Opinion  EC-COI-86-9

Date:	05/20/1986
Organization:	State Ethics Commission

A fixed based operator at an airport is prohibited under section 20 of the conflict of interest law from being appointed by the airport commission to be the airport manager under a contract management proposal.

Facts

The ABC Airport Commission ("Airport Commission") has advertised for an airport manager, as you will be retiring in the near future. Pursuant to G.L. c. 90, § 51E, the airport manager is appointed by the Airport Commission as its executive officer, and is responsible to said commission for the proper maintenance and operation of the airport and of all facilities under his supervision.

Of the twenty-eight applications received by the Airport Commission, two are contract management proposals submitted by fixed base operators (FBOs) who have ongoing business relationships with the Airport. You state that both Mr. X and Mr. Y. have leases with the Airport Commission.^[1] The business Mr. X operates out of the Airport is "DEF", which consists of charter flights, flight instructions and aircraft rental. "GHI", which Mr. Y owns and operates out of the Airport, includes an aircraft maintenance hangar and service, a storage hangar and flight instruction. You further state that Mr. Y was the former owner/operator of "JKL", which operates under a year-round lease with the Airport Commission. Mr. Y sold his stock in "JKL" in May of 1983, but took a mortgage from the new owner which is secured by the stock.

Question

Does the conflict of interest law permit either of these FBOs to serve as airport manager of the ABC Airport?

Answer

No.

Discussion

The conflict of interest law, G.L. c. 268A, § 1 et seq., defines municipal employee 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). The airport manager, who is responsible for the maintenance and operation of the ABC municipal airport, is a municipal employee within the meaning of the conflict law and is, therefore, subject to the provisions of that law.

Section 20 prohibits a municipal employee from having a financial interest, directly or indirectly, in a contract made by a municipal agency of the same town. Both Mr. X or Mr. Y would have such a prohibited financial interest in a municipal contract, namely in their respective leases with the Airport Commission, if appointed airport manager. The sole exemption available to a full-time municipal employee is § 20(b), which provides that the § 20 prohibition shall not apply:

(b) to a municipal employee who is not employed by the contracting agency or an agency which regulates the activities of the contracting agency and who does not participate in or have official responsibility for any of the activities of the contracting agency, if the contract is made after public notice or where applicable, through competitive bidding, and if the municipal employee files with the clerk of the city or town a statement making full disclosure of his interest and the interest of his immediate family; and if in the case of a contract for personal services

1. the services will be provided outside the normal working hours of the municipal employee,
2. the services are not required as part of the municipal employee's regular duties, and the employee is compensated for not more than five hundred hours during a calendar year,
3. the head of the contracting agency makes and files with the clerk of the city or town a written certification that no employee of that agency is available to perform those services as part of their regular duties, and
4. the city council, board of selectmen or board of aldermen approve the exemption of his interest from this section.

As airport manager, neither Mr. X nor Mr. Y would qualify for this exemption. Their leases are with the Airport Commission, which is also the employer of the airport manager. Failure to satisfy the first criterion of § 20(b) renders them ineligible for the exemption. No other exemption under § 20 is available to either FBO under the facts presented. The Commission concludes that the conflict law prohibits either Mr. X or Mr. Y from being appointed airport manager and simultaneously maintaining a lease with the Airport Commission.^[2]


End Of Decision

[1] Mr. X and , Mr. Y join in your request on behalf of the Airport Commission for an advisory opinion concerning the applicability of G.L. c. 268A provisions to them.

[2] Because § 20 prohibits the appointment of either to the position of airport manager, the Commission does not reach the conflict issues these facts raise under §§ 17,19 and 29 of Chapter 268A.