| Date: | 02/22/1983 |
|---|---|
| Organization: | State Ethics Commission |
A member of two different state boards, both within the Executive Office of Environmental Management, who is a former municipal employee, may sell a parcel of land to the Town to set aside for conservation purposes where the purchase by the Town will involve a funding request to EOEA provided that he can comply with §§ 4, 6, 7 and 23 of the conflict of interest law as a state employee and §18 of the law as a former municipal employee.
Since 1980, you have been an employee of an agency (the Agency) within the Executive Office of Environmental Affairs (EOEA), in the Department of Environmental Management. Your position there is part-time and is compensated on a per-diem basis; you are also reimbursed for expenses.
You are also a public member of the ABC Committee (Committee), a state entity also under the EOEA. You were appointed to the Committee in December 1978 by the Governor. This position is part-time and unpaid. From 1979 to August 1982, you were a member of another state board (the Board), also under the EOEA. Your position there was part-time and you received only reimbursement of expenses. While serving on the Board, in approximately June 1981, you approved (along with other members of the Board), an order, concerning the use of certain lands in a particular town (Town).
From 1964 to September of 1982, you were one of seven members of the Town's Conservation Commission (Commission), a municipal agency established pursuant to G.L. c. 40, § 8C, for the promotion and development of the natural resources and for the protection of watershed resources of that town. Under G.L. c. 40, § 8C, the Commission is empowered to receive gifts, bequests or devises of interests in real property in the name of the town, subject to the selectmen's approval, and to purchase interests in land with sums available to it. Commission members have been designated as "special municipal employees" for purposes of G.L. c. 268A, the conflict of interest law, and are appointed by the board of selectmen.
From 1972 until this month, you were also an agent of the Town's Board of Health; in that position you were not classified as a special municipal employee, nor were you involved in Commission matters.
For the last several years, you have been active in various capacities in a private, nonprofit, unincorporated, voluntary association of the conservation commissions of Massachusetts, dedicated to the education of commission members. It is a charitable organization under the Internal Revenue Code and is supported by annual dues paid by the member commissions, and small grants from public and private sources.
For the last several years, you have solely held full title to 23 acres of undeveloped land in the Town. After acquiring title, you discussed with the Commission, the selectmen and others the possibility of selling the land to the Town for conservation purposes, but no commitments or concrete plans were made. When Proposition 2 1/2 passed in 1980, and the selectmen made it clear that the Town would not pursue purchase of the land, you selected another member of the Commission, who was a builder, to develop plans for building condominiums on the property. The proposed development subsequently went before the Town's Board of Appeals, Planning Board and the Commission in 1982; although you were a Commission member at the time of the Commission hearing in March, 1982, you were not present at that hearing nor did you ever participate in the matter as a Commission member. At that hearing, a large group of citizens strongly protested the development of the parcel, and the Commission voted to seek acquisition of the 23 acres by the Town for conservation purposes instead. Your agreement with the developer was subsequently dissolved for reasons unrelated to the hearing, and you were again free to offer the land for sale. In August of 1982, you wrote to the Commission informing it of your willingness to sell the parcel to the Town for conservation purposes; on the same date, you wrote to the Board of Selectmen, disclosing your financial interest in the proposed purchase/sale and requesting a waiver under G.L. c. 268A, § 20(d).
In August 1982, the Commission (without your participation) voted to have two appraisals made of your property. You subsequently met with the appraisers separately, and also supplied a Commission employee with information on the character of the land, its uses, restrictions and title. This information was already public due to the March 1982 hearing. That employee made out, in your presence, an application to the commonwealth for "self-help" funding of the contemplated purchase. When the appraisals arrived at the Commission office, you happened to be at the office and were told the amounts. You arranged thereafter the delivery of the completed self-help application to the state Division of Conservation Services (DCS) in Boston, but you did not make the delivery yourself. The application deadline was that same day. (You resigned from the Commission the next month).
G.L. c. 132A, § 11, the "Self Help Act," establishes a program by which the Secretary of EOEA (the Secretary) may assist towns, which have established conservation commissions, in acquiring lands for conservation purposes. The program is administered by the Division of Conservation Services (DCS) in EOEA. The Act provides that the Secretary may use state funds to reimburse a town for money expended by it in establishing an approved project under the program, up to a maximum of 80 percent of the cost. Prior to receiving such reimbursement, the town (1) must file an application containing plans and information; (2) must receive the Secretary's approval of the application; (3) must have appropriated, transferred from available funds, or have voted to expend from its conservation fund an amount equal to the total cost of the project; and (4) must have completed the project to the satisfaction of the Secretary in accordance with the approved plans. The program is one of reimbursement for funds actually expended; thus, the municipality must first come up with the total cost of the project. If the town has incurred indebtedness in acquiring the land, the state reimbursement must be applied to that indebtedness. A town may not obtain a self-help grant unless the town meeting has first passed a vote authorizing the purchase of a particular parcel of land, but that vote may be conditioned upon federal or state reimbursement. A completed application must be on file before property is acquired; the project will then receive preliminary approval before the town votes, if it meets requirements and funds are available. While reserving its right to react to changed situations, the Division has never gone back on a preliminary approval if the municipality has taken action based on such approval.
In determining whether or not to approve a project for self-help funds, the Director of DCS and the Secretary solicit the recommendations of an evaluation committee; one of the places on that committee is held by a representative of the non-profit association with which you are associated. However, you are not that representative, and neither you nor the association determines what position that representative will take on any particular self-help application. The application which the Town submitted to fund the purchase of your land has been rejected without prejudice due to lack of a third appraisal. You anticipate that the application may be resubmitted by the Town in the future.
As one involved in conservation matters on these various levels, you have in the past advocated, both individually and as an officer of the association, funding of the EOEA budget, of the various self-help programs, and the Agency's budget. You are not a registered lobbyist, however.
Neither your position with the Agency nor your position on the Committee (nor your former membership with the Board) entails any participation in EOEA's funding, under the self-help program, of the purchase of conservation lands under G.L. c. 132A, § 11. In each of those positions you serve no more than approximately 15 or 20 days in any given year.
Does the conflict of interest law permit you to sell your land to the Town for conservation purposes? If so, can that sale be funded by a self-help grant from EOEA while you serve on two entities within the EOEA?
You may sell your land to the Town, but whether or not the sale may be funded by a self-help grant will depend on the terms of the Town's vote to enter into the sale.
Since your resignation from the Commission and the board of health positions, you are a former municipal employee for purposes of the conflict of interest law, G.L. c. 268A. As a current employee of the Agency and the Committee, you are a state employee under that
law;[1] but because you serve only part-time on those boards, you are a special state employee in each of those positions, as that term is used in G.L. c. 268A.[2]
As a former municipal employee, you are subject to § 18 of G.L. c. 268A, which states:
(a) A former municipal employee [may not] knowingly [act] as agent or attorney for,
[nor receive] compensation directly or indirectly from anyone other than the same
city or town in connection with any particular matter[3] in which the city or town is a
party or has a direct and substantial interest and in which he participated[4] as a
municipal employee while so employed.
(b) a former municipal employee [may not], within one year after his last employment
has ceased, [appear] personally before any agent of the city or town as agent or
attorney for anyone other than the city or town in connection with any particular matter
in which the same city or town is a party or has a direct and substantial interest and
which was under his official responsibility as a municipal employee at any time within
a period of two years prior to the termination of his employment. (emphasis added)
There are two particular matters at issue in your situation: first, the contract for the sale of your land to the Town, and second, the Town's application for self-help funding for that purchase.
Your proposed conduct will comply with § 18(a) because (1) you have not participated as a municipal employee in the negotiations for the sale of your land to the Town; rather, you absented yourself from meetings in which that sale was voted upon or discussed; (2) while you may have participated in the Town's previous application for self-help funds to purchase your land, your participation was not in your capacity as a municipal employee but as owner of the land, it was not substantial,[5] and it related to an application which was subsequently rejected by EOEA. The Town will have to submit a new application in the next funding cycle to receive reimbursement if it should in fact purchase your land; previous Ethics Commission opinions have ruled that each such application, or renewal, is a separate particular matter.[6] Since you are no longer a municipal employee you will not be participating in the future as an employee in any renewed self-help application which may result in reimbursement for the purchase of your land.
Section 18(b) prohibits your appearing personally as an agent for a non-town party before a town agency, in connection with certain particular matters. However, in prior interpretation of this language the Ethics Commission has indicated that appearance as an "agent" necessarily implies that one appears on behalf of another entity; for this reason, the Commission has not read this language so as to prohibit appearances on one's own behalf.[7] If you appear before any agencies of the Town regarding your land, you will do so solely as representative for yourself and not for any trust, partnership, corporation or third party; you will not thereby violate §18(b).
As a current state employee, you must also comply with §§ 4,6 and 7 of G.L. c. 268A. Under § 4(a),
No state employee shall, otherwise than as provided by law for the proper discharge
of official duties, directly or indirectly receive or request compensation from anyone
other than the commonwealth or a state agency, in relation to any particular matter
in which the commonwealth or a state agency is a party or has a direct and substantial
interest.
If you sell your property to the Town, you will be compensated by the Town (someone "other than the commonwealth or a state agency"). As noted above, the contract for sale is a particular matter under G.L. c. 268A. Because you anticipate that the Town will seek self-help funds for the purchase, requiring preliminary approval by EOEA before the purchase is made, the commonwealth has a direct and substantial interest in the purchase, regardless of whether the funding is subsequently given. However, you qualify for an exemption from § 4 which provides:
A special state employee shall be subject to paragraphs (a) and (c) only in relation to a
particular matter, (a) in which he has at any time participated as a state employee, or
(b) which is or within one year has been a subject of his official responsibility, or (c) which
is pending in the state agency in which he is serving. Clause (c) of the preceding
sentence shall not apply in the case of a special state employee who serves on no more
than sixty days during any period of three hundred and sixty-five consecutive days.[8]
Applying this paragraph to the facts you have provided; the Ethics Commission finds that (a) you have not participated in the particular matter as a state employee. Neither your position with the Agency nor that on the Committee has involved any action or participation in c.132A, § 11 land purchases for conservation purposes or funding of such purchases. In your former position on the Board, you participated in signing a restriction order which affected lands in the Town, including yours, but that restriction order was unrelated to the purchase now being contemplated. (b) You have not had official responsibility as a state employee for c.132A, § 11 purchases of conservation land, or funding of those purchases. (c) The contemplated land purchase and self-help funding, if they are pursued, will be particular matters which will be pending in the state agency in which you serve, EOEA.[9] However, your combined service in EOEA positions does not in the aggregate amount to sixty days during any one-year period, so this clause does not apply to prevent you from receiving compensation from the Town for your land.
Section 6 of G.L. c. 268A prohibits a state employee from participating as a state employee in a particular matter in which he has a financial interest. From your description of your duties with the Agency and on the Committee, it appears that there would be no opportunity for you to participate in the self-help funding process for the land purchase since it would in no way come before those bodies; thus § 6 imposes no substantive restrictions on your activities in those positions.
Section 7 of G.L. c. 268A states:
A state employee who has a financial interest, directly or indirectly, in a contract made by a
state agency, in which the commonwealth or a state agency is an interested party, of which
interest he has knowledge or has reason to know, shall be punished by a fine of not more
than three thousand dollars or by imprisonment for not more than two years, or both.
This section shall not apply. . . (d) to a special state employee who does not participate in
or have official responsibility for any of the activities of the contracting agency and who files
with the state ethics commission a statement making full disclosure of his interest and the
interests of his immediate family in the contract, or (e) to a special state employee who files
with the state ethics commission a statement making full disclosure of his interest and the
interests of his immediate family in the contract, if the governor with the advice and consent
of the executive council exempts him.
Before the Commission can apply § 7 to you, it must first determine whether the potential for state funding of the land purchase gives you a financial interest in a state contract. This determination depends on the terms of the Town's vote to acquire your land. As described in the statement of facts above, the self-help program is one of reimbursement for money already spent. Events occur in the following order:
If the Town votes to buy your land, you obviously will have a financial interest in a contract with the Town, since you are sole owner of the land. When the Town pays you, it does so out of Town money and uses no state funds. (It is only afterwards that the Town receives state money). That transaction does not necessarily give you a financial interest in the Town's subsequent receipt of state money and does not necessarily invoke § 7.
However, the Town may vote to buy your land on the condition that it will receive self-help money,[11] i.e. it can vote to appropriate money and also apply for self-help and, if it receives a negative response from EOEA, to abandon the purchase. If the vote is so conditioned, then the refusal of EOEA to grant self-help money means no purchase occurs. In this situation, the prospective seller clearly has a direct financial interest in the EOEA decision and reimbursement; and if the seller is a state employee, he must comply with § 7. If, however, the vote is not conditional and the sale will proceed regardless of self-help funding, then the seller's financial interest is only in his contract with the town, not the state, and § 7 is not implicated.
Because the town meeting has not yet occurred and no vote has been taken on this matter, the Commission cannot tell you whether the anticipated sale will violate § 7. If the Town's vote to purchase your land is unconditional, you will be in compliance. If it is conditional, you must satisfy one of the exemptions in § 7.[12] You would not qualify for the exemption in clause (d) cited above, because, although you are a special state employee, you do participate in the activities of the contracting agency. EOEA (See footnote 9). Therefore, the only exemption available to you would be (e), the gubernatorial exemption.
Finally, § 23 of G.L. c. 268A contains general standards of conduct which are applicable to all state employees. In particular, § 23(c) prohibits you from improperly disclosing confidential information acquired by you in the course of your official state duties or using such information to further your personal interests. You therefore cannot use confidential information, which you might obtain in the course of your EOEA activities, to assure the Town in advance that its self-help funding application will or will not be approved. Section 23(d) prohibits you from using or attempting to use your official positions (at EOEA) to secure unwarranted privileges or exemptions for yourself or others. Under this provision, you cannot use or attempt to use your influence within EOEA to secure the self-help funding for the Town's purchase of your land. You should also avoid any lobbying, whether formal or informal, on behalf of funding for the self-help program generally, while the Town has a self-help application pending for your land.
End Of Decision
