Opinion  EC-COI-83-153

Date: 11/15/1983
Organization: State Ethics Commission
Location: Boston, MA

A Building Commissioner in a Town who jointly owns various vacant lots in the Town with his spouse may be involved in the construction and sale of buildings on the lots in the Town as long as he complies with §§ 17 and 19 of the conflict of interest law.

Table of Contents


You are Building Commissioner in a Town (Town). You and your wife jointly own various vacant lots in the Town and contemplate construction of buildings on these lots for subsequent sale. In order to secure the various permits and approvals required by the Town for this construction, you may have to appear before agencies of the Town.

In August, you received an advisory opinion from the Town Counsel regarding the propriety of proceeding as detailed above while holding the position of Building Commissioner. The Town Counsel ruled that both Section 107.5 of the State Building Code and Section 17 and 23 of G.L. c. 268A, the state conflict of interest law prohibited you from pursuing the planned construction. You have asked the Commission to review that opinion.[1]


Does your proposed construction and sale of buildings on lots jointly owned by you and your wife in the Town, while you are Building Commissioner in the Town, violate G.L. c. 268A, the conflict of interest law?


No, as long as you comply with the restrictions outlined below.


As Building Commissioner in the Town you are a municipal employee as defined in the conflict of interest law, G.L. c. 268A, Sections 1 et seq., and, as a result, are subject to the provisions of that law.

Section 17 of the conflict law prohibits a municipal employee from being compensated by (Section 17(a)) or acting as agent or attorney for (Section 17(b)) anyone other than the Town in connection with any particular matter[2] in which the Town is a party or has a direct and substantial interest. "Compensation" is defined in the statute as "any money, thing of value or economic benefit conferred on or received by any person in return for services rendered or to be rendered by himself or another." G.L. c. 268A, Section 1(a). Section 17 also contains an exemption which states that the section shall not prevent a municipal employee from acting with or without compensation, as agent or attorney for or otherwise aiding or assisting members of his immediate family except in those matters in which he has participated or which are the subject of his official responsibility; provided, that the official responsible for appointment to his position approves. The definition of "immediate family" includes your spouse. G.L. c. 268A, Section 1(e).

The Town permits and approvals required for construction of these buildings are particular matters in which the Town is a party. Since the proceeds from a sale of real property do not constitute compensation as defined in the conflict law (see EC-COI- 82-85), you would not violate Section 17(a). Section 17(b), however, can be violated even where no compensation is involved. Since the property is jointly owned, any appearances you make before Town agencies will be on behalf of not only yourself but also your wife.[*] If such appearances involve particular matters outside the authority of the Building Commissioner, you will not violate Section 17(c) as long as your appointing official gives his or her approval. However, you will not be able to appear on matters within the authority of the Building Commissioner so long as you own the property jointly.

Section 19 of G.L. c. 268A prohibits a municipal employee from participating as such in any particular matter in which he or any member of his immediate family has a financial interest. The statute further provides that it shall not be a violation of Section 19 if the municipal employee first advises the official responsible for his appointment of the nature and circumstances of the particular matter, makes full disclosure of the financial interest, and receives in advance of participation a written determination made by the appointing official that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the municipality may expect from the employee. This section prohibits you from taking any action as Building Commissioner in connection with your property, unless you receive a written exemption from your appointing official.

Section 23 of the law provides certain standards of conduct applicable to all municipal employees. The section prohibits the use or attempted use of your official position to secure unwarranted privileges or exemptions for yourself or others, the pursuit of a course of conduct which gives reasonable basis for the impression that any person can improperly influence or unduly enjoy your favor in the performance of your official duties or that you are unduly affected by the kinship, rank, position or influence of any party or person.

As Building Commissioner in the Town, you have regular access to Town officials and have authority over various construction matters in the Town. You would violate the provisions of section 23 if you improperly exploit your access to Town officials to aid your construction plans, thereby using your official position to secure unwarranted privileges. You also may violate section 23 if you give any special consideration or treatment in your capacity as Building Commissioner to any contractors with matters before you whom you may have employed to work on your property, because you would give reasonable basis for the impression that you are improperly influenced in the performance of your official duties by your private relationship with these contractors. Although these provisions do not prevent you from pursuing your planned construction, you should take great care to abide by their terms.

End of Decision

[1] Section 22 of the conflict law authorizes Town Counsels to issue advisory opinions regarding the application of G.L. c. 268A to municipal employees. The Commission does not ordinarily review opinions issued by Town Counsels pursuant to that authority. However, to the extent that the Town Counsel in your case purports to rely on Commission interpretations in his ruling, the Commission
will clarify those interpretations. The Commission takes no position on the Town Counsel's interpretation of and reliance on the State Building Code because the Commission's interpretative authority extends only to G.L. c. 268A.

[2] 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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, finances and property." G.L. c. 268A, Section 1(k).

[*] Appearing on just your own behalf does not constitute appearing as an "agent." See EC-COI-83-12.

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