You are currently employed by a state University. Your university position requires your involvement with the counties which house University facilities. You also serve as the chairman of the board of selectmen of a Town (Town). You are now considering running for the Office of County Commissioner.
Does G.L. c. 268A permit you to serve as a County Commissioner while retaining your state University position and your membership
on the board of selectmen?
Yes, although you may not retain your membership on the county advisory board and will be subject to several other limitations set
forth below.
1. Restrictions on your activities as a County Commissioner
Assuming that you are elected as a County Commissioner, you will become a county employee within the meaning of G.L. c. 268A, § 1(d). As a county employee you would be prohibited by G.L. c. 268A,§ 11 from receiving compensation from or acting as the agent of any party other than the County in relation to any particular matter[1] in which the County or an agency of the County is a party or has a direct and substantial interest. Section 11 also provides that, as a county employee, you may hold elective or appointive office in a municipality and receive compensation for your municipal duties as long as you do not vote or act in your municipal capacity on any matter which is within the purview of the county agency by which you are employed or over which you have official responsibility.
As chairman of the board of selectmen, you have been designated under G.L. c. 35, § 28B as the
representative of the Town to the advisory board to the commissioners of the County. In that capacity, you necessarily review and make recommendations concerning County expenditures, long-range capital facilities development plans and capital facility budget requests for the County. Further, as an advisory board member, you possess the authority to delete or reduce certain budget plans or requests by the County Commissioners. See, G.L. c. 35, § 28B paragraph 2. In view of these budgetary responsibilities as an advisory board member, it is clear that you must vote or act on matters within the purview of the County and over which you have official responsibility as a County commissioner. Accordingly, you are prohibited by G.L. c. 268A, § 11 from maintaining your dual status as an advisory board member while you serve as a County Commissioner. Moreover, following your resignation from the advisory board, you would continue to be prohibited from acting as a selectman on matters within the purview of the County or over which you have official responsibility. For example, while it is not clear whether, as a member of the board of selectmen, you will retain any statutory authority regarding the Town's advocacy before the advisory board, you should refrain from participating in any discussions with the board of selectmen over budgetary matters pending before the advisory board, since the County has an obvious financial interest in the outcome of the advisory board's actions. See, EC-COI-81-150.[2]
Additionally,§ 13 prohibits you from participating as a county employee in any particular matter in which the Town has a financial interest. As a County Commissioner, you must, therefore, refrain from participating personally and substantially in any decisions or other particular matters which affect the financial interests of the Town in a direct and immediate way. However, you would be permitted to participate in those decisions where the financial interests of the Town are shared with other communities within the County such as the determination and application of an aggregate assessment formula. See, EC-COI-81-62.
2. Restrictions on Your Activities as a State Employee
As a state University employee, you are a state employee for the purposes of G.L. c. 268A. Section 4 of G.L. c. 268A prohibits you from receiving compensation from or acting as agent or attorney for anyone other than the commonwealth in relation to any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. This section is relevant to your activities for both the Town and County.
Insofar as your activities as a County Commissioner are concerned, it is not clear at this point whether you will be involved in matters of direct and substantial interest to the commonwealth or a state agency. Although it appears that most of your statutory responsibilities as Commissioner would be limited to County matters, see generally, G.L. c. 35, you should be aware that G.L. c. 268A, § 4 prohibits your receiving compensation from or acting as agent or attorney for the County (someone other than the state), in relation to particular matters of direct and substantial interest to the commonwealth or a state agency. With respect to your activities as a member of the board of selectmen, you are eligible for the "municipal exemption" to § 4 which permits your holding such office provided that you not vote or act as a
selectman on any matter which is within the purview of the University or over which you have official responsibility as a University employee. See, St. 1980, c. 10. For example, you may not act or vote on contracts or controversies between the Town and the University.
G.L. c. 268A, § 6 is also relevant to your activities as a state employee. This section prohibits your participation as a University employee in any particular matter in which a business organization (Such as the Town) for which you serve as an officer has a financial interest. Should such a matter come before you, you must disclose the nature of the matter and the financial interest in it to the Ethics Commission and your appointing official. That official must then either
1) assign the matter to another employee;
2) assume responsibility for the particular matter; or
3) make a written determination that the interest is not so substantial as to be deemed likely
to affect the integrity of the services which the commonwealth may expect from you.
Your disqualification from participation would come into play if you were called upon to review requests submitted by the Town. Should that occur, you are required to comply with the procedures outlined above.[3]
3. Restrictions Applicable to All Positions
As a public employee, you are also subject to the standards of conduct contained in G.L. c. 268A, § 23.[4] These standards are designed to avoid conduct which either gives the appearance of impropriety or which raises concerns over whether an official can keep competing interests from interfering with his public responsibility. These concerns are particularly applicable to your situation because of the potential overlap of your activities in the three levels of government. You should therefore keep the provisions in mind and exercise considerable care to avoid violating these provisions when you are acting in any of these capacities.
End Of Decision
