Opinion  EC-COI-84-52

Date:	04/17/1984
Organization:	State Ethics Commission

A municipal police officer may run for the office of Governor's Councilor. During his candidacy, the §23 standards of conduct will prohibit him from using the resources of the Police Department to further his candidacy. Once elected, he may continue to serve as a police officer without violating §4 provided that he does not act as a police officer in any matter within the purview of the Council, pursuant to the "municipal exemption." He would also have to abide by §6 and §23 regarding his dual governmental positions.

Facts

You currently serve as a police officer in municipality ABC and are interested in running for the office of Governor's Councilor. The Governor's Council consists of the lieutenant governor and eight councilors, the latter elected biennially. M. G. L. Const. Pt. 2, c. 2 §3, Art 1 et seq.; Amend. Art XVI, LXIV. Pursuant to M.G.L. c. 6, §3, councilors are paid $4,000 a year. As stated in Opinion of the Justices, 190 Mass. 616, 618 (1906), "the Constitution recognizes two kinds of executive businesses which may come before the council: one, that which is to be done by the Governor and council acting together as an executive board, and the other, business to be done by the Governor, acting under the responsibility of his office as supreme  executive magistrate, by and with the advice and consent of the council."

Question

Does G. L. c. 268A permit you to serve in, and receive the compensation for, both positions?

Answer

Yes, subject to the limitations discussed below.

Discussion

As a police officer in ABC, you are a municipal employee as defined in G. L. c. 268A, §1 (g), and are therefore covered by the conflict of interest law.

1. Candidacy 

   Because of your municipal employee status, you will be subject to the standards of conduct set out in section 23 during your candidacy for the office of Governor's Councilor. Specifically, section 23 ¶2 (2) prohibits a municipal employee from using or attempting to use his official position to secure unwarranted privileges or exemptions for himself or others. You should be careful, therefore, not to use any of the resources of the Police Department to further your candidacy. For example, the use of Police Department vehicles, xerox machines, telephones, stationery and other publicly provided supplies for your personal campaign purposes would constitute a violation of §23 ¶2 (2). Likewise, campaigning on municipal time is prohibited under this section of the conflict law. EC-COI-82-61.

2. Dual Governmental Positions 

   If elected to the position of Governor's Councilor, you will also be a state employee within the meaning of G. L. c. 268A, §1 (q) since you will be providing services for the executive branch of state government. Although certain provisions of G. L. c. 268A apply less restrictively to special state employees under G. L. c. 268A, §1 (o),^1/ the Commission advises you that you would not satisfy the statutory conditions for special state employee status since you would be a paid elected official. EC-COI-82-102.

   As a state employee, you would be prohibited by G. L. c. 268A, §4 from acting as agent or attorney for, or receiving compensation from, anyone other than the commonwealth or a state agency in relation to any particular matter^2/ in which the commonwealth or a state agency is a party or has a direct and substantial interest. However, your position as a police officer is an appointed municipal position, and therefore falls within the so-called municipal exemption to §4, which provides:

          This section shall not prohibit a state employee from holding an elective or appointive office in a city, town or district, nor in any way prohibit such an employee from performing the duties of or receiving the compensation provided for such office. No such elected or appointed official may vote or act on any matter which is within the purview of the agency by which he is employed or over which such employee has official responsibility.

   Under this exemption, you may both serve in, and be paid for, the positions of police officer and Governor's Councilor without violating §4 provided that you do not act as a police officer in any matter within the purview of the Council. You should therefore identify areas of overlap between actions by the Governor which require the advice of the Council and your police officer duties. For instance, M. G. L. Const. Pt. 2, C. 2, §1, Art. 8 provide that in granting a pardon, the Governor must act "by and with the advice of Council." If the issue of a pardon were raised before the Governor's Council concerning a defendant arrested by the ABC police, you would be prohibited from any involvement in the matter as a police officer.

   Section 6 would prohibit you as a state employee from participating^3/ in any particular matter in which you or the town of ABC has a financial interest. Therefore, if a matter came before the Governor's Council in which ABC had a financial interest (excluding matters in which ABC's interest was of a general nature shared by other municipalities), you would have to abstain from the discussion and vote in such matters.

End of Decision

DATE AUTHORIZED:                           April 17, 1984

^1/ G. L. c. 268A, §1 (o) defines a "special state employee" as a "state employee:

1. Who is performing services or holding an office, position, employment or membership for which no compensation is provided or
2. Who is not an elected official and
   1. occupies a position which, by its classification in the state agency involved or by the terms of the contract or conditions of employment, permits personal or private employment during normal working hours, or
   2. in fact does not earn compensation as a state employee for an aggregate of more than eight hundred hours during the preceding three hundred and sixty-five days. For this purpose, compensation by the day shall be considered as equivalent to compensation for seven hours per day. A special state employee shall be in such status on days for which he is not compensated as well as on days on which he earns compensation." (emphasis added)

^2/ For the purposes of G. L. c. 268A, "particular matter" is defined as 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) .

^3/ G. L. c. 268A, §1 (j) defines participate as "to 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.