| Date: | 09/13/1983 |
|---|---|
| Organization: | State Ethics Commission |
A state employee who serves as a city councillor may vote on local initiative matters since such matters are not customarily of direct and substantial interest to the state. The filing by his state agency of an amicus curiae brief in a suit challenging a local procedure related to the initiative does not give the state a direct and substantial interest in his vote.
You currently serve as an employee in the office of the Secretary of State and are also an elected, paid member of a City Council. Pending before the City Council is a local initiative petition proposing a measure ("Act"). Prior to any City Council vote on whether to place the measure on the 1983 city election ballot, the State Ballot Law Commission (SBLC) considered and dismissed objections to the measure which were based on the city's procedure in certifying the referendum signatures. Following the SBLC action, the City Council voted on a motion to place the measure on the ballot pursuant to G.L. c. 43, § 40. You disqualified yourself from participating in the matter, and the motion failed 4-4. Following the vote, one of the petitioners filed a suit in the Supreme Judicial Court seeking an order that the City Council place the matter on the ballot. The only parties to the suit are City residents and officials. Among the parties who have filed amicus curiae briefs with the court is the Secretary of State's office. The Secretary of State does not posses any statutory or regulatory authority over the procedures for adopting local initiative petitions.
Does G.L. c. 268A permit you to vote as a City Councilor on whether the Act should be placed on the ballot?
Yes.
As an employee of the Secretary of State, you are a state employee for the purposes of G.L. c. 268A. Under G.L. c. 268A, § 4, you are prohibited from receiving compensation from any party other than the commonwealth in relation to any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. Whether you would be prohibited from voting as a City Councilor on the placement of the Act on the 1983 ballot depends on whether the vote would be a matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. On the basis of the information which you have provided, your vote would not fall within the § 4 proscription.
The procedure by which municipalities adopt initiative petitions is governed by statute, G.L. c. 43, §§ 38-41, and is not subject to regulation by the Secretary of State's office. Therefore, local initiative matters are not customarily of direct and substantial interest to the commonwealth. While the prior SBLC proceedings were clearly matters in which a state agency was a party, the proceedings involved a procedural issue distinct from the particular matter on which you seek guidance. Further, the SBLC involvement in reviewing the City certification procedure for the petition signatures does not rise to the level of a direct and substantial interest by a state agency in your vote on whether to place the Act on the city election ballot.
Nor does the commonwealth appear to have a direct and substantial interest in the lawsuit pending before the Supreme Judicial Court The lawsuit involves local residents and officials of the City and does not name as a party any state officials or state agencies. The fact that the Secretary of State's office, along with other private parties, has filed an amicus curiae brief does not, without more, give the Secretary of State's office a direct and substantial interest in your vote as City Councilor. See, EC-COI-83-67. Inasmuch as your vote would not violate § 4, it is unnecessary to consider whether you qualify or are subject to any of the exemption under § 4.
End Of Decision
