This past Friday, 8 January 2010, I received an inquiry soliciting a response from me relative to an opinion received on September 7, 2009 by the acting Town Administrator (T.A.). The legal opinion, which had been requested by the acting T.A sought guidance in terms of Selectman Blanchard's participation in the Town Administrator search.
I responded by questioning the opinion to which this individual referred, as I had no knowledge such existed. I requested a copy for the review, which is hosted in the right sidebar. I cannot attest as to who is responsible for the comments or the underlining evident in the document.
As the document (posted to the right) is a third generation copy, its quality is less than ideal, thus I have transcribed it below in its entirety, as sent to me. Here then is the opinion:
Monday, September 07, 2009 5:57:23 PM
From: Lauren F. Goldberg
Subject:
To: Mike Racicot
Cc: Joel Bard
Mike,
You have requested an opinion regarding the application of the Conflict of Interest Law to the possible appointment by the Board of Selectmen of the spouse of a current member of the Board (“Selectmen”) to the position of Town Administrator.
In my opinion, since the Board of Selectmen is the appointing authority for the Town Administrator, the particular matter of the appointment of the Town Administrator will create a conflict for the Selectman pursuant to the provisions of G.L. c268A ss19. In my further opinion, if the Selectman’s spouse were to be appointed by the other members of the Board, G.L. c268A ss 19, will prohibit the Selectman from participation in any decisions regarding the level of performance, salary or adjustments thereto, and/or the day-to-day active supervision of her spouse. In my further opinion, the Selectman, and the other members of the Board of Selectmen may wish to file a disclosure with the Town Clerk pursuant to G.L. c268A ss 23(b)(3) to dispel any appearance that they are acting on the basis of bias of favoritism.
Elected members of the Board of Selectmen are considered “municipal employees” for the purposes of the Conflict of Interest Law, G.L. c268A, and are subject to the prohibitions and restrictions of the Conflict of Interest Law. General Laws c268A ss 19, prohibits any municipal employee from participating in any particular matter in which a member of his immediate family has a financial interest. “Immediate family” is defined as, “the employees and his spouse, and their parents, children, brothers and sisters.” The Conflict of Interest Law defines the term “participation” to include “approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.” The State Ethics Commission explains further that the term “participation” includes “both formal and informal lobbying of colleagues, reviewing and discussing, giving advice and making recommendations, as well as deciding and voting on particular matters,” EC-COI-98-4. The Conflict of Interest Law does not define the term “financial interest” however; the State Ethics Commission “has a long-standing practice of interpreting the phrase as meaning a financial interest of any size, either positive or negative, as long as it is direct and immediate or reasonably foreseeable. The term financial interest does not include financial interests that are “remote, speculative, or not sufficiently identifiable”. See EC-COI-02-2.
Thus, where the Selectman’s spouse seeks appointment to the position of Town Administrator, the provisions of G.L. c268A ss 19, prohibit the Selectman from participation in any way in the appointment process for Town Administrator. This would include, in my opinion, sitting at the table as a member of the Board of Selectmen while the Board discusses any of the candidates for appointment or the process for interviewing, comparing, and ultimately selecting a candidate; interviews and evaluates candidates, or takes any other action concerning the appointment of a Town Administrator.
In my further opinion, however, the provisions of G.L. c268A ss 19 would continue to be implicated of the Board of Selectmen were to appoint the Selectman’s spouse as Town Administrator. As you are aware, the Board of Selectmen, as the appointing authority, supervises the Town Administrator with regard to matters including performance and salary reviews and other personnel-related issues. The State Ethics Commission has concluded that day-to-day supervision of a member of an employee’s immediate family is prohibited, since ultimately hiring, firing and compensation decisions are made as a result of “cumulative impressions” based on day-to-day performance. The State Ethics Commission has concluded further that a supervisor may not avoid a violation of G.L. c268A ss 19, by delegating such duties to a subordinate. In this case, therefore, the Selectman would be obligated to abstain from exercising supervisory authority over her spouse. Of course, the remainder of the Board of Selectmen could continue to supervise the Selectman’s spouse. The Selectman’s abstention from participation will, in my opinion, satisfy the State Ethics Commissions’ concerns regarding “delegation” of authority. Be reminded, however, that for the purposes of the Conflict of Interest Law, “participate” is defined broadly. Thus, if a particular matter were to come before the Board of Selectmen implicating the Selectman’s spouse’s financial interests (i.e., a complaint concerning the Town Administrator or a request for a raise), the Selectman must recuse herself from participation in the matter by stepping down from the table at which the Board is sitting, and/or leaving the room during such discussions.
In my further opinion, the provisions of G.L. c268 ss23(), merit consideration. General Laws c268, ss23(b)(2) provides that no current municipal employee shall knowingly, or with reason to know, “use or attempt to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to the similarly situated individuals”. There is no exemption from this provision, and no disclosure that may be filed. Further, General Laws c.268A, ss23(b)(3) prohibits municipal employees from participating in any matter that would create an appearance of impropriety or cause an impartial observer to believer that such actions are tainted with bias or favoritism. The stature also provides that it is unreasonable to conclude that an appearance of conflict exists “if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.” To the extent that there is a possibility that the Selectman’s spouse could be appointed as Town Administrator, in my opinion, the Selectman and the Board of Selectmen may wish to file individual disclosures with the Town Clerk setting forth the relevant facts. The disclosures filed by the other members of the Board of Selectmen would indicate that among the candidates for appointment is the spouse of a current member of the Board and that they will make a decision with regard to appointment of a Town Administrator based upon the merits of the particular candidate and not upon their relationship with the Selectman or her spouse.
This email does not address the types of conflicts that the Selectman’s spouse would need to be aware of if he were appointed as Town Administrator. However there would be several sections of the Conflict of Interest Law that would require review, including G.L. c.238A, ss19 and 23.
Pursuant to the provisions of G.L. c.268A, ss22, a municipal employee may seek an opinion from Town Counsel as to whether she has a conflict of interest under the provisions of G.L. c.268A. The response to the request is filed with the Town Clerk and the State Ethics Commission, and the State Ethics Commission then has 30 days to comment thereon. If no such response is sent by the Commission within 30 days of receipt of the opinion, Town Counsel’s opinion will be binding upon the Commsion to the extent and in the manner stated in 930 CMR 1.03(2). This letter does not constitute a letter under G.L. c.268A, ss22 or the cited regulations, as it would require that the Selectman request the same.
Please contact me with any further questions regarding this matter.
Very truly yours,
Lauren F. Goldberg, Esq.
Kopelman and Paige, P.C.
101 Arch St., 12th Floor
Boston, MA 02210
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