Opinion  EC-COI-83-1

Date:	01/11/1983
Organization:	State Ethics Commission

A Board of Selectmen member in a town, after leaving the board, must observe a six-month waiting period, pursuant to St. 1982, c. 107, and not the thirty-day waiting period provided for in § 21A of the conflict of interest law, before being eligible to be appointed by the board to the executive secretary position.

Facts

You are a member of the board of selectmen in the Town of ABC (Town) and are interested in applying for the position of executive secretary to the board of selectmen.

Question

Following your resignation as a member of the board of selectmen, what is the waiting period after which you will be eligible for appointment to the executive secretary position?

Answer

You will be eligible for appointment six months after resigning your membership on the board of selectmen.

Discussion

Prior to the enactment of St. 1982, c. 107^[1] any member of a municipal board or commission who sought a position under that board or commission was ineligible for appointment to that position until the expiration of thirty days from the termination of his service as a commission or board member. G.L. c. 268A, § 21A. The thirty-day waiting period for eligibility for appointment was not limited to selectmen and included any member of a municipal board or commission. See, Starr v. Board of Health of Clinton, 356 Mass. 426, 429(1969), and could be waived through approval at an annual town meeting. In 1982 the General Court enacted St. 1982, c. 107 in response to judicial and Commission decisions holding that selectmen could not have a financial interest in an employment contract with their town. G.L. c. 268A, § 20, See, Walsh v. Love, Norfolk Superior Court Civil Action No. 132687 (July 2, 1981); EC- COI-80-89. The legislation was addressed specifically to selectmen and allows selectmen under certain conditions to hold an additional town position. However, c. 107 also adds a condition that "no member [of a board of selectmen] shall be eligible for appointment to such additional position while a member or for six months thereafter." Insofar as c. 107 establishes a longer waiting period for the eligibility of selectmen for appointment to a second municipal position than found in § 21A, the statutes conflict. Inasmuch as c. 107 does not reference § 21A or otherwise indicate how conflicts between the two provisions should be reconciled, the Commission must apply principles of statutory construction to resolve the inconsistency.

As a general principle, the Commission is obliged to construe the provisions of c. 268A, where possible, "so as to constitute a harmonious whole," Town of Dedham v. Labor Relations Commission, 365 Mass. 392, 402 (1974); EC-COI-81-75, and to give a workable meaning to c. 268A. Graham v. McGrail, 370 Mass. 133, 140 (1976). The Commission also assumes that the General Court did not intend, by passing c. 107, to engage in a futile act. Commonwealth v. Wade, 372 Mass. 91, 95 (1977). It is well settled that where a conflict appears between two statutes, it is the duty of courts (and administrative agencies) to give effect to the legislative intent in such a way that the later action may not be futile; the earlier enactment must give way. Rennert v. Board of Trustees of State Colleges, 362 Mass. 740, 743-745 (1979). Doherty v. Commissioner of Administration, 349 Mass. 687, 690 (1965). Additionally, the Supreme Judicial Court has stated that, "if a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute. This is particularly true where, as here, the specific statute was enacted after the general statute." Pereira v. New England LNG Co., Inc., 364 Mass. 109, 118-119 (1973). On the basis of these principles, the Commission concludes that the six month waiting period contained in § 20 and inserted by c. 107 prevails over the shorter waiting period appearing in § 21A. The scope of § 21A, which was enacted in 1967, includes any member of a board or commission of a city or town. On the other hand, the scope of c. 107, a 1982 enactment, is limited to one specific office in a town. Moreover, c. 107  presumptively reflects the General Court's view that a longer waiting period is desirable in light of the authority and visibility which accompanies the office of selectmen. While it would have been preferable for the General Court to have recognized the statutory conflict and to have legislatively resolved the inconsistency during the passage of c. 107, the Commission finds that the resolution of the conflict is governed by the principles expressed in Pereira, supra. Accordingly, your period of eligibility for the executive secretary position will be governed by the six-month waiting period of c. 107 rather than the thirty-day period contained in § 21A.

End Of Decision 

^[1] The provisions of c. 107 are as follows: This section shall not prohibit an employee or an official of a town from holding the position of selectman in such town nor in any way prohibit such an employee from performing the duties of or receiving the compensation provided for such office. Provided that no such member may 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 and provided further that no member shall be eligible for appointment to such additional position while a member for six months thereafter. Any violation of the provisions of this paragraph which has substantially influenced the action taken by any municipal agency in any matter shall be grounds for avoiding, rescinding or canceling the action on such terms as the interest of the municipality all innocent third parties require. No such selectman shall receive compensation from more than one office or position held in a town but shall hold the right to choose which compensation he shall receive. (emphasis added).