| Date: | 05/20/1986 |
|---|---|
| Organization: | State Ethics Commission |
A firefighter is prohibited under § 20 of the conflict of interest law from also holding the position of elected constable in the same town because a constable is a municipal position and the Board of Selectmen have not designated the constable position as a special municipal employee.
You are both a full-time firefighter and an elected constable in the same town.
I. Jurisdiction
For conflict of interest law purposes, the term "municipal employee" is defined as "a person performing services for or holding an office, position, employment or membership in a municipal 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(g). Elected constables hold an office in a municipal agency within the meaning of G.L. c. 268A, § 1(g). The statute which provides for the election of town officers, G.L. c. 41, § 1, provides in pertinent part:
Every town at its annual meeting shall in every year when the term of office of any incumbent expires, and except when other provision is made by law or by charter, choose by ballot from its registered voters the following town officers for the following terms of office: One or more constables for a term of one or more years, unless the town by vote provides that they shall be appointed. [Emphasis added].
By holding a municipal office pursuant to this statutory provision, elected constables are municipal employees for purposes of the conflict law.
This result is buttressed by the fact that constables are afforded a broad range of statutory powers normally associated with public office. Constables serve process in civil and criminal cases, "have the powers of sheriffs to require aid in the execution of their duties," and serve all warrants and other processes directed to them by the selectmen of their town for notifying town meetings or for other purposes." G.L. c. 41, § 94. While constables secure their own clients and have discretion as to what services within their authority they will provide, the fees constables may charge for their services are regulated by statute. See G.L. c. 262, § 8 (as amended by the Acts of 1985). Constables have the power to pre-empt local officials in some instances. See G.L. c. 40, § 37 (chief of police must make local lock-up accessible to constables); G.L. c. 41, § 39 (constables serve as tax collectors if the appointee refuses to serve or no one is elected or appointed as collector of taxes). Constables also possess the power of arrest without a warrant under a number of circumstances, including: violation of the election laws (G.L. c. 56, § 57); illegal manufacture, sale or transport of alcohol (G.L. c. 138, § 56); trespassing, after notice, upon a house, building, boat, wharf, etc, (G.L. c. 266, § 120); playing games in a public place for money or other property (G.L. c. 271, § 2); and keeping a house, room or place for prostitution. (G.L. c. 272, § 10). Other instances in which constables have the statutory power of arrest include breaches of the peace and health law violations. The breadth of constabulary powers of arrest is evidenced by the fact that both the local and state police derive much of their power from constables:"... [police officers] shall have all the powers and duties of constable except serving and executing civil process." G.L. c. 41 § 98. See also G.L. c, 22, § 9A.
Based on the foregoing (i.e. the election of constables as municipal "officers," the statutory regulation of their fees, and their statutory authority to perform governmental functions), the Commission concludes that elected constables are municipal employees subject to the conflict of interest law.
II. Application of G.L. c. 268A, § 20
Section 20 of Chapter 268A prohibits a municipal employee from having a financial interest, directly or indirectly, in a contract made by the same municipality. Under this section, both positions must be analyzed. First, as a municipal firefighter, you do not run afoul of § 20 inasmuch as the financial interest you have in the receipt of fees as a constable is in an elected position and thus does not constitute a financial interest in a contract, See EC-COI-82-26.
However, you are also considered a municipal employee as a constable. Your financial interest in your firefighter's salary constitutes a prohibited financial interest in a municipal contract in violation of § 20. If the Board of Selectmen designated the position of constable as a special municipal employee position pursuant to G.L. c. 268A, § 1(n), you would be eligible for either of two exemptions to the § 20 prohibition. See G.L. c. 268A, § 20(c) and § 20(d). These exemptions provide that the § 20 prohibition against having a financial interest in another municipal contract shall not apply:
(c) to a special municipal employee who does not participate in or have official responsibility for any of the activities of the contracting agency and who 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, or
(d) to a special municipal employee who 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, if the city council or board of alderman, if there is no city council, or the board of selectmen approve the exemption of his interest from this section.
However, you state that the Board of Selectmen has voted not to designate the position of constable such special status, which is within their discretion. Because you are ineligible for any other exemptions,[1] your service as both a full-time firefighter and a constable violates § 20.[2]
End Of Decision
