Opinion  EC-COI-86-19

Date:	09/15/1986
Organization:	State Ethics Commission

A city councilor may participate in an order authorizing the mayor to file a home rule petition with the General Court that would require drug testing of public safety personnel provided that he first publicly disclose that the petition could affect his police officer brother.

Facts

You are a member of a City Council, and your brother is a police officer in the police department of the City. Pending before the City Council is an order authorizing the Mayor to file with the General Court a home rule petition. The petition, if enacted, would authorize the City to require mandatory drug testing of public safety officers and employees, including your brother.

Question

Does G.L. c. 268A permit you to discuss and vote on the pending petition?^[1]

Answer

Yes, provided that, prior to your participation, you publicly disclose that approval of the petition might have a potential impact on your brother.

Discussion

As a City Council member, you are a municipal employee for the purposes of G.L. c. 268A. Two sections of G.L. c. 268A potentially limit your official activities as a City Councilor with respect to the home rule petition.

The first, § 19, prohibits your participation in any particular matter^[2] which affects the financial interest of your brother or other immediate family members. Because the petition authorizes discipline or court proceedings and potential suspensions, fines or loss of salary in the event of a positive test result, your brother could have a financial interest in the enactment of the petition which is pending before the City Council. In order to fall within the § 19 abstention requirements, however, the petition must be a particular matter. Because the matter before you is a petition of a city for a special law related to its governmental powers and duties, it is excluded from the definition of particular matter.^[3] Consequently, the petition, as currently drafted, would not be a matter requiring your abstention under § 19.

The second, § 23(b)(3), prohibits you from acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that your action on the petition is the result of your kinship with your brother. Even assuming that your kinship with your brother could lead to this conclusion, however, § 23(b)(3) further provides that such a conclusion would not be reasonable if you disclose the relevant facts in a manner which is public in nature. Therefore, prior to your discussing or voting on the petition, you can comply with § 23(b)(3) by disclosing at a public meeting of the City Council the fact that your brother is a public safety employee who would be subject to potential impact should the petition be enacted.


End Of Decision

[1] You also ask whether G.L c. 268A, as applied, would violate your constitutional right of free petition. Such a determination is beyond the Commission's authority and, based on the application of G.L. c.268A to your situation, may be unnecessary.

[2] "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 petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.

[3] This was not always the case. Prior to 1983, the definition did not exclude home rule petitions of cities related to their powers and duties. The broad coverage of the term "particular matter" resulted in abstention requirements which placed burdens on legislators seeking to sponsor home rule legislation. See, EC-COI-81-81. In response to suggestions by the Legislative Research Council in 197; see, 1975 House Doc. No. 6475, Report Relating to Conflict of Interest Law and Separation of Powers, pp.56-58 and the commission, 1982 House Docket No.1235 § 1, the General Court inserted the current definition in 1982. See St. 1982 c. 612.