Opinion  EC-COI-84-3

Date:	01/09/1984
Organization:	State Ethics Commission

A town counsel may employ in his private law practice a member of the board of selectmen provided the selectman does not participate, as a selectman, in any matter affecting the financial interest of the law firm, including the selection and terms of employment of town counsel. Nor may the selectman work as a law firm employee on legal matters within the responsibility of town counsel.

Facts

You currently serve as Town Counsel for a town and also maintain a private law practice. In your private practice you employ a law student on a part-time basis and you intend to hire the law student on a full-time basis after his graduation. The law student is active in Town politics is planning to run for a seat on the five-member Board of Selectman. The duties of the Board of Selectmen include the appointment of the Town Counsel and establishing the salary and conditions of employment for the position.

Question

Will the conflict of interest law, G. L. c. 268A, allow the law student to serve as a member of the Board of Selectmen and work in your office?

Answer

Yes, within the limitations set out below.

Discussion

       If the law student wins a seat on the Board of Selectmen, he will be a municipal employee subject to the restrictions of §19. This section prohibits him from participating^1/ in any particular matter^2/ affecting the financial interest of either a person with whom he has an arrangement for future employment or a business organization which employs him. Section 19 would therefore prohibit the law student's participation in such particular matters as the selection or reappointment of a town counsel or the compensation and terms of employment for town counsel where you are a candidate for consideration or where such matters will affect your present status. Although §19 contains an exemption procedure, the student would not qualify for the exemption in view of his status as an elected official. See, District Attorney for the Hampden District v. Grucci, 1981 Mass. Adv. Sh. 2125, 2128 n. 3.

       Section 20 of the law prohibits a municipal employee from having a financial interest in a contract made by a municipal agency of the same town. Consequently, following his election as selectman, the law student must refrain from working on legal matters for you which are within your responsibility as Town Counsel. By performing such work and receiving compensation pursuant to your contract with the town, the law student would have a prohibited financial interest in a municipal contract under this section.

End of Decision

DATE AUTHORIZED:                           January 9, 1984

^1/ “Participate,” 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.

^2/ "Particular matter,” 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, duties, finances and property .