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Opinion EC-COI-88-3

Date: 02/03/1988
Organization: State Ethics Commission

Section 20 prohibits a member of the Board of Selectmen from being appointed as the project manager on the Local Assessment Committee.


You are a member of a Town Board of Selectmen and are interested in applying for a full-time position as Project Manager for the Town Local Assessment Committee (LAC).  The Town LAC was organized by the Chairman of the Board of Selectmen, pursuant to the Hazardous Waste Facility Siting Act, St. 1986,c. 508 (Act).  The Act was intended to resolve local resistance to the proposed siting of hazardous waste facilities by creating a local assessment committee comprised of officials and residents of the host community.

Under G.L. c. 21D, a developer who proposes the construction of a solvent recovery facility must file a Notice of Intent with the State Hazardous Waste Facility Council (Council).  The Council may designate the proposal as "feasible and deserving of state assistance."  The LAC is thereafter empowered to negotiate with the facility sponsor the terms and conditions of a siting agreement to protect the local public health, the local public safety and environment, and promote the fiscal welfare of the local community through special benefits or compensation.  The exclusive authority to negotiate rests with the LAC. The LAC in a municipality may request technical assistance from the Council for review of a proposal, but this does not detract from the LAC's authority to negotiate.  No facility may be established without a siting agreement between the sponsor and the LAC.  The siting agreement is a non-assignable contract binding the sponsor and the community, enforceable against the parties in court.  The Council is not a party to the agreement. If, despite the technical or financial assistance of the Council, there is an impasse between  the LAC and the facility sponsor in negotiating a siting agreement, the Council may utilize binding arbitration to resolve the impasse.

The thirteen member Town LAC, organized following the filing of a Notice of Intent, is comprised of the chairmen of the Town Board of Selectmen, Board of Health, Conservation Commission, and Planning Board, and the Fire Chief. Of the remaining eight members, six are Town residents; the Board of Selectmen has also approved the appointment of two residents from neighboring communities to fill the two remaining seats.1/  Funding for the LAC expenses has originated with the Council and has been paid through the Town account authorization process.


Are you currently eligible for appointment as Town LAC Project Manager?


You are ineligible for appointment while you serve as a member of the Board of Selectmen and for six months thereafter.


As a member of the Town Board of Selectmen, you are subject to a six-month waiting period following the completion of your Selectman duties before you are eligible for appointment to a paid position in a municipal agency of the Town, G.L. c. 268A, §20ECCOI-87-3582- 10783-1.  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.  The six-month waiting period applies only to additional positions in the same municipality, and does not limit the eligibility of a selectman for appointment to a position with the commonwealth, a county, another municipality, or a regional municipal agency.

Based on the information you have provided, we conclude that the Town LAC is a municipal agency of the Town and that you are therefore subject to a six-month waiting period prior to eligibility for appointment to a Town LAC position.

In ECFD-87-1, we reviewed  the status of the Town LAC in the context of the state financial disclosure law, G.L. c. 2688.  We concluded that the LAC was not a "governmental body" within the meaning of G.L. c.2688, §1(h) because the membership, control and objectives of the LAC were entirely local.  We observed, however, that LAC members are covered by the provisions of G.L. c. 268A applicable to municipal employees.  Our conclusion that the Town LAC is a municipal agency of the Town is supported by the fact that (1) G.L. c. 21D requires the LAC to represent the interests of the host community, in this case, the Town of Town, in connection with the proposed facility siting in the Town; (2) the LAC is controlled by elected and appointed representatives of the Town; and (3) the LAC's expenses are paid through the Town.

We do not find sufficient vestiges of shared control and responsibility with neighboring communities so as to conclude that the LAC is an independent regional municipal agency.  Compare, EC-COI-82-25 (statutorily created regional school district under which communities share costs and responsibilities is an independent municipal agency).  The appointment by the Town Board of Selectmen of two residents of abutting communities was not mandated by G.L. c.21D and appears to have been made as a courtesy to the neighboring communities rather than pursuant to a statutory requirement to share responsibility with other communities.  Moreover, G.L. c. 21D, 14 establishes a procedure through the Council under which abutting communities may seek compensation from the developer for any demonstrably adverse impacts imposed by the siting.  The availability of this statutory avenue to protect the interests of abutting communities suggests that the Town LAC is not intended to represent the broad interests of the affected region but rather the interests of the Town.  Because the Town LAC is a municipal agency of the Town, you are therefore subject to a six-month waiting period under G.L. c. 268A, §20.

1/  Chapter 21D, §5 provides that the LAC "... shall be comprised of (1) the "chief executive officer, who shall serve as its chairman; (2) the chairman of the local board of health or his designee; (3) the chairman of the local conservation commission or his designee; (4) the chairman of the local planning board or his designee; (5) the chief of the fire department or his designee; (6) four residents of said city or town appointed by a majority vote of the aforementioned city or town officials, three of whom shall be residents of the area of the city or town most immediately affected by the proposed facility, and (7) not more than four members nominated  by the chief executive officer and approved by a majority vote of the city council, board of aldermen, or board of selectmen of said city or town.  Alternate members shall serve on said committee in the absence  of members appointed in accordance with clauses (6) and (7) who, in each instance, shall be appointed in the same manner as those members appointed pursuant to said clauses (6) and (7).  Said four members nominated by the chief executive officer may include representatives of abutting  communities; each representative of an abutting community shall be approved by a majority vote of the city council, board of aldermen or board of selectmen of said abutting community."


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