| Date: | 11/14/1990 |
|---|---|
| Organization: | State Ethics Commission |
Member's of the Martha's Vineyard Land Bank are considered employees of an independent municipal agency for the purposes of G.L. c. 268A, and members of local advisory boards are municipal employees under G.L. c. 268A. The opinion addresses the limitations which G.L. c. 268A imposes on the official and private activities of these employees. NOTE: This opinion has been overturned in EC-COI-92-40.
You are the Executive Director of the Martha's Vineyard Land Bank Commission (Commission) and you ask whether the Commission is subject to G.L. c. 268A, and if so, how c. 268A applies to Land Bank Commissioners and Town Advisory Board members. The Land Bank was established by Chapter 736 of the Acts of 1985 "for the purpose of acquiring and holding and managing land and interest in the land." s.2. According to the enabling legislation, the Land Bank is a public instrumentality and the Land Bank's exercise of its statutory powers is deemed to be "the performance of an essential governmental function."
The Land Bank is administered by a seven member Commission composed of a member of each of the towns on Martha's Vineyard and the Secretary of Environmental Affairs (EOEA) or his designee. Each town elects one individual to the position of Land Bank Commissioner and no business may be conducted by the Commission unless a majority of the town Commissioners are present. s.3.
The Commission is assisted in administering the Land Bank by town advisory boards which have been established in each town of Martha's Vineyard. The town's conservation commission, planning board, board of assessors, board of health, park and recreation commission, board of selectmen and water commission each appoint a representative to the town's advisory board. s.1. The local boards may appoint a member of their own board or another citizen to serve on the advisory board. Under c. 736, each advisory board exercises advisory duties as well as binding veto powers over the Commission regarding land located in said town.
The Commission has the authority to, among other things, acquire interests in land, exercise eminent domain powers, accept gifts of funds to further the purposes of the Land Bank, incur debt, issue bonds and notes. If authorized by a two-thirds town meeting vote, the Commission may pledge the full faith and credit of each of the towns which comprise the Land Bank when incurring debt or securing an issue of bonds or notes. s.4. Each member town is authorized to appropriate money for the Land Bank fund and to provide funds to repay bonds or notes. s.s.4A, 4C. Each land acquisition by the Commission must be approved by the town advisory board in the town where the land is located, and any disposition of the Land Bank's interest or change in use of the land must also be approved by the advisory board of the town in which the land is located and by the Secretary of EOEA. s.s.4, 6.
The Commission is required to develop a management plan for managing each of its land holdings, and must use the open space and master plans of the individual towns and be guided by the particular town's advisory board's recommendations for the piece of property. s.3. The adoption of a management plan, and any change in the plan, must be approved by a two-thirds vote of the members of the advisory board for the town in which the land is located. s.3.
The Commission receives most of its funding from a 2% statutory fee on the purchase price of any real estate property transfer in each of the member's towns.[1] s.10. Other sources of funding include private contributions, funds appropriated or deposited by the County Commissioners or individual town meetings, or proceeds from the disposition of real property. The Commission's funds are maintained in an account within the Dukes County Treasury. The County Treasurer administers the account in accordance with the directions of the Commission. s.8. In essence, the Treasurer acts as the Commission's agent and does not have any policy making role visa-vis the funds. In addition to the Commission fund, the Treasurer maintains an individual account for each member town. Fifty percent of the revenues collected remain in the Commission fund and are directly administered by the Land Bank Commission. The remaining revenues are placed in the individual town accounts according to a proportional formula. A majority of the town advisory board must approve the expenditure of money in individual town accounts, but the accounts are administered for the benefit of the Land Bank Commission, and title to the funds remains with the Commission until such time as the Commission dissolves. s.s.8, 4, s.15.
Upon dissolution of the Land Bank, any of its land interests will be transferred to the town in which the land is located and placed under the management of the local conservation commission for continued protection. Any remaining funds will revert to the towns to be held in trust for the management and preservation of conservation land. s.15.
A threshold issue is whether the Commission is a public or private agency. In its determination of public status, the State Ethics Commission will consider:
1. the means by which the entity was created (e.g. legislative or administrative action);
2. whether the entity performs some essentially governmental function;
3. whether the entity receives and/or expends public funds; and
4. the extent of control and supervision exercised by government officials or agencies over the entity. EC-COI-89-1; 88-24; 88-19; 84-147.
No one factor is dispositive as the Commission considers the totality of the circumstances.
We conclude that c. 736 clearly manifests a legislative intent to create a public entity. The Commission was created by special legislation to perform "an essential governmental function." G.L. c. 736, s.2. The purpose of the Commission is to fund, acquire and manage property for conservation purposes on a regional basis, similar to obligations conferred on local conservation commissions. See, e.g., G.L. c. 132A, s.11 (towns may receive funds for conservation projects). Additionally, some of the Commission's funding is derived from public sources, such as the member towns and the county. The municipalities, through town advisory boards, possess veto power over most of the substantive Commission decisions, such as acquisition, management and use of any parcel of land located in the municipality. Accordingly, we conclude that the Commission is a public instrumentality for purposes of G.L. c. 268A.
We turn to the question of whether the Commission is a state, county or municipal entity. As one commentator has indicated, the focus of the analysis is on "the level of government to be served by the agency in question." Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. L. Rev. 299, 310 (1965).
When an agency possesses attributes of more than one level of government, the State Ethics Commission will review the interrelation of the agency with the different government levels in order to determine the agency's status under c. 268A. EC-COI-89-20; 83-157. For example, in EC-COI-83-157, we concluded that a county Mosquito Control project was an instrumentality of a state agency because state agencies exercised control and oversight of the project and the project's funding was derived from annual Legislative appropriation. In EC-COI-82-25, we concluded that a regional school district organized under G.L. c. 71 was an independent municipal agency under the conflict of interest law where the entity was supported solely by public funds and engaged by the member towns to provide a service mandated by G.L. c. 71. See, EC-COI-83-74 (local private industry councils are municipal agencies because of decision making role they share with local officials).
Arguably, the Land Bank Commission shares attributes of each governmental level.[2] We conclude that the Commission is an independent municipal entity similar to a regional school district. EC-COI-82-25. Our decision rests on the substantial control exercised by each town advisory board over the Commission's affairs. The level of government with the most direct and substantial interest in Commission decisions is the municipal level, as each municipality is concerned with the disposition of land within its borders. The town advisory boards are vested with veto power over most substantive decisions that the Commission makes. The Commission is accountable to the municipality if the full faith and credit of the municipality is pledged. If the Land Bank dissolves, any remaining funds or interest in land revert back to the individual towns, and the Commission must consider each municipality's master and open space plan as it develops a management plan. Finally, each municipality elects a member of the Commission to represent it. Based on these facts, we conclude that the Commission is an independent municipal agency for purposes of G.L. c. 268A.
Although the Commission is a separate independent regional municipal agency for purposes of c. 268A, we consider the town advisory boards to be local municipal agencies similar to any local municipal board, such as the board of selectmen, board of health, etc. Under the statutory scheme of c. 736, each town's advisory board has the responsibility to represent the local interest by exercising advisory, review and veto powers over Commission decisions pertaining to land in the particular town. c. 736, s.s.3, 4, 6, 8A. Further, the town advisory board is comprised of members of other local boards in the respective town, or their designees. Id. s.1.
For purposes of the conflict of interest law, Land Bank Commissioners, employees and town advisory board members are municipal employees. G.L. c. 268A, s.1(g). You have posed several questions regarding the application of the law to these individuals.[3]
1. May a Land Bank Commissioner or Town Advisory Board member participate in Land Bank decisions when the official is an abutter to the property at issue or when the subject property is owned by an Immediate family member?
A. Land Bank Commissioners
Generally, c. 268A, s.19 requires that a public official abstain from participation[4] in any particular matter[5] in which he, his immediate family[6] his business partner or the business organization in which he is serving as an officer, director, trustee, partner or employee has a financial interest. Decisions, determinations and recommendations pertaining to the purchase, use or disposition of a piece of land are particular matters for purposes of c. 268A. The definition of participation includes participation in the formulation of a matter for a vote, as well as voting on the particular matter. See, Graham v. McGrail, 370 Mass. 133 (1976).
Therefore, a Commissioner must abstain from official participation in a land decision if he or an immediate family member has a direct or reasonably foreseeable financial interest in the matter. EC-COI-84-96; 84-98; Public Enforcement Letters 88-1 and 91-1. Section 19 encompasses any financial interest without
regard to the size of said interest. However, the financial interest must be direct or reasonably foreseeable. See, EC-COI-86-25 (city councilor required to abstain from participating in school committee appointment as school committee reviewing specific provisions that may affect councilor's employer); 82-34 (financial interest in pending lawsuit that may include money damages). Financial interests which are remote, speculative or not sufficiently identifiable do not require disqualification under c. 268A. EC-COI-89-19; 84-98; 87-16.
Accordingly, a Commissioner must abstain in matters regarding an immediate family member's land because the family member has a direct financial interest in such decisions. Similarly, the Commissioner may not participate in matters pertaining to land which his property abuts: In a prior conflict of interest opinion, the State Ethics Commission found that a property abutter is presumed to have a financial interest in abutting property because one's property rights stand to be affected by the disposition of said property. EC-COI-84-96. Additionally, we presume a financial interest in matters affecting real property where a party is a party in interest as defined by G.L. c. 40 or where a party is a person aggrieved as defined by G.L. c. 131, s. 40. EC-COI-89-33. Therefore, if a Commissioner falls within any of these classes of individuals, he should also abstain from participation.
Section 19 contains an exemption for appointed officials, such as town advisory board members, that may permit participation in a particular matter, notwithstanding the general prohibition. This exemption, however, is not available to elected officials, such as Land Bank Commissioners, because elected officials do not have appointing authorities. Therefore, Land Bank Commissioners are required to abstain in all determinations in which they or immediate family members have a direct or reasonably foreseeable financial interest.
B. Town Advisory Board Members
Under s.19, town advisory board members must abstain in matters regarding an immediate family member's land and in matters where they are a property abutter, party in interest or person aggrieved as defined by the applicable statute. However, unlike Land Bank Commissioners, town advisory board members may be eligible for a s.19 exemption that allows participation in a particular matter, notwithstanding the general provision. Under s.19(b)(1), a municipal employee may participate if, prior to any participation, he advises his appointing official, in writing, of the nature and circumstances of the particular matter and makes full disclosure of his financial interest and receives in advance a written determination by the appointing official that his financial interest is not so substantial as to be deemed likely to effect the integrity of his services to the municipality. This determination may vary depending on the facts and circumstances of each matter. EC-COI-86-13.[7]
When a local official seeks a s.19 exemption from the board which appointed him to the town advisory board, additional conflict of interest issues will arise for that official as a local board member. Whether a local official may participate as a local board member in the decision how to resolve his conflict of interest problem will depend upon whether the town advisory board member is also a local elected official, appointed official or a private citizen. For example, if an elected selectman is also a town advisory board member, he must make a full disclosure to the board of selectmen regarding his family's financial interest in the property and the selectmen, in turn, must make a written determination whether the member may participate in the advisory board matter affecting his or his immediate family's financial interest. However, the selectman/advisory board member must abstain from participation in the selectmen's determination whether he may participate on the town advisory board because he will also have a financial interest in the selectman's determination. Therefore, local elected officials who also serve on the town advisory board should inform their respective board of their potential conflict of interest as a town advisory board member, and should abstain from the elected board's determination how to solve the conflict. If the town advisory board member is also a member of an appointed board, such as the conservation commission, he must notify his local board in writing and may participate in the local board's decision how to resolve the conflict of interest if he receives the permission of the authority which appointed him to the conservation commission. If he does not receive this determination, he may not participate as a conservation commissioner. If the town advisory board member does not hold other municipal office he must make full disclosure of his or his family's financial interest to his appointing authority and wait for a written determination from his appointing authority. Regardless of whether the local official may participate in the decision how to resolve the conflict problem, he may not participate as a town advisory board member in a matter affecting his or his family's financial interest if the appointing authority does not give written approval.
2. May a Land Bank Commissioner or Town Advisory Board member sell land or collect a real estate brokerage fee from the sale of land to the Land Bank Commission?
Generally, G.L. c. 268A, s.20 prohibits a municipal employee from having a financial interest, directly or indirectly, in a contract made by a municipal agency in which the municipality is an interested party. An agreement for the purchase, sale or disposition of a piece of property is a contract for s.20 purposes. EC-COI-84-51.
The next issue is whether a Land Bank Commissioner or a board member has a direct or indirect financial interest in the contract. A Commissioner or board member who enters a contract with the Commission has a direct financial interest in the agreement. EC-COI-84-51; 83-111. We conclude that members who are real estate brokers also have a financial interest in a purchase and sale contract between a property owner and the Land Bank Commission if they receive a brokerage fee based on the selling price.
The final question is whether the town or, in the case of Commissioners, the Land Bank Commission, is an interested party to the transaction. In the case of Land Bank Commissioners, the Commission is a party to the contract and Commissioners will be prohibited from entering a contract with the Commission or receiving brokerage fees from sales to the Commission. In the Matter of Norman McMann, 1988 SEC 379 EC-COI-83-111. Similarly, a town advisory board member is prohibited from selling land to the Commission or accepting a brokerage fee if the property is located in the town in which she sits on the Board. Her town will be an interested party to the transaction because it must approve or veto the sale. Although s.20 contains several exemptions, none are applicable to the above situations.[8]
Our decision would be different if the town advisory board members sold land to the Commission or accepted a brokerage fee for the sale of property not located in the town in which the advisory member served. Under these circumstances, the member's town would not be an interested party and would not be required to approve the transaction. In this situation, the advisory board member may sell land to the Commission but a Commissioner may not because the advisory board member would have a financial interest in a contract, not with their local town, but with an independent municipal agency, namely the Land Bank Commission. In comparison, a Commissioner may not sell land to the Commission because she would have a financial interest in a contract with her own agency, which would violate s.20.[9]
3. May a Town Advisory Board member also perform services as a real estate broker in the town in which he serves?
A. Town Advisory Board Members
Section 17 prohibits a municipal employee from receiving compensation from or acting as agent for anyone other than the town in relation to any particular matter in which the town is a party or has a direct and substantial interest. Generally, the town is not a party to nor has a direct and substantial interest in the private transfer of property within its borders. Under the circumstances you present, we do not find that the town, within the meaning of G.L. c. 268A, has a direct and substantial interest in property transfers under c. 736, even though a portion of the statutory fee under c. 736 is deposited in an individual town account. The town's interest is indirect and is not in connection with the sale contract. The town advisory board does not review real estate contracts or administer the fee collection process.
See, EC-COI-86-23 (no state interest in private transaction not requiring agency review or approval or place agency in position of being party in interest). Proceeds from the fee collection do not revert to the town treasury, but rather remain in the county treasury for the benefit of the Land Bank Commission. c. 736, s.8A. If a town withdraws from the Land Bank, monies in its town account will revert to the Land Bank Commission's account. c. 736, s. 15. The town will not receive title to funds in its individual town account until such time as the Land Bank Commission permanently dissolves. As the town does not have a direct and substantial interest in private real estate sales contracts, a real estate broker who is also an advisory board member may receive a brokerage fee from the private sale of property subject to c. 736.[10]
B. Land Bank Commissioners
Under s.17, Land Bank Commissioners may not receive compensation from anyone, other than the Land Bank Commission, in relation to a particular matter in which the Commission is a party or has a direct and substantial interest. We conclude that the Land Bank Commission has a direct and substantial interest in every real estate contract under c. 736 because the Land Bank Commission, unlike the individual town, directly receives 50% of the statutory fee imposed on real property transfers as calculated according to the purchase price of the property. The Land Bank Commission also retains title to the portion of the fee designated in the individual town accounts. The Land Bank Commission is required to review and certify the purchase price of each transfer subject to c. 736, and this certification is submitted to the Register of Deeds. Unlike an individual town, the Land Bank Commission is a direct party in interest to each real estate transfer and is vested with enforcement powers to protect its interests. c. 736, s.s.13, 14. Therefore, the Commissioner/real estate broker is prohibited under G.L. c. 268A, s.17 from receiving a brokerage fee from the sale of any Martha's Vineyard property that is subject to c. 736. In effect, a Land Bank Commissioner may not work as a real estate broker on Martha's Vineyard during his tenure as a Commissioner.
4. May a Land Bank Commissioner or a Town Advisory Board member who is also a local municipal employee participate in a Commission decision where the town is also competing for the piece of property?
A. Land Bank Commissioner/Local Municipal Employee
(1) As a Land Bank Commissioner
Pursuant to G.L. c. 268A, s.19, a Land Bank Commissioner must abstain in matters, such as a determination to purchase land, if a business organization in which he is serving as an officer, director, trustee, partner or employee has a reasonably foreseeable financial interest. In past precedent, we have considered a municipality to be a "business organization" for purposes of G.L. c. 268A, s.19. EC-COI-89-2; 81-153. For example, in EC-COI-81-153, a city employee who was also a member of a state authority was prohibited from participating as an authority member in particular matters, such as land agreements between the city and the authority, in which the city had a reasonably foreseeable financial interest.
Similarly a Land Bank Commissioner who is also a municipal employee may not participate in any matters affecting the financial interest of his town. For example, under s.19 a Land Bank Commissioner who is also a municipal employee must abstain in any decisions which affect his town's financial interest, such as decisions to purchase land in town, to allocate money to the town account or to dispose of land in town. Therefore, if his town has presented a competing bid for property, the Commissioner must abstain in Land Bank decisions regarding the property. There is no exemption available under s.19 because the Commissioner is an elected official.
Although a Commissioner/municipal employee must not participate, as a Commissioner, in a decision whether to compete with his town for a piece of property, he may step down from the Commission and publicly announce that he is representing the interests of his town and articulate his town's position before the Commission. Generally, G.L. c. 268A, s.17 would prohibit a Commissioner, otherwise than as required by law for the proper discharge of his official duties, from acting as an agent for anyone other than the Commission in connection with a particular matter in which the Commission is a party or has a direct and substantial interest. We conclude that, under c. 736, a Commissioner is acting as required by law for the proper discharge of his official duties. Chapter 736 permits Land Bank Commissioners to represent their towns' interests before the Commission because c. 736 provides that each town elect one Commissioner. As the Commission is comprised of a legal resident of each of the member towns, it appears that the intention of the statute is to provide for each town's representation on the Land Bank. Thus, a Commissioner is engaging in permissible constituency work when he advocates his town's interests before the Commission. See, {Commission Advisory No. 13}.
It may seem anomalous that a Land Bank Commissioner/municipal employee is required to abstain as a Commissioner in most Commission decisions pertaining to property in his town although he is elected to represent his town before the Land Bank Commission. However, c. 736, by its plain language, does not contemplate that Commissioners will also be local municipal employees nor does it reference any express exemption to G.L. c. 268A. The only requirement is that the Commissioner be a legal resident of the town. In certain other statutes, where board members' affiliation on boards and private affiliations inevitably will result in conflicts, the Legislature has included statutory language addressing the problem. See, e.g., G.L. c. 92, App. s.1-3(e) (MWRA board members who are also public employees may vote or act on behalf of town or MWRA on matters affecting the town); c. 15A, s.2 (members of the Board of Regents who are also affiliated with institutions of higher education may participate in matters involving institutions); EC-COI-87-39 (interpreting St. 1982, c. 560, s.3). Absent express statutory language in c. 736 permitting Commissioners who are municipal officials to participate in matters affecting their town's financial interest, we must assume that the Legislature intended c. 268A to apply in its entirety to Land Bank Commissioners. Accordingly, Commissioners who are also municipal employees may not participate as Commissioners in matters in which their town has a reasonably foreseeable financial interest.
(2) As a Municipal Employee
Chapter 268A also applies to Land Bank Commissioners in their official activities as local municipal officials. In past precedent, the State Ethics Commission has considered a regional district to be a "business organization" for purposes of G.L. c. 268A, s.19. EC-COI-82-25. Accordingly, a Land Bank Commissioner may not participate as a local official in a municipal decision affecting the Land Bank Commission's financial interest. For example, a local selectman who is also a Commissioner cannot participate as a selectman in a decision to sell town land to the Land. Bank because the Commission has a financial interest in the decision. As another example, members of boards of health or conservation commissions who are also Commissioners must abstain in health board or conservation decisions regarding permits sought by the Land Bank Commission. Appointed officials may be eligible for a s.19(b)(1) exemption but no exemption is available for elected officials.
You should also be aware that s.17 will limit the ability of local municipal employees who are also Commissioners to represent the Land Bank Commission before local boards. G.L. c. 268A, s.17. For example, a selectman may not represent the Land Bank Commission before the conservation commission regarding an Order of Conditions because the selectman would be acting as an agent for someone other than the municipality in connection with a matter in which the municipality is a party.[11] See, {Commission Advisory No. 13}; In the Matter of Richard Reynolds, 1989 SEC 423. B. Land Bank Commissioners who are not municipal employees in another capacity.
Land Bank Commissioners who do not hold other local office may participate as Commissioners in all Commission decisions affecting their town's financial interest because they are not employed by the town. These Commissioners will be required to abstain if a decision affects their financial interest, or the financial interest of their immediate family, partner, a business organization in which they are an officer, director, partner, trustee or employer. Just as a Commissioner/local municipal
official must abstain if his municipal employer's financial interest is affected, the Commissioner/private citizen must abstain if his private employer's financial interest is involved.
Land Bank Commissioners/private citizens may also represent their town's interests before the Commission and they may represent the Land Bank Commission before town boards because they do not serve in a local municipal capacity.
C. Town Advisory Board Members who are not Municipal Employees in Another Capacity.
Members of town advisory boards are municipal employees for purposes of G.L. c. 268A. As municipal employees, their loyalty is to the municipality they serve. A town advisory board member may participate in a decision to deny the Land Bank Commission's acquisition of property just as the zoning board of appeals may deny a special permit. Each board is performing the duty with which it is charged and s.19 is not implicated. Issues under s.19 would arise if a town advisory board member was also an employee of the Land Bank Commission. In that case, the member must abstain as his employer would have a financial interest in the matter.
Town advisory board members may not receive compensation from or act as agent or attorney for anyone other than the town in connection with a particular matter in which the town is a party or has a direct and substantial interest. Therefore, board members may not act on behalf of private parties or the Land Bank Commission before local boards. If town advisory board members serve on a part-time or uncompensated basis, the board may be designated special municipal employee status by the board of selectmen. G.L. c. 268A, s.1(n). Special municipal employees may receive compensation from or act on behalf of third parties in relation to particular matters in which they do not participate as municipal employees, for which they do not have official responsibility, or matters not pending in their
agency. G.L. c. 268A, s.17, para. 5.
D. Town Advisory Board Members/Municipal Employees
Sections 17 and 19 are applicable to town advisory board members who also hold another municipal position in town in the same manner as to board members who do not hold other municipal offices. However, issues arise under s.20 for municipal employees who hold dual positions in town.
Section 20 prohibits a municipal employee from having a financial interest, directly or indirectly, in a contract made by a municipal agency, in which the town is an interested party. For example, a town advisory board member who is also a paid employee in the park and recreation commission would violate s.20, unless she was eligible for an exemption, because she is a municipal employee as a board member who has a financial interest in a contract with her town, namely her employment arrangement. See, Advisory No. 7.
Section 20 contains many exemptions and town advisory board members who have s.20 issues should contact the SEC for further guidance regarding their particular situation. Of particular significance to Martha's Vineyard is an exemption permitting an employee in a town with a population of less than 3500 people to hold and be compensated for more than one appointed position in town provided that the board of selectmen approves the exemption from s.20. G.L. c. 268A, s.20, para, 15.
E. Town Advisory Board Member who is also a Land Bank Commissioner
A Land Bank Commissioner who is also a town advisory board member will be subject to the same restrictions as Land Bank Commissioners who are also municipal employees (see Section A above). In particular, such a Commissioner may not participate, as a Commissioner, in any matter in which his town has a reasonably foreseeable financial interest. No exemption is available under s.19 because he is an elected official.
Additionally, under s.19, he may not participate as a town advisory board member in any matter in which the Land Bank Commission has a financial interest because the Commission is a business organization in which he serves as a public official. Particular matters in which the Land Bank Commission will have a
financial interest include decisions to sell property, to purchase property, to incur debt, to use the town account, to improve property. As a practical matter, s.19 will impose substantial restrictions on a Commissioner/advisory board member's official actions and may essentially prohibit him from holding both offices because conflicts of interest will inevitably arise on a repeated basis. An exemption may be available to this individual as an advisory board member. In order to obtain this exemption, such an individual must advise the official responsible for his appointment to the advisory board of the nature and circumstances of the particular matter and make full disclosure of the Land Bank Commission's financial interest. The appointing official must consider whether the financial interest is not so substantial as
to be deemed likely to affect the integrity of the services the town may expect from the advisory board member and provide the member with a written determination. G.L. c. 268A, s.19(b)(1). It will be necessary for the appointing authority to make a separate written determination for each particular matter because the facts and circumstances may vary. Without a written determination, a Commissioner/ advisory board member may not participate, as an advisory board member, in decisions affecting the Commission's financial interest. See, In the Matter of Deidre Ling, Disposition Agreement (1990).[12]
5. May relatives of Commissioners and board members enter contracts with the Land Bank Commission?
Relatives of Commissioners or board members may enter contracts with the Commission provided that the Commissioner or board members do not participate in any decision that will affect an immediate family member's financial interest. If the relative is not an immediate family member, the Commissioner or board member may participate in personnel decisions affecting the relative if they file a public written disclosure with their appointing official, or at each town clerk's office if they are an elected official.
Chapter 268A defines immediate family as the employee and his spouse, and their parents, children, brothers and sisters. s.1(e). If the Land Bank Commission wants to hire an immediate family member, the Commissioner or board member must abstain from participation in any matters pertaining to hiring the family member, any involvement in reappointment, promotion, firing, determining the family member's salary, conducting job reviews, supervising the family member, and delegating the task of dealing with an immediate family member to a subordinate.[13] See {Commission Advisory No 11}; In the Matter of Peter J. Cassidy, 1988, SEC 371; EC-COI-83-11.
Additionally, board members or Commissioners who are also owners or partners in family businesses may not have any interest in a contract awarded to another family member in the business as this interest would violate s.20. The family business must take care to keep adequate records demonstrating that the advisory board member or Commissioner's financial benefits from the corporation are segregated from the proceeds of any Commission contract. See, EC-COI-84-13; 83-111; 83-125.
Finally, if the relative does not fall within the classification of immediate family member, s.23 will apply. Section 23 contains general standards of conduct applicable to all state, county and municipal employees. It provides, in pertinent part, that no employee may use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others. G.L. c. 268A, s.23(b)(2). Furthermore, s.23(b)(3) prohibits a state employee from engaging in conduct which gives a reasonable basis for the impression that any person or entity can improperly influence him or unduly enjoy his favor in the performance of his official duties.
An appearance of a conflict of interest or bias may be raised when a Commissioner or board member participates in a decision affecting a relative who is not an immediate family member because of the kinship relationship. The proper course for a Commissioner confronted with this situation is, prior to participating, to make a full written disclosure of the relationship and file it with each town clerk represented by the Commission. An advisory board member should file a full written disclosure with his appointing authority. These disclosures will become public records. Further, Land Bank Commissioners and advisory board members should make a verbal public disclosure for inclusion in the meeting minutes prior to any official participation or action. The public official should take care to evaluate the relative's proposal with the same objective standards as are used for all proposals.
Although this written disclosure will permit official participation under s.23(b)(3), it will not protect a Commissioner or board member from a s.23(b)(2) violation. Section 23(b)(2) is implicated if a Commissioner gives a relative an "inside track" on an unadvertised position or provides better benefits or schedules to a relative than to similar Land Bank Commission employees.
6. How does c. 268A apply to relationships other than family relationships?
The Legislature has delineated a series of relationships which would mandate abstention by public officials in their official dealings. As previously discussed, a municipal employee is required to abstain in any particular matter affecting his financial interest, or the financial interests of an immediate family member, a partner, an organization in which he is serving as an officer, director, trustee, partner or employee, or any person or organization with whom he is negotiating or has an arrangement for prospective employment. G.L. c. 268A, s.19. We have determined that s.19 does not apply to matters affecting personal or business relationships outside of the relationships listed within s.19. See, EC-COI-89-16 (friendship); 83-12 ( spouse of state employee's sister-in-law is not an immediate family member); 83-34 (occasional attorney services do not create an employee relationship); 89-12 (hospital overseer is not an officer, director, trustee or employee of the hospital).
Although s.19 is not applicable, G.L. c. 268A, s.23 is. As previously indicated, s.23 contains general standards of conduct applicable to all state, county and municipal employees. It provides, in pertinent part, that no employee may use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others. G.L. c. 268A, s.23(b)(2). Furthermore, s.23(b)(3) prohibits a state employee from engaging in conduct which gives a reasonable basis for the impression that any person or entity can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank or position of any party or person.
To dispel any appearance of bias, s.23(b)(3) requires that the public employee make a written disclosure of all the relevant facts concerning the relationship to the appointing authority or town clerk, if an elected official. See, In the Matter Of George Keverian (Disposition Agreement, April 23, 1990). This disclosure will become a public record and must be filed prior to participation in the matter. Additionally, municipal employees should make a verbal public disclosure for inclusion in the meeting minutes prior to any official participation or action.[14]
