Two of you are members on the City of A's (City) Sports Facility Commission (Commission). A third member of your group, Mr. A., is a resident of the City. The Commission is a municipal body which oversees the general operation and maintenance of the City's sports facility. Recently, in response to the increasing financial strain the facility puts on the City's budget, the three of you began to have informal discussions about the possibility of having the City lease the facility to a private entity which would handle its operation. An informal opinion was sought from the city solicitor as to whether the Commission was the appropriate body to pursue a leasing arrangement The city solicitor informed you that the Commission did not have that authority, and that the only way such an arrangement could be entered into would be if the city council were to approve it and then undertake the appropriate steps. As a group you then put together a proposal which was presented to the council by Mr. A. For purposes of the proposal you called the private entity the Management Group (MG). The proposal contemplated that the three of you, possibly along with others, would form the private entity which would lease the facility. When the council received the proposal it was aware of the two Commission members' involvement in it. The council ultimately voted not to proceed with negotiations in part because of their involvement However, the two Commission members have stated that they never took any actions as Commissioners in connection with the proposal. It has been further stated that the proposal was not a matter that would come before the Commission unless the council were to seek advice from the Commission. Subsequent to the council's action, the two Commission members ceased all involvement with the proposal.
Recently, the city's finance committee contacted Mr. A. and indicated that it would like to pursue discussions about the proposal with him. In this regard, the council sent a memo to the Commission asking it to participate in a joint meeting with the finance committee to discuss the proposal because of the Commission's familiarity with the operation of the sports facility. To date this meeting has not occurred, and you have stated that when it does occur all interested city residents, and not merely Commission members, will be invited to participate. Should the finance committee decide that it is in the interest of the City to have a private entity operate the sports facility, it would submit a proposal to that effect to the council which would then vote on the matter.
In the event that the City decides to lease the sports facility there would no longer be any need for a Commission, and it is likely it would be abolished. The two Commission members would like to become involved with the proposal either at this time, or with the MG should the City decide to lease the sports facility to it.
1. May the two of you participate while you are Commission members in negotiations regarding the proposal with the City?
2. If the two of you resign from the Commission prior to the commencement of negotiations, can you participate in negotiations on behalf of MG?
3. If the MG proposal is accepted by the City and the Commission is abolished, can the two former Commission members then join MG?
1. No, unless they have been designated as special municipal employees by the city council.
2. Yes.
3. Yes.
As members of the Commission, the two of you are municipal employees within the meaning of G.L c. 268A, You therefore are subject to the provisions of that law. Mr. A., as your partner for a time in a joint business venture, is also subject to certain provisions of that law.
1. Application of G.L. c. 268A to the Two Commission Members
The sections of the law applicable to the two Commission are §§ 17, 18, 19 and 23. Section 17 provides in relevant part that a municipal employee may not receive compensation from or act as agent or attorney for anyone other than the City in connection with any particular matter[1] in which the City is a party or has a direct and substantial interest.[2] Any proposal made to the City regarding the operation of the sports facility would constitute a particular matter subject to the § 17 prohibition. Thus they may not act as MG's agent or otherwise appear on MG's behalf before any City body in connection with the proposal. Acting as agent includes not only personal participation in negotiations but also making any sort of contact, on behalf of an outside entity, with the City.[3] See e.g. EC-COI-85-21; 85-2.
Section 19 prohibits a municipal employee from participating[4] as such an employee in connection with any matter in which he or a partner or a business organization in which he is serving as officer, director, trustee, partner or employee, has a financial interest. This provision restricts the two Commission members' activities as Commissioners. They may not take any action as Commissioners which would affect either their own or MG's financial interest. It has been stated that the Commission has had no involvement with the proposal, and that any decision to lease the sports facility is not one that would be made by the Commission but rather by the city council. However, should the city council seek a recommendation or any other assistance from the Commission, the two Commission members would have to abstain from participation.
Section 18 places restrictions on the activities of former municipal employees. Section 18(a) prohibits a former municipal employee from acting as agent for or receiving compensation from anyone other than the City in connection with any particular matter in which the City is a party or has a direct and substantial interest and in which the municipal employee participated as a municipal employee. If the two Commissions were to participate as Commissioners in anything having to do with the proposal, for example making a recommendation to the city council they could not then become involved with the proposal with MG after they left the Commission. See e.g. EC-COI-82-190; 81-114. Section 18(b) prohibits a former municipal employee for one year after his employment has ceased from appearing personally before any agency of the city as agent or attorney for anyone other than the city in connection with any particular matter in which the same city is a party or has a direct and substantial interest and which was the subject of his official responsibility[5] as a municipal employee. This section focuses on official responsibility rather than participation. It would apply to the two Commission members, if for example, the Commission had official responsibility for participating in a decision about the proposal even though they had abstained from any participation. Since it has been stated that acting on the proposal is not within the responsibility of the Commission, then the provisions of § 18(b) would not be applicable.
Finally, the two Commission members should be aware of § 23 which contains general standards of conduct applicable to all state, county and municipal employees. It provides in relevant part that a public employee may not use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others. This section would be implicated if, for example, the two Commission member were to use any sort of confidential information about the sports facility gained in the course of their service as Commission members to enhance the MG proposal or otherwise benefit MG in obtaining a lease from the City.[6]
2. Application of G.L. c. 268A to Mr. A.
Section 18 of G.L. c. 268A also places restrictions on the activities of the partners of present and former municipal employees. To further the purposes of G.L. c. 268A, the term "partner" is not restricted to those who enter into formal partnership arrangements. Rather, partner means any person who joins with the municipal employee or former municipal employee either formally or informally in a common business venture. See e.g. EC-COI-84-78; 82-68. Thus, Mr. A. and the two Commission members were joined in a partnership up to the point when the council decided not to pursue the proposal and the two Commission members withdrew their involvement. Should the City enter into a lease with MG, the three of you contemplate reestablishing the partnership. Section 18(d) prohibits the partner of a municipal employee 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 and in which the municipal employee participates or has participated as a municipal employee, or which is the subject of the municipal employee's official responsibility. This section would have prohibited Mr. A. from acting as MG's agent before the council in connection with the proposal if the two Commission members had participated in the matter as Commissioners or if participating in the decision on the proposal was a subject of their official responsibility. Since it has been stated that neither of these was the case, § 18(d) would not place limits on Mr. A.'s activities. Section 18(c) prohibits the partner of a former municipal employee from engaging in any activity in which the former municipal employee is himself engaging in. Since there would be no limitations on the two Commission members activities pursuant to § 18(a) and (b) on the given facts, § 18(c) would place no restrictions on Mr. A.'s activities.
End Of Decision
