Zoning Board of Appeals Members- Explanation of the Conflict of Interest Law

Information about how the conflict of interest law applies to Zoning Board of Appeals Members, including restrictions placed on them while on the job, after hours and after leaving public service.

Conflict of Interest Law Questions and Answers

Zoning Board of Appeals (ZBA) members 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 of interest law is to ensure that your private financial interests and relationships do not conflict with your responsibilities on the ZBA.  The law is written broadly to cover situations which even give the appearance of a conflict.

If your ZBA position has been designated as a "special" municipal employee position, 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.)  Most ZBA member positions may be designated as specials; see the Commission's Explanation of the Law for Special Municipal Employees for information on eligibility and the designation process.

Accepting Gifts (Section 3 and Section 23(b)(2)(i))

The ZBA heard a case involving a dispute between a developer and a local citizen's group over whether to grant a variance to allow a hotel to be built.  The ZBA decided unanimously not to grant the variance.  To show its gratitude, the local citizens group offers each ZBA member 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 actions you have taken, or will take, in your town position or because you hold a town position, even if the motivation for the gift is to express gratitude for a job well done or to foster goodwill.  If the gift certificate is worth $50 or more, you may not accept it. 
  • If the gift certificate is valued at less than $50, you may accept it 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 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 be created by accepting gifts.

Prohibited Actions Affecting Financial Interests (Section 19)

You are a professional architect for a development company presently building condominiums in town.  May you, as a ZBA member, deliberate and vote on your company's request for a special permit if you have not worked on the architectural plans for this development?

  • No.  You may not participate in any matter that affects the financial interest of your employer (whether or not you have worked on it for your company).  You also may not act in your capacity as a ZBA member on a matter that affects your own financial interest or those of your "immediate" family or a business for which you serve as officer, director, partner or trustee.  You must abstain on matters affecting your competitors.

Immediate family is defined in the law as you and your spouse and both of your children, parents, brothers and sisters.  For example, if your sister is an abutter to a proposed development, you must abstain when the developer comes before your board seeking a zoning variance.  Your sister, as an abutter, has a financial interest in the matter.

There is an exemption to this restriction available for appointed ZBA members.  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 make a written disclosure to, and receive written permission from, your appointing authority prior to taking any action.

Appearances of Conflict and Misuse of Official Position (Section 23)

Your cousin, a lawyer, is representing a client in a request for a zoning variance.  May you act as a ZBA members in the matter?

  • Yes, provided that you publicly disclose your private relationship with your cousin in writing to your appointing authority (whatever board or person appointed you) prior to taking any action.  This disclosure must be kept available for public inspection.  We also suggest that you make a verbal disclosure at a public meeting in which the matter arises.  Your written 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 ZBA position to secure unwarranted privileges for people always violates the law, regardless of whether you disclosed your private relationship.

See the Commission’s Advisory 05-01 – The Standards of Conduct for more detailed information.

Restrictions "After Hours" (Section 17)

You are a business manager working for a development company.  While on the ZBA, may you, along with other development company employees, represent the development company before the Planning Board on a subdivision plan?

  • If you are a regular municipal employee, no.  You may not act as the agent or attorney for any private party, including your own company, before town boards.  Representing a private company before a town board is acting as that company's agent; it doesn't matter whether you are paid or not.
  • If you are a "special" municipal employee, it depends.  You may represent private parties before other town boards (not your own) unless your representation is on a matter in which you participated as a ZBA matter or a matter which is now, or within the past year, was within your official responsibility as a ZBA member.  In this example, the proposed development would likely come before the ZBA for approval.  Therefore, you could not represent the development company before the Planning Board, whether or not you are a special municipal employee.  To emphasize, it is not enough simply to abstain from official action on your own board; if the same matter is before other town boards, you must not act as the representative for a private company before those boards.

Prohibited Financial Interest in Municipal Contracts & Multiple Jobs (Section 20)

You want to serve as elected school committee member.  If elected, may you hold positions on both the appointed ZBA and school committee?

  • It depends.  If both positions are unpaid, yes.  If the ZBA position is appointed and unpaid, and the school committee position is paid, you may hold both positions. 
  • If the ZBA position is appointed and paid, and the elected school committee position is unpaid, you will need an exemption.  You can use the exemption for uncompensated positions by filing a written disclosure with your appointing authority for the ZBA.  See 930 CMR 6.02(3).
  • However, if the ZBA position is appointed and paid, and the elected school committee position is paid, you will need an exemption in order to hold both positions.

Talk to your municipal lawyer about the technical requirements you must meet to hold multiple positions or call the Ethics Commission at (617) 371-9500.

Restrictions After You Leave Government Service (Section 18)

You have resigned as a member of the ZBA and now work for a developer who has a project pending before the city.  May you represent the developer before various city boards and agencies?

  • It depends.
    • You may not represent the developer before a city agency concerning a matter in which you participated as a ZBA member.
    • For one year after you leave the ZBA, you may not appear before city boards on a matter which was under your official responsibility within the two years before you left the ZBA.
    • You may represent the developer before city agencies (including your own) with no "cooling off" period, on a matter you never dealt with and which was never under your official responsibility while you were a ZBA member.

Advisory Opinion

This summary presents a brief overview of the conflict of interest law and suggests activities which you, as a ZBA member, 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 specific advice about how the law applies to your situation.

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 town or city, urge them to use the opinion process.  In addition, complaints may be filed with our Enforcement Division online by using the website, by phone (at the same number listed above), by letter or in person.  The identity of complainants is kept confidential.

* * *

 Explanations about the conflict of interest law are prepared and issued by the Public Education and Communications 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: October 1987

UPDATED:

 

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