, the s.6 prohibition would not apply to your research and recommendation regarding general legislation but would apply to special legislation applicable
solely to your Town.  Accordingly, you may not participate in your legislative capacity in the enactment of the home rule petition, should the petition be approved by the Town Meeting.

Section 6 further requires 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 1) 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 employee, you must file the disclosure required by s.6 whenever you are assigned a matter involved special legislation affecting Town X.
 

End of Opinion