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As a member of a municipal board of health, even if you are unpaid and serve solely in an advisory capacity, you are considered a municipal employee and are covered by the conflict of interest law, G.L. c. 268A. The purpose of the law is ensure that your private interests and relationships do not conflict with your responsibilities as a public official.
The law generally prohibits you from taking any official action on matters which would foreseeably affect your own financial interests, or the financial interests of: your immediate family members 1/; partners; employers other than your municipality; those with whom you are negotiating or have an arrangement concerning prospective employment; or organizations for which you serve as an officer, director, partner or trustee. 2/ If one of these matters comes up for consideration at a board of health meeting, you must recuse yourself from any action on the matter, and make sure that the minutes of the meeting reflect your recusal. We recommend that you leave the room during both the deliberation and the vote on the matter.
The prohibition on acting in these matters is very broad. You may not participate as a board of health member in any way: you may not vote on such matters; you may not participate in, moderate or chair discussions about them; you may not delegate them to a subordinate; you may not prepare analyses or other documentation concerning them; and you may not take any other type of official action regarding them.
For example, if a member of your immediate family works as health agent, you may not participate in the board's consideration of an increase in salary for that position. You may not join in the board's discussions or actions regarding the inspection of a facility owned by your private employer. If you are an officer of a charitable organization, you may not recommend to other board of health members that the organization should be granted a permit or license.
Note that there are some special cases, including:
The law prohibits you from taking any type of official action that could create an appearance of impropriety, or acting in a manner which could cause an impartial observer to believe that your actions are tainted with bias or favoritism. Before taking any type of action which could appear to be biased, you must first make a full, written disclosure of all the relevant facts: if you were elected to the board of health, this disclosure should be filed with your City or Town Clerk; if you were appointed to the position, you must file this disclosure with your appointing authority. We also recommend that you make the disclosure public at the board meeting where the issue arises, and see that the minutes of the meeting reflect your disclosure. Instances where you should file such a disclosure include: actions affecting the financial interests of a relative who is not an immediate family member; and actions involving a friend, neighbor, business associate, past employer, or anyone with whom you have a significant personal or professional relationship. If you are in doubt as to whether there is an "appearance problem", the safest approach is to make the disclosure.
Acting as Agent: The law generally prohibits you from acting as agent or representative for anyone other than your municipality in connection with any matter of direct and substantial interest to your municipality. For instance:
you may not contact a municipal agency on behalf of a private individual, company, not-for-profit organization, group, association, or other special interest.
Private Compensation: Section 17 also prohibits you from receiving pay or other compensation from anyone other than your city or town in connection with any matter (such as "Title V" inspections) that involves your municipality. 4/
Exemptions to Section 17: There are some exemptions to these general prohibitions. For instance:
For information about other exemptions to §17, see State Ethics Commission Advisory No. 13 , Part A: Municipal Employees Acting as Agent .
Restrictions on Business Partners: Your business partners are generally subject to the same restrictions on private employment that you are.
Restrictions After you leave Government Service: You may never be paid by anyone but your municipality in connection with a particular matter in which you participated as a public official. For example, you could not be paid as a consultant to help a local company correct the code violations you noted in a health inspection.
Also, there is a one-year "cooling off" period before you may personally appear before, or telephone or write to, a municipal agency in connection with a matter that was under your official responsibility, even if you did not participate in it.
For more information on these restrictions, see State Ethics Commission Advisory No. 14: Negotiation for Prospective Employment and Summary of the Conflict of Interest Law for Former Municipal Employees.
The law generally prohibits you from holding more than one position with the same municipality. However, there are many exemptions in this section of the law. You may hold as many uncompensated positions as you wish, so long as all of the positions you hold are unpaid. You also may hold multiple elected positions, so long as all of the positions you hold are elected. For information about other exemptions, request Advisory No. 7: Multiple Office Holding, from the State Ethics Commission.
You are generally prohibited from having a direct or indirect financial interest in a contract with your municipality. However, there are many exemptions in this section of the law. For instance:
For information about other exemptions, contact your Town Counsel, City Solicitor or the Legal Division of the State Ethics Commission.
The law prohibits you from using your official position to obtain any type of "unwarranted privilege" for yourself or anyone else. For example: you may not use official resources (e.g., official cars, office equipment, stationery, the municipal seal) for personal or political purposes. You may not use your official position to get any type of preferential treatment for yourself or anyone else. You may not use your official title to endorse products, companies or activities.
The law prohibits you from publicly revealing confidential information, and from using it for private or political purposes. Anything that is not a "public record" under the Massachusetts Public Records Law is considered confidential.
You may not ever accept anything that is given to you with an "intent to influence" your official actions. Anything of any value may be considered a bribe if it is given to you in exchange for your agreeing to take some type of official action (or if you agree to not take an official action you would otherwise take).
You may not accept anything worth $50 or more if it is given to you because of something you did, or might do, as a municipal official. Examples of regulated gratuities include: sports tickets, costs of drinks and meals, travel expenses, conference fees, gifts of appreciation, entertainment expenses, free use of vacation homes and complimentary tickets to charitable events. Generally, if the gift-giver is someone you deal with in your municipal position, then the gift is being given to you because of your official duties, and you may not accept it if it is worth $50 or more.
Note that you may not accept multiple gifts from the same person or company if the total value of all the gifts is $50 or more. Also, you may not accept gifts worth a total of $50 or more from different sources sharing a "common interest". The law treats a standing offer (e.g., "I can get you Celtics tickets anytime you want them") as if it were a case of multiple gifts. You should refuse standing offers, since they may be considered to be worth $50 or more.
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Summaries are prepared and issued by the Public Education Division of the State Ethics Commission. They are intended to provide guidance to public officials and employees concerning practical applications of the conflict law. For more information about the law, please contact your Town Counsel or City Solicitor, or the Legal Division of the State Ethics Commission at (617) 371-9500.
ISSUED: October 1987
REVISED: March 1993
REVISED: July 1993
REVISED: May 1996
1/ Members of your "immediate family" include: your spouse; and the parents, siblings and children of both you and your spouse.
2/ Note that this prohibition applies both to for-profit and to charitable organizations.
3/ Your "appointing authority" is the person or board who appointed you to your position. Contact your Town Counsel or City Solicitor if you have any question about who your appointing authority is.
4/ However, your municipality may authorize "Title V" inspections to be performed by members of the board of health as part of the board members' official duties. If your city or town has accepted the provisions of G.L. c. 40, §22F, the municipality may charge fees for "Title V" inspections; this revenue may then, in turn, be used by the municipality to compensate board members for performing the inspections.
5/ Only part-time or unpaid positions may be designated as "special municipal employee" positions. This designation is granted by a vote of the Board of Selectmen, City Council or Board of Aldermen. Boards of Selectmen in towns of less than 10,000 population are automatically "special municipal employees". Mayors, Aldermen, and Selectmen in towns of more than 10,000 population may never be "special municipal employees".
6/ This provision is also known as Chapter 121 of the Acts and Resolves of 1988.