Opinion  EC-COI-84-15

Date:	01/30/1984
Organization:	State Ethics Commission

A full-time police officer may be awarded a contract to install radio system equipment in his town's fire department because he has complied with the conditions for an exemption to §20.

Facts

You are a full-time police officer for the City and also serve as an officer and part-owner of the ABC Company (ABC). Following its submission of the lowest qualified bid under a competitive bidding process, ABC recently secured a contract with the City Fire Department for the installation of equipment. You have filed with the City Clerk a statement disclosing your financial interest in the contract, and the fire department Chief has filed a written certification with the Clerk that no employee of the fire department is available to perform the installation work as part of his regular duties.

Question

^1/Does G. L. c. 268A, §20 permit you to have a financial interest in the equipment installation contract with the fire department while you also serve as a police officer?

Answer

Yes, subject to certain conditions.

Discussion

       As a full-time police officer for the City, you are a municipal employee within the meaning of G. L. c. 268A, §1(g). As a municipal employee, you are subject to the restrictions of G. L. c. 268A, and in particular §20. This section prohibits municipal employees from having a financial interest in a contract made by an agency of the same municipality. Prior to 1983, it would not have been possible for ABC to have obtained the contract with the fire department without placing you in violation of §20. However, effective March 29, 1983, the General Court amended §20 to provide that the prohibitions of §20 do not apply:

       (b) to a municipal employee who is not employed by the contracting agency or an agency which regulates the activities of the contracting agency and who does not participate in or have official responsibility for any of the activities of the contracting agency, if the contract is made after public notice or where applicable, through competitive bidding, and if the municipal employee files with the clerk of the city or town a statement making full disclosure of his interest and the interests of his immediate family; and if in the contract, and if in the case of a contract for personal services (1) the services will be provided outside the normal working hours of the municipal employee, (2) the services are not required as part of the municipal employee's regular duties, the employee is compensated for not more than five hundred hours during a calendar year, and (3) the head of the contracting agency makes and files with the clerk of the city or town a written certification that no employee of that agency is available to perform those services as part of their regular duties, and (4) the city council board of selectmen or board of aldermen approve the exemption of his interest from this section .

Decision

       On the basis of the information which you have provided, the Commission concludes that you would qualify for the recent exemption. In particular, you do not participate in or have official responsibility for the activities of the fire department, your company has fulfilled the competitive bidding requirements, the appropriate disclosures have been filed, and the services will be provided outside of your normal working hours. Accordingly, following the approval by the city council of your exemption from §20, ABC may contract with the fire department without placing you in violation of G. L. c. 268A, §20.

       Neither G. L. c. 43, §27 nor the City Ordinance modeled after that law^2/ would alter this result or otherwise establish an outright prohibition to the contract. The plain language of these statutes provides that when any municipal employee seeks to obtain a municipal contract, that the contract be accompanied by public notice, specifically, by notifying the mayor of the nature of the employee's interest in the contract and that that employee thereafter abstain from doing any official act on behalf of the city in reference to the contract. See also, EC-COI-83-114 in which the Commission confirmed G. L. c. 43, §27 as a notice statute and not establishing an outright prohibition.

End of Decision 

DATE AUTHORIZED:                        January 30, 1984

^1/ Inasmuch as city Solicitor has joined in your request, the Commission deems it appropriate to render this opinion. see, EC-COI-80-89. G. L. c. 268B, §3(g).

^2/ The first paragraph of both G. L.c. 43, §27 and the City Ordinance provide as follows:

       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 office 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; provided, that when a contractor with the city is a corporation or a voluntary stock association, the ownership of less than five per cent of the stock or shares actually issued shall not be considered as involving an interest in the contract within the meaning of this section, and such ownership shall not affect the validity of the contract unless the owner of such stock or shares is also an officer or agent of the corporation or association, or solicits or takes part in the making of the contract.