| Date: | 06/18/1985 |
|---|---|
| Organization: | State Ethics Commission |
The general counsel to a municipal corporation may purchase a parcel of land from that municipality's redevelopment authority without violating the conflict law as long as he meets a number of special requirements. He satisfies the public notice requirement because the process by which the redevelopment authority will sell the parcel was sufficiently open.
You are general counsel-to the ABC City Corp. (Corp.). You and a partner wish to purchase a parcel of land from a city authority (Authority). You state that the Corp. ha no regulatory authority over the Authority.
When the Authority has parcels of land available for redevelopment, either of two processes is used to dispose of them A developer kit is prepared for larger parcels and a public notice soliciting responses from individual developers is published. Smaller parcels generally do not receive this treatment. They are held by the Authority, and persons or entities interested in developing a particular parcel may approach the Authority. This latter process was utilized here.
In this case, the Authority informed you that you and your partner would have to secure community support for your proposal before it would be approved. You met with surrounding neighbors and abutters, many of whom expressed their approval in letters to the Authority. The preservation society also registered its support of the proposal. The Authority 'had published in local newspapers a legal notice about the proposal, the principals involved, and the date and time of the Authority meeting at which it was to be considered.
May you and your partner purchase the parcel of land from the Authority?
Yes.
As general counsel to the Corp., you are a municipal employee for purposes of the state conflict of interest law, G.L. c. 268A, and, as a result, are subject to the provisions of that statute.
Section 20 of the conflict law prohibits a municipal employee from having a financial interest in a contract made by a municipal agency. The Authority is a municipal agency, and the agreement between you and the Authority for the sale of the land in question would be a contract in which you would have a financial interest. Therefore, unless you can qualify for one of the exemptions to § 20 in that statute, you are prohibited from purchasing the land from the Authority.
There are several exemptions from the § 20 limitation on financial interests in municipal contracts. Section 20(b) provides that the limitation shall not apply to: a municipal employee who is not employed by the contracting agency or an agency which regulates the activities of the contracting agency and who does not participate in or have official responsibility for any of the activities of the contracting agency, if the contract is made after public notice or where applicable, through competitive bidding, and if the municipal employee files with the clerk of the city or town a statement making full disclosure of his interest and the interests of his immediate family in the contract.
You are not employed by the Authority and you state that the Corp. does not regulate the Authority's activities. Therefore, as long as the process used by the Authority satisfies the requirement of "public notice" set out in the exemption, and you file the required disclosure, your financial interest in the sale of the land by the Authority will not be prohibited by § 20.
The term "public notice" is not defined in § 20(b), but the Commission has found the requirement to be satisfied by various processes. See, e.g. EC-COI-83-35; 83-37; 83-56; 84-34.[1] In each of these cases, the process was sufficiently open that the impression that public employees had unique or special access to those contracts was dispelled.
In EC-COI-83-37, the Commission ruled that a general announcement to the public that a state agency would be making certain development funds available, and a post-application public hearing regarding the proposed development were sufficient to satisfy the public notice requirement. The process used by the Authority is similar to that approved in EC-COI-83-37. Attempts were made by the Authority, and by you at the Authority's direction, to make interested parties aware of the proposed land sale. Those parties were also notified of where and when to appear to support or object to the proposal. Therefore, this process offered "the vestiges of openness that are contemplated by the (public notice requirement)." EC-COI-83-37. Therefore, if you file the appropriate disclosure of your financial interest with the city clerk, you will be in compliance with § 20(b) and may proceed with the purchase of the parcel of land from the Authority.
End Of Decision
