| Date: | 08/13/1985 |
|---|---|
| Organization: | State Ethics Commission |
A member of a city council who is also county treasurer may not participate in city council advisory votes concerning the use of surplus county funds because he would be participating in matters within the purview of the county.
You are a member of a City Council. You are also the ABC County Treasurer, and as such, serve as chairman of the County Retirement Board.
The City Council was asked by one of its members to recommend that any surplus county funds that may become available be returned to the cities and towns. You state that such votes are merely advisory. and that at present, there are no surplus funds. You further state that the decision as to the use of any surplus county funds lies with the County Commission and the County Advisory Board (made up of representatives of the cities and towns) rather than the County Treasurer.
Does G.L. c. 268A permit you to participate in such advisory votes before the City Council, in light of your positions as County Treasurer and chair of the County Retirement Board?
No.
The conflict law defines county employee as "a person performing services for or holding an office, position, employment, or membership in a county agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis." G.L. c. 268A, § 1(d). As county treasurer, you are a county employee within the meaning of this section and are therefore subject to the provisions of G.L. c. 268A.
Section 11 prohibits a county employee from receiving compensation, or acting as agent or attorney for anyone other than the county by which he is employed, in connection with any particular matter in which that county is a party or has a direct and substantial interest, However, Section 11 contains the following exemption:
This section shall not prohibit a county employee from holding an elective or appointive office in a city, town or district nor in any way prohibit such an employee from performing the duties or receiving the compensation provided for such office. No such elected or appointed official may vote or act on any matter[1] which is within the purview of the agency by which he is employed or over which such employee has official responsibility.[2]
Since the passage of the "municipal exemption" in 1980, the Commission has examined, in reference to the comparable exemption at the state level, whether a state employee's duties as a municipal employee come within the purview of his state agency on several occasions. The Commission has limited, and in some cases prohibited, proposed municipal employment in light of the "purview" language. See EC-COI-84-120, 84-103; 83-26; 82-89; 82-39.
The same rationale is applicable in analyzing the municipal exemption at the county level. For example, the Commission has held that a county commissioner and selectman may not also serve as the town's representative to the advisory board to the county commissioners because it would necessitate his voting or acting on matters within the purview of the county. EC-COI-84-35. That advisory opinion further stated that the selectman "should refrain from participating in any discussions with the board of selectmen over budgetary matters pending before the advisory board, since the county has an obvious financial interest in the outcome of the advisory board's actions." Id. Likewise, city council advisory votes concerning the use of surplus county funds would be matters within the purview of the county; thus, your participating in such votes would violate § 11. The § 11 conflict is underscored by the fact that if the surplus funds do not revert to the cities and towns, it might go into the county pension fund, over which you have official responsibility as chairman of the county retirement board.[3]
End Of Decision
