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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.
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.
A municipality has a direct and substantial interest in
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.
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.
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:
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."
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:
Yes. There are numerous exemptions to §17, and some which apply to both special and non-special municipal employees, including:
This exemption is not available to elected municipal employees.
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.
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
There may be other exceptions that would apply to a particular situation. Please contact the Ethics Commission for advice at (617) 371-9500.