Opinion  EC-COI-89-2

Date: 01/19/1989
Organization: State Ethics Commission

A municipal employee may also serve as an elected member of an independent water district within the town, subject to certain conditions.  NOTE: This opinion is no longer valid.  Please contact the Commission's Legal Division for updated advice.

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You are a full-time employee for the Town (Town). You have also been elected to serve as one of the three commissioners of a Water District (District). The District was created as a body corporate and comprises an area within the Town, although not coextensive with the boundaries of the Town. The District was created to supply water for public safety and domestic purposes and to establish a water distribution system within the District area. The District is managed by a three-member elected board of commissioners who are authorized to act on behalf of the District. Following the recent approval by the voters of the District and the Town Meeting, the District has assumed from the Town the assets, liabilities, contract rights and leases which previously belonged to the Town Water Department. In turn, the District has reimbursed the Town for costs expended for the planning and development of a water supply and distribution system and for the creation of the District.


Does G.L. c. 268A permit you to serve both as a Town employee and as an elected commissioner of the District?


Yes, subject to the limitations described below.


As a member of the District, you are a municipal employee for the purposes of G.L. c. 268A. In the Matter of Norman McMann, 1988 SEC 379 (Decision and Order, October 24, 1988); EC-COI-87-2; 82- 25. Three sections of G.L. c. 268A are relevant to your question.

The first, G.L. c. 268A, s.19, places certain abstention requirements on you as a District member. Specifically, s.19 requires your abstention from participation as a District member in any "particular matter"[1] which affects the financial interest of a business organization which employs you. Because the Town is a municipal corporation and therefore a business organization for the purposes of G.L. c. 268A, see, EC-COI-80-111; Attorney General Conflict Opinion No. 613, you must abstain from participation in any contract, decision, controversy or other particular matter in which the Town has a financial interest.[2] Because the Town has a direct financial interest in any agreement implementing the transfer of the water distribution system to the District, you must comply with the abstention requirements of s.19 in connection with any such agreements. You must also abstain from participation as a District member in matters in which the Town has a foreseeable financial interest. EC-COI-84-96.

The abstention requirements of s.19 will apply to all acts of participation including your discussion of the merits of a particular matter with other District members, as well as your voting on the matters. Graham v. McGrail, 370 Mass. 133 (1976). While s.19(b)(1) provides an exemption procedure under which appointed municipal employees may receive permission from their appointing official to participate in a matter, the exemption is not available to you as an elected District official. District Attorney v. Grucci, 354 Mass. (1981).

Aside from s.19, you are also required to observe the limitations of G.L. c. 268A, s.23(b)(2). Under this section, you are prohibited from using your official District position to secure unwarranted privileges or exemptions of substantial value to the Town. Conversely, you may not use your official Town position to secure unwarranted privileges or exemptions of substantial value to the District. In particular, you must keep your Town work schedule separate from your District work schedule.

The law also places certain restrictions on your activities as Town employee. Under G.L. c. 268A, s.17, you may not be paid by the Town or act as the Town's agent in connection with any matter in which the District is a party or has a direct and substantial interest. To the extent that the implementation of the water system transfer to the District may require official dealings between your Town Office and the District, you may not perform such duties as a Town employees.[3]

[1] "Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, s.1(k).

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[2] The abstention requirement applies because of the Town's financial interest, rather than because of any particular financial interest which may apply to you or your immediate family.

[3] G.L.c. 268A, s.20 prohibits you, as a District member, from having a financial interest in an employment contract made by the same District. Based on the information you have provided, however, we conclude that your Town employment contract not with the District but, rather, is with a different municipal agency. In particular, we find that the enabling legislation created an independently managed and financed entity to provide water to certain Town residents. See, EC-COI-87-2.


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