Conflict of Interest Law Questions and Answers
Town and City Clerks 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 purpose of the conflict law is to ensure that your private financial interests and relationships do not conflict with your responsibilities as Clerk. The law is broadly written to prevent situations which may even give the appearance of a conflict.
If you have been designated as a "special" municipal employee, two sections of the conflict law, Sections 17 and 20, apply less restrictively to you. (All other sections of the conflict law which affect municipal employees apply to special municipal employees in the same way. See the Commission's Fact Sheet, "Special Municipal Employees" for information on eligibility and the process of designation.)
Town and City Clerks must keep on file lists of all positions designated as special municipal employee positions.
Accepting Gifts (Section 3)
You have just finished running an election. A local candidate, simply to show his gratitude for a job well done, offers you a gift certificate to a fine restaurant in Boston. May you accept?
- It depends. You may not accept a gift of substantial value ($50 or more), which is given to you because of the municipal position you hold, from someone or some group with whom you have official dealings, even if the motivation for the gift is to express gratitude for a job well done or to foster goodwill. If your dinner is worth $50 or more, you may not accept the gift certificate.
If the dinner is valued at less than $50 you may accept the gift provided that it is not intended as a bribe. (A bribe, no matter what its value, will violate the law.)
The conflict of interest law permits local boards and departments to adopt stricter standards than those in the state law. Many local governments simply have an outright ban on accepting any gifts to avoid any appearance of conflict or favoritism which may arise by accepting gifts.
Prohibited Actions Affecting Financial Interests (Section 19)
You have a part-time position open in your office. May you hire your daughter?
- No. You may not participate in any matter that affects the financial interest of an "immediate" family member. Immediate family is defined in the law as you and your spouse and both of your children, parents, brothers and sisters. You may not participate in any way in the hiring process for your daughter or in any performance review, promotion or salary determination for your daughter.
You also may not act in your capacity as Clerk on a matter that affects your own financial interest or the financial interest of a business for which you serve as employee, officer, director, partner or trustee.
There is an exemption to this restriction available for appointed Clerks. If you are appointed, you may act on a matter affecting your own, your immediate family's or your business' financial interest only if you receive written permission from your appointing authority (whatever board or person appointed you) prior to taking any action. This means that, if you receive permission first, you may hire your daughter.
Misuse of Official Position (Section 23)
Your cousin has applied for a job in your office. May you hire your cousin?
- Yes, provided that you disclose your relationship with your cousin to your appointing authority before you start the hiring process. Elected Clerks must make such a disclosure to the public. These disclosures must be in writing, available for public inspection. The Commission has suggested that all such disclosures be kept on file at the Clerk's office, therefore, you may be receiving copies of these disclosures from other municipal officials.
The public disclosure will dispel, by law, the impression of favoritism created when you act on matters affecting relatives (who are outside the definition of "immediate family") or friends. In addition, you must act objectively and not attempt to obtain any special favors for your cousin because of your relationship. Using your position to secure unwarranted privileges for people always violates the law, regardless of whether you disclosed your private relationship. Therefore, if you hired an unqualified person for a job because of some personal or political connection, you would violate the conflict law.
See, Commission Fact Sheet, "Avoiding Appearances of Conflicts of Interests" for more detailed information.
Prohibited Financial Interest in Municipal Contracts & Multiple Jobs (Section 20)
You want to serve as appointed paid Tax Collector in addition to Clerk. May you hold both positions?
- Yes. Massachusetts General Laws Chapter 41, §19I specifically authorizes City and Town Clerks to hold any number of paid municipal positions as long as you receive the approval of the selectmen, town meeting, town counsel (in a town) or mayor and city council (in a city). The restrictions in the conflict law on municipal employees holding multiple paid positions do not apply to City and Town Clerks.
Restrictions After Hours (Section 17)
You are the president of a local citizens group opposed to development in your community. May you represent the group before the Planning Board concerning a subdivision plan?
- If you are a regular municipal employee, no. You may not act as the agent or attorney for a private party before town or city boards. Representing the interests of a private organization before a town board is acting as an agent in violation of the conflict law; it doesn't matter whether you are paid or not.
- If you are a "special" municipal employee, yes. You may represent private organizations before other boards or departments (not your own) unless your representation concerns a matter in which you participated or which is now or within the past year was within your official responsibility as Clerk. In this example, the matter before the Planning Board would not come before the Clerk's office for action, therefore, you could represent the citizens group before the Planning Board if you are a special.
Restrictions After You Leave Government Service (Section 18)
You have resigned as Clerk. You have gone into partnership with a local developer. May you represent your partnership before town or city boards?
- Yes. You may represent your company or a private client before city or town agencies (including your own) with no "cooling off" period on a matter you never dealt with and which was not pending in your office while you were Clerk. In this example, the Clerk's office has no authority over development, therefore, you would not have any post-employment restrictions in this area.
You may not represent your company or a client concerning a particular matter in which you participated as Clerk. If, for example, you participated in counting the ballots in the last election, you may not now work for the "other side" in formally requesting a recount. If you didn't personally participate in counting the ballots but you had official responsibility for the count, you may not represent a client in opposing that count for one year after you leave your job.
Advisory Opinion
This summary presents a brief overview of the conflict law and suggests activities which you, as a Town or City Clerk, must avoid. It is not a comprehensive review intended to cover every situation. You should consult your municipal lawyer or call the Ethics Commission's Legal Division at (617) 371-9500 for particular advice on the conflict law.
If you have a question about your own activities, we urge you to request advice prior to engaging in the activity in question.
If you have questions about others' activities in your city or town, urge them to seek advice. In addition, complaints may be filed with our Enforcement Division in person, by phone (at the same number listed above) or by letter. The identity of complainants is kept confidential.
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Commission Fact Sheets 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.
ISSUED : September 1987
UPDATED: