You are one of three partners in a development team (Team) that is planning to build housing in the town (Town).[1] One of your partners, XYZ, a construction firm owner, was a member of the Planning Board (Board) until his recent resignation.[2]
In order to build multiple-family dwellings in the Town, the Board must initiate a proposed zoning amendment to the Town's protective zoning by-law. The Team has appeared before the Board on the issue of the amendment. Before XYZ resigned from the Board, he disqualified himself from participating as a Board member. However, XYZ remained in the audience with the Team to answer specific questions from the Board. You and your other partner have made the formal presentations to the Board and have prepared sample zoning amendments for the Board's use. The Team has also appeared before the Town Board of Selectmen to discuss the project.
In addition, XYZ was a member of an ad hoc committee (Committee) of church members from the towns of A and B who identified the need to have housing built in their community.[3]The Committee came together solely as concerned citizens with no municipal sponsorship or mandate. The chairperson of the Committee is a Town selectman. Other Committee members are also employed by the Town. Your Team has been designated by the Committee to prepare a development proposal on its behalf. The Team will receive a fee providing the project is successful. The Committee has informed the Team that your partner will be the contractor.
The Committee has chosen a site in the Town to build the housing. The principal site is property owned by the Town and administered by the Commission. The Commission is appointed by the Board of Selectmen annually to administer the property. The chairperson of the Commission is also a member of the Committee. Any decision to sell the property would require a two-thirds vote of a town meeting.
1. Limitations on XYZ, a former municipal employee
As a former municipal employee, the provisions of § 18 apply to XYZ. Section 18(a) permanently prohibits a former municipal employee from acting as agent for or receiving compensation from anyone other than the same town in connection with any particular matter[4] in which the town is a party or has a direct and substantial interest and in which he participated[5] as a municipal employee while so employed.
The proposed zoning amendment being considered by the Board is a particular matter under G.L. c. 268A, § 1(k). You state XYZ did not participate as a Board member in the discussions of the proposed zoning change. In the event that XYZ did participate as a municipal employee in discussions of the zoning controversy with regard to the housing project before the Board, he would be prohibited from acting as agent for the Team or receiving compensation from anyone in connection with the zoning amendment. This restriction would apply only to the zoning issue. XYZ would not be prohibited from participating in other aspects of the housing project. For example, the sale of land for the project would be a different particular matter. The Commission does not generally view an entire project as a particular matter. See EC-COI-84-45.[6]
Section 18(b) prohibits a former municipal employee for one year following the termination of his municipal services from appearing personally before any agency of a town as agent for anyone other than the town in connection with any particular matter in which the town is a party or has a direct and substantial interest and which was under his official responsibility during the last two years of his municipal employment. The scope of this restriction covers those matters which were pending within the Board during XYZ's membership, even though XYZ may not have participated in those matters. Thus, the zoning controversy which was before the Board while XYZ was a member would be considered under his "official responsibility" for the purposes of § 18(b). For a one-year period following his resignation, he would be prohibited by § 18(b) from appearing before the Board on the zoning issue. Any matters which first come before the Board after XYZ's resignation would not be considered within his official responsibility. However, if he worked on the matter while a municipal employee, the § 18(a) prohibition would continue to apply.
2. Limitations on you as a partner of a former municipal employee
Under § 18(c) a partner of a former municipal employee is prohibited for one year, following the date of the municipal employee's termination of municipal service, from participating in any activity in which the former municipal employee is himself prohibited from engaging in by § 18(a). Since you state that XYZ did not participate as a Board member in discussions of the zoning amendment, you would not be prohibited from participating in the Board's discussion of the zoning issues. Section 18(c) would not prohibit you from appearing before the Board on behalf of the Team. However, you must take steps to assure that XYZ will be removed from any share of the fees which you will receive from your representation. The § 18(a) prohibition on XYZ's receipt of compensation includes "any money, thing of value or economic benefit conferred on or received by any person in return for services rendered or to be rendered by himself or another." G.L. c. 268A, § 1(a) (emphasis added). As long as XYZ is a partner and may potentially share the assets of the partnership, including the fees received by you, he will be receiving "compensation" for the purposes of § 18(a). See, Buss, The Massachusetts Conflict of Interest Law: An Analysis, 45 B.U.L. Rev. 299, 349 (1965); Braucher, Conflict of Interest in Massachusetts in Perspectives of Law, Essays for Austin Wakeman Scott, 22 (1964). To avoid placing XYZ in violation of § 18(a), you should therefore segregate from the partnership assets which XYZ would otherwise share the fees which you will receive for your appearance before the Board on behalf of the Team.
3. Status of the ad hoc committee
The scope of the restrictions of the municipal employees who are participating in the Committee depends upon whether the Committee is a municipal agency for purposes of G.L. c. 268A. Municipal agency is defined by the conflict of interest law as "any department or office of a city or town government and any council, division, board, bureau, commission or other instrumentality thereof or thereunder, G.L. c. 268A, § 1(f). In its previous determinations concerning the public status of an entity for the purposes of Chapter 268A, the Commission has focused on the following four factors:
- the means by which it was created (e.g. legislative or administrative action);
- the entity's performance of some essentially governmental function;
- whether the entity receives and/or expends public funds; and
- the extent of control and supervision exercised by government officials or agencies over the entity.
None of these factors standing alone is dispositive; rather the Commission has considered the conjunctive effect produced by the extent of each factor's applicability to a given entity. For example, the Commission concluded that local private industry councils are municipal agencies within the meaning of c. 268A, § 1(f) because of the role they play in the implementation of the Federal Job Training and Partnership Act; namely in the decision-making role they share with local elected officials in the development of job training plans, the selection of grant recipients and the expenditure of public funds. EC-COI-83-74. See, also EC-COI-82-25 [regional school district is a municipal agency for c. 268A purposes because it is supported solely by public funds and it provides a service which each municipality in the Commonwealth is required by law to provide]. However, in this case the Committee does not possess sufficient indices of a municipal agency. The Committee was created solely by members of the same church interested in the issue of housing in their communities. The function of the Committee is to promote activity for the eventual construction of housing. The Committee does not receive or expend public money to achieve their goal. Furthermore, the Town has no control over the actions of the Committee, which has no Town approval or sponsorship. The presence of Town officials on the Committee does not by itself give the Committee the status of a municipal agency. See EC-COI-84-65. Based on the foregoing for the purposes of G.L. c. 268A, the Committee is considered a private entity, rather than a municipal agency.
4. Limitations on town employees who are member of the Committee
According to G.L. c. 268A, § 17(c) municipal employees are prohibited from acting as agent or attorney for anyone other than the town in connection with any particular matter in which the same town is a party or has a direct and substantial interest. Accordingly, municipal employees who are also members of the Committee are prohibited from appearing on behalf of the Committee or acting as its spokesperson before the Town. For example, this prohibition would apply to the selectwoman who is also a member of the Committee. She would be prohibited from appearing before any of the Town's boards on behalf of the Committee. This prohibition would apply less restrictively to special municipal employees who are members of the Committee. These employees would only be prohibited from acting on behalf of the Committee in relation to a particular matter in which they have at any time participated as municipal employees or which is or within one year has been a subject of their official responsibility. G.L. c. 268A, § 17(¶ 4)(c) .[7] For example, the Commission member who is also a Committee member cannot act on behalf of the Committee before the Commission with regard to the sale of the property because, as a Commission member, the property is the subject of his official responsibility. However, he could appear on behalf of the Committee before the Board on the zoning issue.
Municipal employees are also subject to the standards of conduct contained in G.L. c. 268A, § 23. Specifically, § 23(¶ 2)(3) prohibits a municipal employee from by his conduct giving reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by kinship, rank, position or influence of any party or person. For example, Commission members should not use their official position to favor the Team. In addition, the standards of conduct prohibit a municipal employee from using or attempting to use his official position to secure unwarranted privileges or exemptions for himself or others or disclosing confidential information. For example, the municipal employees who are members of the Committee should be careful not to reveal information received as a result of their official position to private parties interested in the housing project.
End Of Decision
