| Date: | 01/09/1984 |
|---|---|
| Organization: | State Ethics Commission |
A full-time municipal water department employee does not violate the conflict of interest law by also serving as a part-time special police officer in the same municipality because he qualifies for an exemption under § 20.
You are a full-time employee in the Town Water Department. You are also interested in working after-hours as a special police officer for the Town. You state that your work as a police officer would be on a part-time, as needed basis; for example, if there were not enough regular police officers available to work details such as security for a local mall or for road details. The Town has a population of more than 35,000.
Does the conflict of interest law, G. L. c. 268A, permit you to work part-time as a special police officer for the Town while simultaneously being employed full-time in the Water Department?
Yes, subject to certain conditions.
As a full-time employee of the Town Water Department, you are a municipal employee as defined in G.L. c. 268A, § 1(g). The provisions of G.L. c. 268A, the conflict of interest law, therefore, apply to you. Section 20 prohibits a municipal employee from having a financial interest in another contract made by a municipal agency of the same town. Until recently, the type of dual employment arrangement you proposed violated G.L. c. 268A, § 20, and you did not qualify for any exemptions. However, on November 10, 1983, the following amendment to § 20 was signed into law, effective in February 1984: [Section 20 does not apply] to a municipal employee if the contract is for personal services in a part-time, call, or volunteer capacity with the police, fire, rescue, or ambulance department of a town or any city with a population of less than thirty-five thousand inhabitants; provided, however, that the head of the contracting agency makes and files with the clerk of the city or town a written certification that no employee of said agency is available to perform such services as part of his regular duties, and the city council, board of selectmen or board of aldermen approve the exemption of his interest from this section. St. 1983 c. 481 [emphasis added].
The issue raised by your advisory opinion request is whether you qualify for this exemption, inasmuch as the Town is a town with a population greater than thirty-five thousand inhabitants. As a general principle, the Commission is obliged to construe the provisions of c. 268A, where possible, "so as to constitute a harmonious whole," Town of Dedham v. Labor Relations Commission, 365 Mass. 392,402(1974); EC-COI-83-1, and to give a workable meaning to c. 268A. Graham v. McGrail, 370 Mass. 133, 140 (1976). Although the language of the exemption could have been more artfully drafted, the sensible reading is that the 35,000 population ceiling applies only to cities. Such a reading is supported by the word "any" appearing before city, which seems to separate the treatment of cities and towns under this exemption. Applying the population ceiling solely to cities is also consistent with another provision in § 20 which treats towns less restrictively than cities.[1]
The Commission therefore concludes that a narrow construction of the language "of a town or any city with a population of less than thirty-five thousand inhabitants" is in accordance with "the spirit of the act." See Comm. v. Calvin, 388 Mass. 326, 328(1983). See also 2A C. Sands, Sutherland Statutory Construction § 46.05 (4th ed. 1973). Accordingly, as of February 8, 1984, you may work as a part-time special police officer in addition to being employed in the Town Water Department without violating the conflict of interest law, provided that the Chief of the Police Department makes the requisite certification to the Town Clerk and the Board of Selectmen approves the exemption.
End of Decision
