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Opinion

Opinion EC-COI-89-28

Date: 09/20/1989
Organization: State Ethics Commission

A municipal police officer is prohibited under §20 from maintaining his employment as a police officer and also serving as a city councillor. An exemption to section 20 for selectmen does not apply to city councilors.

Facts

You are a municipal police officer employed the ABC Police Department (Department), and also serve as president of an employee organization which represents non-supervisory police officers employed by the Department. You are contemplating seeking election to the city council (Council) of the same municipality.

Question

Does G.L. c. 268A permit you to serve on the Council while also maintaining your employment as a police officer in the same municipality?

Page 273

 

Answer

No.

Discussion

If you are elected to the Council, you will be considered a municipal employee for the purposes of G.L.c. 268A. In the Matter of Kenneth Strong, 1984 SEC 195; EC-COI-87-16; EC-COI-87-25; EC- COI-86-19. As a municipal employee, you will be subject to the restrictions of G.L. c. 268A, s.20, which prohibits you from having a financial interest, directly or indirectly, in a contract made by a municipal agency of the same municipality. By virtue of your compensated employment as a police officer, you have a financial interest in your employment contract with the Department. See, EC-COI-80-89 (municipal teacher has a financial interest in employment contract as teacher); In the Matter of Kenneth Strong, supra (maintenance worker for a housing authority has a financial interest in his employment contract with the authority). Cf. Quinn v. State Ethics Commission, 401 Mass. 210 (1987) (state bail commissioner has a financial interest in his contract with the judicial department). Accordingly, your maintaining compensated employment as a police officer in the Department while also serving as a member of the Council will place you in violation of G.L.c. 268A, s.20.[1]

Although there are exemptions to the prohibition in s.20, none is applicable to you. As a member of the Council, you would be statutorily ineligible for classification as a special municipal employee under G.L. c. 268A, s.1(n) and an exemption under s.20(d). Because you serve for more than five hundred hours annually as a police officer, the exemption under s.20(b) is not available. Finally, although s.20 was recently amended to permit housing authority employees to run for and hold elective municipal offices, the exemption does not extend to municipal agencies other than housing authorities St. 1987, c. 374.

The fact that you are prepared to abstain from participation as a member of the Council in Department matters, while consistent with G.L.c. 268A, s.19, does not suffice for s.20 purposes. Section 20 is preventative and is designed to avoid any perception that a municipal employee will enjoy undue influence or favoritism in the acquisition or maintenance of a municipal contract. EC-COI-85-66. If you believe that the statute is excessive or unfair as applied to you, your only recourse will be to seek a remedy with the General Court. We would note, however, that the General Court has thus far not extended any exemptions under s.20 allowing municipal police officers to hold elective city office.[2]

[1] An employee's financial interest in his or her own employment contract, standing alone, is not prohibited under s.20. see, Buss, The Massachusetts Conflict of Interest An Analysis, 45 B.U.L Rev. 299,372 377; EC-COI-87-19. The prohibition comes into play when, independent of the employment contract, an individual holds municipal employment under G.L.c. 268A.

[2] We see no conflict between G.L. c. 268A and the implementation of municipal collective bargaining laws. In our view, G.L. c. 268A was intended to apply to all contracts, whether written or oral, express or implied. We find nothing in G.L. c. 150E from which we can conclude that the General Court intended to exclude collective bargaining agreements from contracts subject to s.20.

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