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Opinion

Opinion EC-COI-91-9

Date: 04/18/1991
Organization: State Ethics Commission

A City Councillor is prohibited by section 20 from holding full-time municipal employment in the same City. A City Councillor cannot rely on the special municipal employee provisions of section 20. In addition, section 20(b) is not applicable to full-time municipal employment.

Facts

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You are a City Solicitor for a City (City). You have asked whether a City Councillor can simultaneously hold a full-time appointed position in the same city. Both the elected position of City Councillor and the appointed agency position are paid positions. The agency is separate from the City Council but the City Council does approve the agency's budget. The agency's appointing authority is a Commission appointed by the City's Mayor. The agency is within the City Department of XYZ.

Question

May a City Councillor be appointed to a full-time municipal position while continuing to serve on the City Council?

Answer

No.

Discussion

Section 20 of G.L. c. 268A, the conflict of interest law, prohibits a municipal employee from having a financial interest, directly or indirectly, in a contract made by a municipal agency of the same city or town, in which the city or town is an interested party, of which financial interest he has knowledge or reason to know, unless an exemption applies. 

A City Councillor would, therefore, be prohibited from being appointed to an additional full-time municipal compensated position, unless an exemption permitted the appointment. See, e.g., EC-COI-90-2; {Commission Advisory No. 7} (Multiple Office Holding at the Local Level). Section 20 provides a number of exemptions. However, none of the exemptions would permit the proposed appointment. For example, s.20(b) would permit a full-time municipal employee to be appointed to a second compensated municipal position, provided that the employee can meet certain specified criteria. Among the criteria are: 

(1) the employee must not be employed in an agency which regulates the activities of the contracting (that is, second) agency;  

(2) the employee cannot participate[1] in, or have official responsibility[2] for, any of the activities of the contracting agency; 

(3) the contract must be made after public notice or competitive bidding; and 

(4) the employee cannot be compensated for more than 500 hours in the second position during a calendar year.[3] 

In the present case, City Councillors appear to have either regulatory control over, or participate in, activities of the agency (directly or indirectly). Cf. EC-COI-83-77 (agency did not make any decisions affecting other agency); see also, EC-COI-83- 158 ("regulate" means to govern or direct according to rule or bring under the control of constituted authority, to limit and prohibit to arrange in proper order, and to control that which already exists). We need not, however, decide that issue because, in any event, the proposed agency position would be full-time. The City Councillor would therefore not meet the 500 hour requirement of s.20(b). See, EC-  

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COI-89-28 ( full-time police officer cannot also hold City Council position without violating s.20); EC-COI-85-66. No other exemption in s.20 would appear to be available to the City Councillor.[4] 

Accordingly, the City Councillor may not be appointed to the proposed full-time municipal position.

The Commission expresses no opinion as to whether any such appointments are permitted or prohibited by any other general law or City Charter provision.

[1] "Participate," participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j).

[2] "Official responsibility," the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L. c. 268A, s.1(i).

[3] There are, in addition, several other criteria in s.20(b) not listed here.

[4] We note, for example, that a City Councillor is not eligible for "special municipal employee" status. See, EC-COI-89-28; M.G.L. c. 268A, s.1(n) (criteria for becoming a "special.")

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