Municipal Officials Appearing Before Town Boards- Conflict of Interest Law Primer

The information provided is educational in nature and should not be considered legal advice. Persons with questions about a specific situation should contact the Ethics Commission at [phone] for free confidential advice.

Massachusetts General Laws c. 268A, the state's conflict of interest law, governs the conduct of public officials. In general, § 17 of the conflict law prohibits a public official from acting as an agent for anyone other than the municipality for which he or she serves in connection with any matter in which the municipality is a party or has a direct and substantial interest even if the public official abstains from taking any official action on this matter. It also prohibits a public official from requesting or receiving compensation in relation to any particular matter in which the same municipality is a party or has a direct and substantial interest. These provisions are intended to prevent divided loyalties.

As discussed below, § 17 applies less restrictively to special municipal employees.

What activities are considered "acting as agent"?

An agent is anyone who represents another person or organization in dealings with the municipality. Almost any instance where you are acting on behalf of someone else can be considered "acting as an agent." For example, contacting or communicating with the municipality on another person's or group's behalf, acting as a liaison with the municipality on another person's or group's behalf; providing documents to the municipality on another person's or group's behalf: or serving as a spokesperson before the municipality on another person's or group's behalf have been considered "acting as an agent."

When a municipal employee speaks or acts on behalf of herself, she is not considered ‘acting as an agent.’  Therefore, a municipal employee is not restricted from representing her own individual, private interests as a taxpayer, citizen or homeowner, in matters before the same municipality in which she serves.

When does a municipality have a direct and substantial interest in a matter?

A municipality has a direct and substantial interest in

• any matter pending before, under the official jurisdiction of, or involving action by a municipal agency, board, commission, authority or other body;
   
• any effort to change municipal regulations, policies or procedures;
   
• any contract, court case or other legal matter in which the city or town is a party, or
   
• any ruling or other action by a federal, county, regional or state agency involving matters which are subject to regulation by the municipality.

Can a volunteer board member appear before the board on which he or she serves on behalf of private clients?

A municipal employee, even one who serves as an unpaid volunteer on an appointed board, is prohibited from acting as an agent for private clients before the board on which he or she serves. For example, a Historic Commission member who is an architect may not represent a private client before the Historic Commission.

A municipal employee always may, however, represent him or herself before his or her own board. For example, a conservation commissioner may seek an order of conditions in order to expand her home. She may not, however, participate as a conservation commissioner in any determination or decision regarding her property, unless she is able to get an exemption.

Can a volunteer board member appear before boards, in the same town in which he serves, other than the one on which he serves?

If the board member is designated a "special municipal employee," he may act as an agent before municipal boards other than his own, provided that he has not officially participated in the matter and the matter is not now (and was not within the past year) within his official responsibility. He never may represent any third party before his own board or any board that falls under the jurisdiction of his own board. For example, a school committee member who is designated as a "special municipal employee" may appear on behalf of a client of his private law practice before the board of health. He may not appear, however, before the school committee or the school department regarding a matter involving a client.

A board member whose position has not been designated "special" may not appear before any boards in the same municipality in which he serves.

What is a "special municipal employee"?

Several specific municipal positions are automatically designated as "special municipal employees" under the law. In other instances, the status of "special municipal employee" can be assigned to certain municipal positions by a vote of the board of selectmen, board of aldermen, town council or city council. Your position is eligible to be designated as a "special municipal employee" provided that:

1. you are not paid; or
    
2. you hold a part-time position which allows you to work at another job during normal working hours; or
    
3. you were not paid for more than 800 working hours (approximately 20 weeks full-time or 15 hours or less per week part-time) during the preceding 365 days.

It is the municipal position that is designated as having "special municipal employee" status, not the individual and all employees holding the same office or position must have the same classification as "special municipal employees."

How does § 17 apply to "special municipal employee"?

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: 

1. in which he has at any time participated as a municipal employee, or
    
2. which is or within one year has been a subject of his official responsibility, or
    
3. which is pending in the municipal agency in which he is serving (this applies if he serves in his public position no more than 60 days during any 365-day period).

Are there any exceptions to these rules for full-time municipal employees who cannot be "special municipal employees"?

Yes. There are numerous exemptions to §17, and some which apply to both special and non-special municipal employees, including:

• Testimonial Exemption: This allows a municipal employee to give testimony under oath. See EC-COI-98-1.

 

• Disciplinary or Personnel Administration Proceedings Exemption: This allows a municipal employee to aid or assist another person who is the subject of disciplinary or other personnel administration proceedings with respect to those proceedings. The municipal employee, however, cannot be paid to do so.

 

• Immediate Family/Fiduciary Exemption: This exemption allows a municipal employee to act as an agent for, or aid or assist members of his immediate family or any person for whom he is serving as guardian, executor, administrator, trustee or other personal fiduciary, except in those matters in which he, in his municipal role, has participated or which are the subject of official responsibility; provided, that his appointing authority approves.

This exemption is not available to elected municipal employees.

• Permit Pulling Exemption: This allows a municipal employee to apply on behalf of someone else, and be paid to do so, for the follow permits:

1. 1. building,
   2. electrical,
   3. wiring,
   4. plumbing,
   5. gas fitting or
   6. septic system.

However, this exemption cannot be used by a municipal employee who is employed by or provides services to the permit-granting agency or any agency that regulates the activities of the permit-granting agency. See EC-COI-03-02.

For example a full-time firefighter could apply for an electrical permit from the building department but could not apply for an oil tank removal permit from the fire department.

• Municipal Options and Overrides: The Legislature has changed how § 17 applies to municipal employees in certain situations that allows them to do private work in the same municipality in which they serve, if the provision is adopted by the municipality and the municipal employee follows its requirements:

1. 1. G.L. c. 166, § 32A (wiring inspectors);
   2. G.L. c. 143, § 3Z (part-time building inspectors);
   3. G.L. c. 142, § 13 (plumbing inspectors); and
   4. G.L. c. 111, § 26G (septic system installers).

The Legal Division advises individuals using these exemptions to consult with municipal counsel as to whether the municipality adopted the provision (local option) and, if so, whether they fall within it.

The commission has also created a number of regulatory exemptions to § 17. These regulatory exemptions allow municipal employees to

• serve in volunteer positions (930 C.M.R. 6.02);
   
• advocate for their children with public employees, provided that certain restrictions are satisfied (930 C.M.R. 6.03);
   
• act on behalf of volunteer medical or rescue organizations in exigent circumstances (930 C.M.R. 6.04);
   
• for persons who are special municipal employees by reason of performing contracted legal or other professional services for a municipal agency, have a financial interest in an additional municipal contract, provided certain restrictions are satisfied (930 C.M.R. 6.13(3));
   
• hold a position with the federal census 930 C.M.R. 6.18; and
   
• participate as a board member in a determination of general policy, even if, in doing so, the board member gives the views of the entity, industry, constituency, or stakeholder group with which he or she is affiliated, where the public board is legally required by a legal requirement to have members who are affiliated with a specified entity, industry, constituency or stakeholder group (930 C.M.R. 6.23(3)(a).

There may be other exceptions that would apply to a particular situation. Please contact the Ethics Commission for advice at [phone].