Opinion  EC-COI-87-35

Date:	09/16/1987
Organization:	State Ethics Commission

Section 20 disqualifies a selectman from eligibility for a compensated position in the same town until six months after the selectman resigns.

Facts

You are the town counsel for a Town (Town). You seek formal guidance from the Commission in construing G.L. c. 268A, s.20, s.21A and sections of the recently enacted town charter.[1] Under the terms of the charter, a full-time town administrator will be appointed. During the interim period, the charter authorizes the Board of Selectmen (Board) to either act as the town administrator or to appoint a temporary town administrator. Under the charter, the Board may designate "a town employee, other person, or a member of the Board of Selectmen to exercise the rights and perform the duties of the Town Administrator during any vacancy caused by the temporary absence of the Town Administrator."

The Board has unanimously voted to appoint ABC, a Board member, as the temporary Town Administrator, and ABC has received compensation in the temporary position. In response to a request for an advisory opinion pursuant to G.L. c. 268A, s.22, you advised ABC that approval by the town voters of the provisions of the town charter exempted him from the 30-day waiting period of G.L. c. 268A, s.21A [2] and from the outright prohibition on selectmen accepting other municipal positions contained in G.L. c. 268A, s.20.[3]

Questions

1. Does G.L. c. 268A, s.20 permit ABC to be appointed and compensated as the temporary town administrator?

2. Does the Town's purported compliance with G.L. c. 268A, s.21A or the charter provisions relating to interim appointments result in ABC's exemption from the prohibition of s.20?

Page 174

Answers

1.  No.

2.  No.

Discussion

The plain language of G.L. c. 268A, s.20 prohibits a selectman from being "eligible for appointment to any such additional position while he is still a member of the board of selectmen or for six months thereafter." The General Court adopted this restriction in response to its concern that selectmen would or could acquire additional municipal positions by virtue of their incumbency. See, EC-COI-82-107. "The enactment of the six-month waiting period therefore reflects the legislature's view that the period is desirable in light of the authority and visibility which accompanies the office of selectmen. EC-COI-83-1.

The Commission has consistently applied this language to prohibit a selectman from acquiring a second compensated position in the same municipal government until a six-month waiting period has elapsed following his service as a selectman. See, EC-COI-87-12; 83-1; 82-107.[4]

We conclude that the plain language of s.20 also applies to ABC, inasmuch as he has been appointed to a compensated position while a member of the Board of Selectmen. He can comply with s.20 by refraining from receiving compensation as temporary town administrator, thereby divesting his financial interest in a contract made by the town. He would not comply with s.20 solely by declining compensation as a selectman, because he would retain his impermissible financial interest in his town administrator contract. He would, in effect, be benefiting financially from his incumbency.

Even assuming that ABC's temporary appointment could be regarded as having been approved by an annual town meeting within the meaning of s.21A, compliance with s.21A does not supersede the restrictions of s.20 applicable to selectmen. In EC-COI-83-1, we expressly held that the selectman provisions of the later statute, s.20, prevailed over the earlier, less restrictive provisions of s.21A. We see no reason either as a matter of law or policy to alter this conclusion. In particular, we cannot infer that the General Court intended to permit an annual town meeting to override the express prohibitions of s.20.

With respect to the Town's compliance with the temporary appointment provisions of the charter, we see no conflict between the express terms of the charter and G.L. c. 268A, s.20. The charter authorizes the appointment of a selectman as acting town administrator but does not, by its terms, authorize the appointee to receive compensation in carrying out the temporary duties. Absent receipt of compensation for additional duties, a selectman does not violate s.20. We decline to assume a conflict where none exists between the terms of G.L. c. 268A and the charter. Should such a conflict arise, however, absent a clearly stated intent by the General Court, we will regard the plain language of G.L. c.
268A, s.20 as prevailing over the conflicting charter.[5]

[1] Prior to the adoption of the charter, the Attorney General determined that the charter was "not inconsistent with the constitution and laws enacted in pursuance thereto." You do not contend, nor do we conclude the Attorney General's review to constitute a determination regarding the application of G.L. c. 268A to the appointment of a temporary town administrator.

[2] G.L.c. 268A, s.21A provides that, absent town meeting approval or completion of a 30-day waiting period following completion of services, "no member of a municipal... board shall be eligible for appointment.,. by the members of such . . . board to any office or position under the supervision of such... board."

G.L.c. 268A, s.20, in relevant part, provides that no "selectman shall be eligible for appointment to any such additional position while he is still a member of the board of selectmen or for six months thereafter."

[3] Pursuant to 950 CMR 1.03, the Commission's Executive Director reviewed your advisory opinion and advised you on August 9, 1987 that the Commission staff did not concur with your conclusion or reasoning. You have recently requested that the full Commission review your advisory opinion.

[4] The only exception to this rule, applicable to individuals who serve as selectmen in small towns and have been classified as special municipal employees, is not relevant here. See, EC COI-82-106; 87-96.

[5] This advisory opinion is prospective and does not address the propriety of conduct which has already occurred In particular, the question of whether ABC improperly participated in an appointment as temporary town administrator cannot be addressed in the context of an advisory opinion.