| Date: | 11/17/1999 |
|---|---|
| Organization: | State Ethics Commission |
A Review Board member who is a special municipal employee is prohibited from working privately in connection with landscape plans he reviewed or which were reviewed by the Review Board, even if the member had no expectation that he would do the work at the time he reviewed the plan or it was pending before the board.
As Counsel to a town in Massachusetts ("Town 11) you have requested an advisory opinion on behalf of members of the Review Board ("RB"). The Town established the RB "in recognition of the fact that beautiful communities can be created only through a deliberate search for beauty on the part of the community leadership, architects, engineers, planners, realtors and the building industry, backed by an appreciation of the visual world by the people." Town By-Law.
The RB consists of five members, appointed by the Board of Selectmen for three year terms, one of whom must be a registered architect and one of whom must be a registered engineer or registered land surveyor. Id.
According to Town By-Laws, the Planning Board ("Planning Board"), the Zoning Board of Appeals ("ZBA") and/or the Building Commissioner ("Building Commissioner") are required to forward all landscape plans for buildings in Business, Industrial or Multifamily Dwelling Zones to the RB. The RB must review the landscape plans and make recommendations to the appropriate board within 14 days. The Planning Board and the ZBA have discretion to incorporate RB recommendations as conditions for approval. Id.
Town By-Laws require the RB to evaluate landscape plans in relation to existing and proposed landscape and buildings. The Town Manual ("Manual")[1/] requires the RB to evaluate landscape plans (proposed trees, plants, paving, benches, fencing, screening, lights, fountains, terracing, signs, stones, planters, parking areas and foundation treatment) in light of the following factors: conformity with Town By-Laws governing site development set backs, screening, parking, and buffer zones; conjunction with contiguous adjacent property, street rights-of-way, and existing or proposed buildings; visual harmony with the surroundings; environmental impact; enhancement of the character, value and attractiveness of the surroundings through design, scale and location; character of the existing landscape to be preserved; and, preservation of existing stands of trees.
In practice, and based on the Manual, the RB operates as follows: an applicant who applies to the Building Commissioner for a building permit ("permit") in a business, industrial or multifamily dwelling zone is instructed to provide two copies of a landscape plan ("plan") to the RB; the RB evaluates the plan in accordance with the factors listed above and meets with the applicant to reach agreement on modifications the RB recommends; once agreement is reached, the RB and the applicant sign two plans; the RB maintains one copy and forwards the other to the Building Commissioner; the RB approves the issuance of the permit; the RB Chairman signs the Building Permit Application Sign-On Sheet[2/] ("Sign-On Sheet"); when the work is completed, the RB (or a majority of the RB) does a site inspection, followed by the RB Chairman's signing the Building Commissioner's Sign-Off Sheet ("Sign-Off Sheet")[3/]
1. May an RB member be compensated by a private client for landscape work implementing a plan the RB member reviewed if, at the time of the review, the RB member had no foreseeable expectation of performing such work?
2. May an RB member who does not participate in a review of the plan or inspection of the work be compensated by a private client for landscape work done pursuant to the plan?
RB members are individuals performing services for a municipal agency,[4/] and, as such, are considered municipal employees subject to the conflict of interest law.[5/] G.L. c. 268A, s. l(g). Town records show that RB members have been classified as special municipal employee[6/] As municipal employees, RB members are subject to s. 17 of the conflict of interest statute.[7/] Section 17(a) provides that no municipal employee shall, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receive or request compensation[8/] from anyone other than the city or town or municipal agency in relation to any particular matter[9/] in which the same city or town is a party or has a direct and substantial interest. This section, which is designed to prohibit divided loyalties, applies when a public employee, who is expected to demonstrate undivided loyalty to the public interest, represents the interests of an "outsider" in a matter to which the public is a party or has a direct and substantial interest. See W.G. Buss, The Massachusetts Conflict-Of-Interest Statute: An Analysis,
Page 740
45 B.U. Law Rev. 299,322 (1965).
The prohibitions of s. 17 are less restrictive in the case of a special municipal employee, such as an RB member. A special municipal employee may receive compensation from anyone other than his municipality in connection with a particular matter in which the municipality is a party or has a direct and substantial interest, provided that the particular matter is not one (a) in which he has at any time participated as a municipal employee, or (b) which is or within one year has been a subject of his official responsibility, or (c) which is pending in the municipal agency in which he is serving.[10/]
The first question is whether an RB member may be compensated for private work implementing a plan he reviewed, assuming he had no foreseeable expectation of performing such work at the time of the review.[11/] The answer turns on whether such compensation is in relation to a particular matter of direct and substantial interest to the Town and in which the RB member participated.
First, if the RB member reviews the plan and makes recommendations for modifications, we find that such action constitutes personal and substantial participation. See EC-COI-92-3 ("if one discusses. or makes recommendations on the merits of a matter one will be deemed to have participated personally and substantially in a matter"); see also, EC-COI-89-2 (discussion of the merits of a particular matter). Next, the RB's review of the plan is a particular matter of direct and substantial interest to the Town, because Town By-Laws require an applicant to submit a plan to the RB for review and the Manual requires the RB's approval prior to the issuance of a permit. See EC-COI-87-31 (where the Commission concluded that an application for a building permit, the decision to issue the permit, and the permit itself are all "particular matters" to which the town is a party or in which the town has a direct and substantial interest). Thus, if an RB member is later compensated to implement the plan, such compensation would be in relation to his earlier review of the plan, a particular matter in which he participated. We conclude that s. 17(a)prohibits the receipt of such compensation.[12/]
The second question is whether an RB member may be compensated by a private client for work the RB inspects if the RB member did not review the plan and will not inspect the work. Since RB members are special municipal employees, the narrow question is whether the RB member would be compensated in relation to subjects within his official responsibility. The statute defines "official responsibility" as "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 (0.
In determining what constitutes a public employee's official responsibility, the Commission has cited the interpretation of federal law on which G.L. c. 268A was modeled, which provides that "the scope of an employee's official responsibility is determined by those areas assigned by statute, regulation, . . job description or delegation of authority." 5 CFR s. 263 7.202(b)(2); Title 18 U.S.C. s. 202(b). See Buss, supra, at 321; EC-COI-99-2. We therefore look to the sources of RLRB authority and the scope of that authority.
The primary source of RB members' official responsibility springs from Town By-Laws which require the Planning Board, the ZBA and the Building Commissioner to forward landscape plans to the RB for review and recommendations and require the RB to report back to the appropriate board. Town By-Laws also delegate to the RB the task of evaluating landscape plans.
The secondary source of RB members' official responsibility comes from the Manual, which assigns to the RB a shared responsibility for community planning.[13/]
The Manual also provides the equivalent of a job description, instructing RB members on specific criteria to apply in evaluating plans, such as "[c]onformity with the Town By-Laws governing site development set-backs, screening, parking and buffer zones," "conjunction with contiguous adjacent property, street rights-of-way, and existing or proposed buildings," and "environmental impact." Finally, the Manual delineates the process by which RB members exercise their authority through meeting with the applicant, maintaining a copy of approved plans, signing the Sign-On Sheet of the Building Commissioner, and performing a site inspection when the work is completed.
Official responsibility attaches as soon as the RB receives an applicant's plan, since RB members may then exercise their authority to evaluate the plan. See Buss, supra, at 337 ("consistent with the meaning of the concept, [ ] official responsibility should attach at precisely that point of time when the official's authority would become exercisable with respect to the application in any degree or respect"). The RB's evaluation of the plan, approval of the issuance of a building permit, and inspection of the completed work are all particular matters which remain subjects of RB members' official responsibility until the inspection is conducted and the RB Chair man signs the Sign-Off Sheet. [14/] EC-COI-88-9 ("A town always retains jurisdiction to determine that work is in accordance with the specifications stated on the application for a building permit"). As a fundamental matter, an RB member can not absolve himself of official responsibility by not participating in a particular matter but only by, "in effect, resign[ing] from his position." Buss, supra, at 320-321. See, e.g., EC-COI-81-14 (member of area board had official responsibility over any particular matter before the board whether or not he participated in the matter as an area board member); Public Enforcement Letter 96-1 (special permit site plan review was a subject of zoning board of appeals member's
Page 741
official responsibility even though he abstained from participating in the matter as a ZBA member).
In sum, if an RB member receives compensation to implement a plan, such compensation would be in relation to particular matters which are (or within one year have been)[15/] subjects of his official responsibility. See EC-COI-88-9 (s. 17 prohibits part-time town building inspector, even if a special municipal employee, from receiving compensation for carpentry services which require an application for a building perm it or subsequent inspection or approval by the town, since he has official responsibility for enforcement and administration of the building code and permits issued pursuant to the code); EC-COI-83-17 (member of Board of Underwater Archaeological Resources prohibited from receiving compensation in connection with excavation from the holder of a permit granted by the Board, since the application for a permit, the decision to grant the permit, and decisions regarding oversight of the operation all are particular matters within the Board member's official responsibility). We conclude that s. 17 (a) prohibits the receipt of such compensation because the RB has official responsibility - the direct administrative and operating authority for evaluating and approving all landscape plans in business, industrial and multifamily dwelling zones, and for inspecting the completed work implementing those plans.
