Opinion  EC-COI-83-114

Date:	08/16/1983
Organization:	State Ethics Commission

A mayor who is on leave of absence from a private company may not sign a contract with the company on behalf of the city. The city should therefore submit the contract to the city clerk for his approval pursuant to G.L. c. 43, §27.

Facts

You are the Mayor of the City of ABC (City) and are on an unpaid leave of absence from DEF, Inc., a road-building company located in ABC. DEF has been awarded certain contracts by the City Department of Public Works for the current fiscal year, and the contracts are about to be submitted to your office for your signature, which is required under G.L. c. 43 § 29^.[1] 

Question

1.  Does G.L. c. 268A allow you to sign the DEF contracts on behalf of the City?
2. If not, what alternative steps should be taken to effectuate the DEF contracts?

Answer

1. No.
2. See discussion below.

Discussion

1. In your capacity as Mayor of the City, you are a municipal employee for the purposes of G.L. c. 268A. EC-COI-82-144. As a municipal employee you are subject to the restrictions of G.L. c. 268A § 19 which, in relevant part, prohibits you from participating^[2] in any particular matter^[3] which affects the financial interest of a business organization with which you have an arrangement concerning future employment. DEF, a private company, is a business organization for the purposes of § 19. Further, by virtue of your leave of absence status from DEF, you have an arrangement concerning future employment with DEF. By signing the DEF contracts on behalf of the City, you would be participating personally and substantially in a particular matter. Cf. Urban Transport, Inc. v. Mayor of Boston, 373 Mass. 693,697-98(1977) (the Mayors approval of a validly awarded contract is not a ministerial act); accord, Eastern Mass. St. Ry Co. v. Mayor of Fall River, 308 Mass. 232,235(1941) (interpreting G.L. c. 4 § 29). Your signature would therefore violate § 19 because it would affect the financial interest of a business organization with which you have an arrangement for future employment. Nor does it appear that any exemptions in § 19 apply to you.^[4]

2. The Commission is obliged to give G.L. c. 268A a workable meaning, Graham v. McGrail 370 Mass. 133,140(1976), and to construe G.L. c. 268A with related provisions of other statutes "so as to constitute a harmonious whole." Town of Dedham v. Labor Relations Commission, 365 Mass.  392, 402 (1974); EC-COI-83-1; 81-75. Inasmuch as you are prohibited by G.L. c. 268A from engaging in an act which is a condition for the effectuation of municipal contracts under G.L. c. 43 § 29, there is a compelling need to construe the General Laws so as to permit the City to carry on its municipal business while observing the safeguards of G.L. c. 268A. This result can be best effectuated by having the DEF contracts submitted directly to the City Clerk for approval. Not only would the City Clerk be the customary recipient of all contracts normally signed by the Mayor, G.L. c. 41 § 17, but also other statutory provisions would appear to contemplate such a substitute arrangement. In particular, G.L. c. 43 § 27^[5] establishes a procedure under which mayors may give notice of their conflict to the city council, discontinue any official relationship with the contract, and have the city clerk sign the contract Adoption of such a procedure with respect to the DEF contracts would be consistent with both the language of G.L. c. 268A § 19 and the purposes of G.L. c. 43 § 27.

End of Decision

^[1] In relevant part, G.L c. 43 § 29 provides that  All contracts made by any department, board or commission where the amount involved is two thousand dollars or more shall be in writing, and no such contract shall he deemed to have been made or executed until the approval of the mayor under Plan A, B, C or For of the city manager under Plan D or E, and also of the officer or the head of the department or of the chairman of the board, as the case may be, making the contract is affixed thereto.

^[2] For the purposes of G.L c. 268A, "participate" is defined as participate in agency action or in a particular matter personally and substantially as a state, ... employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L c. 268A, § 1(j).

^[3] For the purposes of G.L. c. 268A, "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. - -," G.L. c. 268A. § 1(k).

^[4] Under the second paragraph of § 19, certain municipal employees may seek out and receive from their appointing official written permission to participate in an otherwise prohibited matter. As an elected official, this avenue is not available to you. District Attorney for the Hampden District v. Grucci, 1951 Mass. Adv. Sh. 2125, 2129, n. 3. Nor, as discussed, infra, would this appear to be an appropriate case to apply a "rule of necessity." Compare EC- COI-82-10 (rule applicable to achieve quorum): 80-100 (rule applicable only where there isa critical need and no other person employed by the commonwealth possesses the power to participate in the matter).

^[5] Under G.L c. 43 § 27, No mayor or member of the city council or school committee and no officer or employee of the city shall directly or indirectly make a contract with the city, or receive any commission, discount, bonus, gift, contribution, or reward from or any share in the profits of any person making or performing such contract, unless the mayor, such member, officer or employee, immediately upon learning of the existence of such contract, or that such contract is proposed shall notify in writing the mayor, city council or school committee of the nature of his interest in such contract, and shall abstain from doing any official act on behalf of the city in reference thereto. In case of such interest on the part of an officer whose duty it is to sign such contract on behalf of the city, the contract may be signed by any other officer of the city duly authorized thereto by the mayor, or if the mayor has such interest, by the city clerk... (emphasis added)