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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 law. The law also regulates the activities of former employees and business partners of current and former employees.
The purpose of the conflict 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.
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 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:
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 law applies to specials.
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:
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.
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.
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.
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:
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 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.)
Section 23 provides a general code of ethics for all public employees.
The conflict 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.
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 law waived fees, discounts, gift certificates and entertainment are all considered gifts; if their value amounts to $50 or more, they are prohibited.
Section 2 of the conflict 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.
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.
This summary presents a brief overview of the conflict 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 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 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