How does the conflict of interest law apply to City Councilors?
City Councilors are municipal employees covered by the conflict of interest law (Chapter 268A of the general laws). All municipal employees, whether elected or appointed, full or part-time, paid or unpaid must abide by the restrictions of the conflict of interest law. The law also regulates the activities of former employees and business partners of current and former employees.
The purpose of the conflict of interest law is to ensure that your private interests and relationships do not conflict with your responsibilities as city councilors. The law is broadly written to prevent you from even becoming involved in a situation which could result in a conflict or give the appearance of a conflict.
"Special Municipal Employee" Designation
Some municipal employees may be designated as "special municipal employees" by the city council. City councilors may not be designated as specials.
Sections 17 and 20 of the law apply less restrictively to specials. All other sections of the conflict of interest law which affect municipal officials apply to special municipal officials in the same way.
An employee may be designated as a special on formal vote by your council at any time provided that the employee:
- is not paid; or
- holds a part-time position which allows him or her engage in other employment during normal working hours; or
- was not paid by the municipality for more than 800 hours during the preceding 365 days.
Typically, specials include members of boards and commissions serving part-time. All employees holding the same office or position must be treated equally, having the same classification as special municipal employee. For example, if one member of a school committee is classified as a special, all members should be so classified. Your council's vote must be specific, expressly naming the positions being designated. You may not vote a blanket designation for members of every board or commission in town to be named specials; votes should be taken individually for each board.
See the Commission's Fact Sheet, "Special Municipal Employees" for more information on how the conflict of interest law applies to specials.
Prohibited Actions Affecting Financial Interests (Section 19)
The law recognizes that your objectivity can be compromised when you act on matters in which you, or a family member or close business associate, have a financial stake. Therefore, the law prohibits you from participating in a particular matter in which you or any of the following have a financial interest:
- your immediate family (you, your spouse and both of your parents, children, brothers and sisters);
- your partner(s);
- a business organization in which you serve as an employee, officer, director, trustee or partner (including a non-profit organization); and
- any person or organization with whom you are negotiating or have any arrangement concerning prospective employment.
For example, as a councilor you should not participate in any discussions or vote on awarding a contract to your father's company nor should you act on competing applications. The best course of action is to leave the room during any discussions or votes concerning the matter.
- In a January, 1987 enforcement case, the Commission fined a Haverhill city councilor $500 for voting on a pay increase for her brother, the mayor.
- In an October 1983 enforcement case, the Commission found a Mansfield selectman in violation of this section of the law by participating in the approval of a contract between the town and his wife's employees' union.
A "particular matter" is defined by statute to include almost any proceeding, application, request for determination, contract, claim, finding, decision or controversy which might come before you. The definition refers to specific matters and proceedings rather than general issues. Section 19 does not apply if the particular matter involves a determination of general policy and your interest is shared with a substantial segment of the population of the city. For example, you could vote on raising or lowering local property tax rates, even if you are a homeowner, because your personal financial interest is shared with the majority of citizens in your city.
There is another exemption under section 19 available to non-elected municipal employees. Appointed municipal employees may act on a matter affecting their own, their family's or their business' financial interest only if they receive written permission from their appointing authority prior to taking any action. As a member of the city council (the appointing authority for many municipal employees) you may be called upon to make the determination that an employee's financial interest in a matter is not so substantial as to affect his or her integrity and impartiality.
Prohibited Municipal Contracts and Multiple Jobs (Section 20)
In general, section 20 prohibits a municipal employee from having a financial interest in a contract with the city or any municipal agency. This section prohibits you, as a councilor, from having a financial interest in any contract with your city.
- In March, 1984 the Commission found that a Marlboro councilor violated the law by buying a city-owned parcel of real estate. He also violated section 19 of the law by participating in the deliberations and votes concerning the sale to himself. He was fined $500.
Section 20 also generally restricts municipal employees to having one paid city position. You may, however, hold any number of other elected positions in addition to councilor and receive pay for all of them.
There are a number of exemptions to the general rule of section 20, which cannot adequately be explained in this summary of the law. Please be sure to ask the Ethics Commission or your city solicitor for advice concerning contracting or holding a second job with your city.
There is a specific provision for councilors which allows you to hold an appointed paid position in the city's housing authority while serving as councilor. You may work for a housing authority and also be elected councilor, provided:
- you were a housing authority employee before you became a councilor;
- you receive only one pay (You have the right to choose which
compensation you will receive.); and - as a councilor you do not vote on matters within the purview of the housing authority.
Restrictions After Hours (Section 17)
The law limits what you may do for someone other than the city you work for, in other words what you may do on the side. This section is designed to protect the councilor and the municipality from the problems resulting when people "serve two masters."
While you are a councilor, you may not act as agent or attorney for a private party before any city board, even if you are not paid. You also may not be compensated by anyone else in relation to any "particular matter" in which any agency of the same municipality is a party or has a direct and substantial interest.
For example, if you were a lawyer in private practice, being a councilor would preclude you from representing a client before any municipal agency or before a court if your city was a party to the lawsuit.
- The Commission found a Swampscott selectman in September 1982 in violation of this section by acting as the agent for a private party in connection with the sale of property which was the subject of foreclosure proceedings by his town. The selectman paid a $1,000 civil penalty for the violation.
The law also restricts the activities of business partners of current municipal employees. Your partner may not act as agent or attorney for anyone other than your city in connection with a particular matter in which you participate or which is subject to your official responsibility. For example, your business partner may not represent a restaurant owner in her application to the council for a liquor license. (This particular restriction is contained in Section 18.)
Misuse of Official Position (Section 23)
Section 23 provides a general code of ethics for all public employees.
The conflict of interest law prohibits you from using or attempting to use your official position to secure an unwarranted privilege for anyone or from giving a reasonable basis for the impression that you can be improperly influenced in the performance of your official duties. The law also prohibits you from disclosing confidential information obtained on the job and from accepting outside employment which will impair your independence of judgement in the exercise of your official duties.
- In 1983, the Commission found a selectman to have violated this section of the law by accepting golfing privileges at a local golf club extended to him because he was a selectman.
- In a 1982 case the Commission found Lowell's city manager to have violated Section 23 by asking a developer whose hotel project was under consideration by the city to make arrangements for his Florida vacation and by accepting "VIP" treatment and direct billing privileges from the developer's Florida hotel. The Commission found the city manager, by his actions, to have given the developer the impression that he could be improperly influenced.
Restrictions on Accepting Gifts (Section 3)
It is illegal to request or accept anything of "substantial value" from anyone with whom you have had or are likely to have official dealings (absent some family or social relationship which otherwise explains the gift) even if the motivation for the gift is to express gratitude for a job well done or to foster goodwill.
It is also illegal for a private party to offer or give anything of substantial value to a public official or employee if it is given "for or because of" some act the official has performed or will perform; this is true even if there is no corrupt intent on the part of either the giver or the receiver.
The courts and the Commission have deemed "substantial value" to be $50 or more, in most cases. Under the conflict of interest law waived fees, discounts, gift certificates and entertainment are all considered gifts; if their value amounts to $50 or more, they are prohibited.
- In February 1983, the Commission found a Stoneham selectman to have violated this section of the law by receiving financial assistance, in the form of loans and loan guarantees, from a developer whose site plans were subject to approval by the board of selectmen. The selectman paid a civil penalty of $1,000 and an additional $900 forfeiture of the economic advantage he gained as a result of the violation.
Bribes (Section 2)
Section 2 of the conflict of interest law prohibits the most obvious kind of corruption: bribes. The law imposes criminal penalties, not only on officials who seek or receive payoffs or kickbacks, but also on private parties who offer or pay them.
Restrictions After You Leave Government Service (Section 18)
Former councilors may not use their past friendships and associations within government or use confidential information obtained while serving the government to derive unfair advantages for themselves or others. The law does not prevent you from using general expertise developed while a councilor. Rather, it focuses on particular matters you worked on while serving on the council.
If you participated in a particular matter as a councilor you can never become involved in that same matter for a private party after you leave municipal service, except on behalf of your city. (This same restriction applies to your business partners for one year after you leave the council).
If you had official responsibility for a particular matter as councilor even if you did not actually participate in it, you may not appear before any municipal agency on behalf of a private party in connection with that matter, for one year after leaving the council.
For example, if you voted to award a company a contract to provide computer services for your city, you may not leave city government and work for the company on the same contract you voted on. You may, however, work for that company on other projects and you may also work for the company on town contracts proposed and awarded after you left the council.
Advisory Opinion
This summary presents a brief overview of the conflict of interest law and suggests activities which you, as a councilor must avoid. It is not a comprehensive review. You may call the Ethics Commission's Legal Division at 371-9500 for particular advice on the conflict of interest law, as well as seek an advisory opinion from your city solicitor. As of April 1986, the Commission regularly reviews city solicitor's opinions on the conflict of interest law.
If you have a question about your own activities, we urge you to request an opinion from your local counsel or directly from the Commission prior to engaging in the activity in question.
ISSUED: November 1987