Opinion  EC-COI-84-92

Date:	07/17/1984
Organization:	State Ethics Commission

An elected member of a municipal commission is subject to §§ 19 and 23 of the conflict of interest law if the municipal department overseen by the municipal commission hires the member’s son to a seasonal job in the department.

Facts

You are an elected member of a municipal commission of a Town (Town). Your son is twenty-four years old and does not live at home with you. Pursuant to a Town advertisement in the spring, 1984, your son applied for and was hired in a Town department under your responsibility. The position is seasonal and covers the period of April through November. You state that you abstained as commissioner from any discussion or decision concerning your son's employment.

Question

1. Does G.L. c. 268A prohibit outright the employment of your son as a Town employee while you serve as a member of the commission?^[1]

2. If not, what limitations does G.L. c. 268A place on your activities as a commissioner?

Answer

1. No.

2. You will be subject to the conditions set forth below.

Discussion

1. By virtue of your position as commissioner, you are a "municipal employee" within the meaning of G.L. c. 268A, § 1(g). Nothing in G.L. c. 268A explicitly prohibits family members from working for the same municipality or municipal agencies, although, as will be seen below, G. L. c. 268A does place certain limitations on the activities of municipal employees.

A section of G.L. c. 268A which implicitly addresses this question is § 20. Under § 20, a municipal employee (such as you) may not have a financial interest, directly or indirectly in a second contract made by the same municipal agency.^[2] Although your son has a financial interest in his employment contract with the Town, that financial interest is not imputed to you because your son is emancipated, and you have no legal duty to support him. Compare, EC-COI-84-11; 81-92; 80-121.^[3]

As a municipal employee you are subject to the standards of conduct contained in § 23. Two relevant provisions prohibit you from 

     using or attempting to use your official position to secure unwarranted privileges or
     exemptions for yourself or others [§ 23(¶ 2)(2)], and

     by your conduct giving reasonable basis for the impression that any person can
     improperly influence or unduly enjoy your favor in the performance of your official
     duties, or that you are unduly affected by the kinship, rank, position or influence of
     any party or person. [§ 23(¶ 2) (3)].

As long as you abstained, formally or informally, from any discussion or decision of the commission concerning your son's employment, these provisions would not appear to pose any barrier to your son's employment.

2. As a municipal employee you are subject to the restrictions of G.L. c. 268A, § 19 which disqualifies you from taking certain actions in your municipal employee capacity. Specifically, § 19 prohibits you from participating^[4] in any particular matter^[5] in which, in relevant part, a member of your immediate family^[6] has a financial interest. Although § 19 provides an exemption procedure under which municipal employees may be allowed to participate where the financial interest "is not so substantial as to be deemed likely to affect the integrity of the [employee's] services,...this exemption is not available to you as an elected municipal employee. District Attorney for the Hampden District v. Grucci, 1981 Mass. Adv. Sh. 2125, 2128 n. 3.

The decision to appoint an employee is a particular matter under § 1(k). Because a member of your immediate family has a financial interest in this decision, § 19 would prohibit your participation in the decision. The plain language of § 19, therefore, would disqualify you from selecting a member of your immediate family to serve as a Town employee. Section 19 also disqualifies you from participating in any particular matter affecting the financial interest of your family member. For example, you would also be prohibited from:

1. recommending to other commissioners the appointment of a family member;
2. participating in the determination of the salary of a family member;
3. determining the terms and conditions of employment of a family member, and
4. evaluating the job performance of a family member. Should such matters come before you while present at meetings of the commission, you must refrain      from participating in these matters and should leave the room. See, Graham v. McGrail, supra at 138.

End Of Decision 

^[1] You indicate that the Town Counsel orally advised you that your son's employment was prohibited by G.L. c. 268A, but no written opinion was issued. The Town Counsel has, in effect, joined in your opinion request to the Commission.

^[2] In view of the Commission's conclusion, it is unnecessary to discuss whether any exemptions in § 20 would apply to you.

^[3] These citations refer to prior Commission conflict of interest opinions including the year they were issued and their identifying numbers. Copies of these and all other advisory opinions are available (with identifying information deleted) for public inspection at the Commission offices.

^[4] G.L. c. 268A, § 1(j) defines "participate," as 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.

^[5] G.L. c. 268A, § 1(k) defines "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 petition of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.

^[6] G.L. c. 268A, § 1(e) defines "immediate family" as the employee and his spouse, and their parents, children, brothers and sisters.