Opinion  EC-COI-84-125

Date:	11/08/1984
Organization:	State Ethics Commission

A city councilor is advised that §§ 19, 20 and 23(c) of the conflict of interest law do not prohibit him from being appointed to an unpaid reserve officer position with the police department but may impose restrictions if funding for reserve police officers is approved.

Facts

You are a city councilor in the City of ABC (City). You have been appointed by the Chief of Police to the position of reserve police officer. This appointment was made from a civil service list based on seniority. The position is not funded and has not been funded for the next fiscal year. The city council votes on each budget line item for city departments. In the future, the city council may authorize police reserve officers to be paid. Until the police reserve officers are funded, they will not be called upon for duty.

Question

What limitations does G.L. c. 268A place on your being a city councilor and a reserve police officer for the city?

Answer

You are subject to the limitations discussed below.

Discussion

Initially, the Commission advises you that, as a city councilor, you are a "municipal employee" within the meaning of G.L. c. 268A, § 1(g).^[1] For the purposes of the question you pose, the relevant sections of G. L. c. 268A are §§ 19, 20, and 23.  

 1. Section 19

As a municipal employee, you are subject to the restrictions of G.L. c 268A, § 19(a) which disqualifies you from taking certain actions in your city councilor capacity, specifically, § 19 prohibits you from participating^[2] in any particular matter^[3] in which you have a financial interest.^[4] This section seeks to ensure honesty in government by preventing public employees from advancing their own interest at the expense of the public. Where it is obvious or reasonably foreseeable that your private interest in the reserve police officer position will be affected by your official action, then the provisions of § 19 will apply. See EC-COI-84-98. Consequently, if the police department submitted in its budget to the city council a proposal to fund the reserve officers, you would be prohibited from participating in any vote on the police department budget because you would have a financial interest in reserve officers receiving compensation. Once the police budget has been approved by the other members of the city council, you would be able to participate in a consolidated vote of the entire budget. See Graham v. McGrail, 370 Mass. 133.

2. Section 20

This section prohibits a municipal employee from having a financial interest, directly or indirectly, in a contract made by a municipal agency of the same city in which the city is an interested party. By serving as a city councilor and as a reserve police officer, you would be performing services for two separate "municipal agencies."^[5] If you received compensation for the reserve police officer position, you would have a financial interest in a contract within the meaning of § 20. See, In the Matter of Kenneth R. Strong, 1984 Ethics Commission 195. Accordingly, you would be prohibited from maintaining a paid employment arrangement with the police department while you remain a city councilor.^[6]

3. Section 23

As a municipal employee, you are subject to the standards of conduct contained in § 23. This section prohibits you from accepting other employment which will impair your independence of judgment in the exercise of your official duties. In this regard, your duties and responsibilities as an elected public official may inherently conflict with your private interest as a reserve police officer. In effect, you have a contract for future employment with the police department. Although it is unclear when police reserve officers will be funded, the likelihood of your employment with another municipal agency inherently clouds your activities as a city councilor. In particular, your ability to participate on the city council in such police matters as collective bargaining, appointments and policy will be affected by your holding the position of reserve police officer. The question will inevitably arise whether you are using your position as city councilor to further the interests of the city, your constituents, the police department, or your own situation as a prospective employee. Additionally, § 23 provides that by your conduct you should not give 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 rank, position or influence of any party or person. Your ability to exercise independence of judgment on behalf of the public is undermined by the impression that you may want to favor the police department for your own personal gain as a reserve police officer. You should therefore refrain from participating as a city council member on all matters relating to the police department while you remain eligible for appointment as a reserve police officer.

End Of Decision 

^[1] For the purposes of G.L. c. 268A, "municipal employee" is defined as a person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis, but excluding

1. elected members of a town meeting and
2. members of a charter commission established under Article LXXXIX of the Amendments to the Constitution. G.L. c. 268A, § 1(g).

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

^[3] For purposes of G.L. c. 268A, "particular matter" is defined 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] Although § 19 provides an exemption procedure under which appointed municipal employees may be allowed to participate in matters which affect their financial interest, this exemption is not available to you as an elected official.

^[5] For purposes of G.L. c. 268A. "municipal agency" is defined as any department or office of a city or town government and any council, division, board, bureau, commission, institution, tribunal or other instrumentality thereof or thereunder. G.L. c. 268A, § 1(f).

^[6] Although § 20 does provide exemptions to the prohibition of maintaining a financial interest in two municipal contracts, you are ineligible for the exemptions. Section 20(b) is not available to you because of the role the city council plays in the budget approval of the police department. Section 20 also contains an exemption which, in pertinent part, allows a selectman to hold another position in a town as long as that member does not vote or act on any matter which is within the purview of the agency by which he is employed...This exemption applies solely to members of boards of selectmen. See EC-COI-83-38. In the Matter of Kenneth R. Strong, supra. Section 20(f) does not apply because the population of the city exceeds 35,000.