| Date: | 02/25/1986 |
|---|---|
| Organization: | State Ethics Commission |
An employee of the state Department of Environmental Quality Engineering may serve as an elected Board of Health member in his municipality subject to the restrictions of § 4 of the conflict of interest law.
You are currently employed by the Department of Environmental Quality Engineering (DEQE) as the supervising sanitary engineer for the technical assistance and training section of DEQE's Division of Water Pollution Control. Among its other duties, your section provides training to DEQE personnel, Boards of Health and their agents, and other municipal officials as to their responsibilities under 910 (MR 15.00) the state regulations concerning minimum requirements for the subsurface disposal of sanitary sewage.
You have recently taken out nomination papers for the Board of Health (Board) in your town. The Board is responsible for carrying out the public health laws as defined through the Department of Public Health (DPH). It is also the Board's responsibility to enforce the state's sanitary code for subsurface disposal systems up to 15,000 gallons per day. You state that systems in excess of 15,000 gallons per day are regulated directly by DEQE, and that the Board may on its own refer a matter within its jurisdiction (i.e. involving systems dealing with up to 15,000 gallons of waste per day) to DEQE.
Does G.L. c. 268A permit you to run for and serve as a local Board of Health member while you are employed by DEQE?
Yes, subject to the limitations discussed below.
As a full-time employee of DEQE, you are a state employee covered by the conflict of interest law, G.L. c. 268A. Section 4 of the conflict law prohibits a state employee from receiving any compensation from, or acting as agent or attorney for anyone other than the commonwealth in connection with any particular matter[1] in which the commonwealth or a state agency is a party or has a direct and substantial interest.
Determinations regarding the current operations of subsurface disposal systems are "particular matters" within the meaning of § 1(k). Board decisions or findings concerning the compliance of restaurants and retail food markets with state and local sanitary code standards are similarly considered "particular matters". The state has a direct and substantial interest in these particular matters in view of the extensive state regulation of municipal sewage activities and sanitary code compliance. See EC-COI-84-103; 82-120.[2] Your duties as a local Board of Health member would therefore fall within the § 4 prohibition.
There is an exemption in § 4 which allows a state employee to hold an elective or appointive position in a town under certain conditions. In order to comply with this exemption, matters which you would vote or act on as a Board of Health member must not be matters which are "within the purview of the agency by which you are employed". As a Board of Health member, you would have to refrain from discussing or voting on sewage matters that DEQE regulates.[3] This restriction would apply to subsurface disposal systems of any size which come before the Board for action. Because systems of up to 15,000 gallons may be referred to DEQE by the Board, the Commission concludes that those systems as well as the larger systems are "within the purview" of DEQE. However, the exemption would not prohibit you from acting on public health matters in which the Board shares concurrent powers with DPH. Nor would the exemption prohibit you from participating in matters of a distinctly local nature. For example, permits to disposal companies or sewer hook-up requests by individuals would be considered local matters outside of the purview of DEQE.[4]
End Of Decision
