Opinion  EC-COI-84-75

Date:	06/19/1984
Organization:	State Ethics Commission

A town clerk is advised that an amendment to G.L. c. 268A, § 23 requires the clerk to provide a copy of § 23 to all elected and appointed town official to whom the town clerk administers an oath of office.  The town clerk is not required to, but is not prohibited from, providing a copy of § 23 to other town employees who are not administered an oath of office.

Consent to publish with identifying information

Pursuant to G.L. c. 268B, § 3(g), the requesting person has consented to the publication of this opinion with identifying information.

Facts

You are the Town Clerk for the Town of Bolton (Town). In that capacity, you are responsible for administering oaths of office to certain elected and appointed Town officials. G.L. c. 41, § 15. Upon taking an oath to faithfully perform municipal duties, the official is deemed qualified for office. The Town held its annual election on May 15,1984 to fill twelve elected offices; eight of the twelve successful candidates were incumbents. Additionally, you customarily administer oaths to individuals who are newly appointed to the positions of police chief, police officer, fire chief, highway superintendent, council on aging member, and advisory committee member. You estimate that approximately ten new individuals fill these positions each year. You do not administer oaths to any other municipal employees.

You have become aware of a recent amendment to G.L. c. 268A, § 23, St. 1983 c. 409, eff. January 7, 1984, which requires you to furnish a copy of § 23 to certain appointed and elected persons upon qualification for office.^[1] You seek guidance over the scope of c. 409.  

Question

1. Does c. 409 require you to provide a copy of § 23 to every Town employee?

2. Does c. 409 require you to provide a copy of § 23 to appointed or elected officials to whom you administer an oath of office?

Answer

1. No, although nothing in c. 409 would prohibit your furnishing such information to Town employees.

2. Yes, as to those persons first appointed or elected to such offices after the effective date of
c. 409.

Discussion

At the outset, the Commission restates the principle that the five standards of conduct contained in § 23 apply to all municipal employees, whether they work full or part-time, whether they are compensated or uncompensated, and whether they are elected or appointed. These standards, which supplement the substantive provisions contained in earlier sections of G.L. c. 268A, were enacted to prevent giving the appearance of conflict as much as to suppress all tendency to wrongdoing. Board of Selectmen of Avon v. Linder, 352 Mass. 581, 583 (1967). Irrespective of any formal notification procedure by which employees would receive copies of the text of § 23, public employees are charged with notice of the statute, Loring v. Commissioner of Public Works, 264 Mass. 467 (1928), and their lack of awareness of the principles of § 23 does not serve as a defense to proceedings alleging a violation of § 23. In the Matter of C. Joseph Doyle, 1980 Ethics Commission 11, 13; aff'd sub nom. Doyle v. Vorenberg, Suffolk Superior Court Civil Action No. 43268 (Oct. 28, 1982). Voluntary educational efforts designed to make employees more aware of the prohibitions of G.L. c. 268A, including § 23, are therefore appropriate and desirable.

However, separate from the scope of § 23 is the issue of the breadth of the mandatory notification procedure under c. 409. The procedure, derived apparently from comparable requirements under the open meeting law, G.L. c. 39, § 23B, is largely a symbolic gesture to emphasize the importance of § 23 to newly elected or appointed municipal officers. By virtue of their positions as heads of their respective agencies, elected or appointed municipal officers are authorized to take appropriate administrative action as is warranted with respect to violations of § 23. See, G.L. c. 268A, § 23 ¶ 1. It is therefore appropriate that such municipal officers be made aware of § 23 and of their role in enforcing those standards.

Chapter 409 does not require a notification to every municipal official. By its terms, c. 409 notification is required only for those elected or appointed municipal officials who must be "qualified for office." Since you as Town Clerk are responsible for administering oaths by which such officers would be deemed qualified, you are the municipal official most likely to be aware of which officers are subject to the notification procedure under c. 409. The imposition of the notification duties on you as Town Clerk makes administrative sense because you can carry out the notification responsibility during the same occasion in which you administer the oath qualifying the individual for office. Inasmuch as you administer the oath only after the initial election or appointment and not following each subsequent reelection or reappointment as a condition of qualification for office, you would be required by c. 409 to provide notification of § 23 only for the initial election or appointment. Moreover, nothing in c. 409 requires a retroactive application to town officials who were qualified for office prior to the January effective date of c. 409.^[2]

End of Decision

^[1] St, 1983, c. 409 provides as follows: Upon qualification for office following an appointment or election to a municipal agency, such appointed or elected person shall be furnished by the city or town clerk with a copy of this section. Each such person shall sign a written acknowledgement that he has been provided with such a copy.

^[2] You also ask whether you can be reimbursed for the time and materials spent in performing the duties of c. 409, Your question would be more appropriately addressed to the Division of Local Mandates within the State Auditor's Office. It would appear, however, given the relatively small number of Town officials affected annually by c. 409, that whatever expense you incur would be an "incidental local administration expense(s)." G.L. c. 29, § 27C(a).