TOWN OF
OFFICE OF THE TOWN CLERK
WHITINSVILLE MA 01588
Dear Municipal Employee:
On July 1, 2009 Governor Patrick signed into law
Chapter 28 of the Acts of 2009 (the “Bill”) making changes to the state’s
conflict of interest law and the State Ethics Commission’s enabling act.
On September 29, 2009 portions of the Bill that relate to the conflict of
interest law went into effect.
(1) Acknowledge
Receipt of the Summary of the Conflict of Interest Law for
Municipal
Employees:
Each
municipal employee is required to sign a
written acknowledgment that he/she has been provided with a copy of the Summary
of the Conflict of Interest Law for Municipal Employees and such written
acknowledgment must be filed with the town clerk.
A
copy of the Summary of the Conflict of Interest Law for Municipal Employees is on
this web site. You may acknowledge
receipt of the Summary of the Conflict of Interest Law for Municipal Employees via an email to me at dcedrone@northbridgemass.org or
mail your acknowledgment (the acknowledgment
is on the last page of the Summary) to the Town Clerk’s Office,
Each employee
must provide an acknowledgment of receipt within ten (10) business days of
receipt of the Summary.
(2) Complete
the online training program:
The Bill also adds a new
Section 28 to the conflict of interest law, which provides that every “municipal
employee shall, within 30 days after becoming such an employee, and every 2
years thereafter, complete the online training
program. Upon completion of the online training program, the employee
shall provide notice of such completion to be retained for 6 years” by the
city/town clerk.
The Commission currently has on its website an online
training program, which, until such time as it is revised, should be the
program used by municipal employees to comply with this training
requirement. Upon completion of the program, employees should print out
the completion certificate, keep a copy themselves and provide a copy to the
town clerk. For
the online training program, go to www.mass.gov/ethics
to Education and Training Resources to
Mandatory Summaries and Training to
Online Training Program (please note deadline extension - see below. Municipal employees must complete the online training program provided on the
Commission’s website on or before April 2, 2010, and every 2 years
thereafter.
Please call
me at 508-234-2001 if you have any questions!
Sincerely,
Doreen
A. Cedrone, CMC, CMMC
Town Clerk
Town of
Please note: Whether elected or appointed, paid or unpaid,
part-time or full-time, you are a municipal employee subject to the conflict of
interest law – even “consultants” will be considered municipal employees.
Summary of
the Conflict of Interest Law for Municipal Employees
This summary of the conflict of interest law, General Laws
chapter 268A, is intended to help municipal employees understand how that law
applies to them. This summary is not a substitute for legal advice, nor
does it mention every aspect of the law that may apply in a particular
situation. Municipal employees can obtain free confidential advice about
the conflict of interest law from the Commission’s Legal Division at our
website, phone number, and address above. Municipal counsel
may also provide advice.
The conflict of interest law seeks to prevent conflicts between private
interests and public duties, foster integrity in public service, and promote
the public’s trust and confidence in that service by placing restrictions on
what municipal employees may do on the job, after hours, and after
leaving public service, as described below. The sections referenced below
are sections of G.L. c. 268A.
When the Commission determines that the conflict of interest law has been
violated, it can impose a civil penalty of up to $10,000 ($25,000 for bribery
cases) for each violation. In addition, the Commission can order the
violator to repay any economic advantage he gained by the violation, and to
make restitution to injured third parties. Violations of the conflict of
interest law can also be prosecuted criminally.
I. Are you a municipal employee for conflict of interest law purposes?
You do not have to be a full-time, paid municipal employee to be considered a
municipal employee for conflict of interest purposes. Anyone performing
services for a city or town or holding a municipal position, whether paid or
unpaid, including full- and part-time municipal employees, elected officials, volunteers,
and consultants, is a municipal employee under the conflict of interest
law. An employee of a private firm can also be a municipal employee, if
the private firm has a contract with the city or town and the employee is a
“key employee” under the contract, meaning the town has specifically contracted
for her services. The law also covers private parties who engage in
impermissible dealings with municipal employees, such as offering bribes or
illegal gifts.
II. On-the-job restrictions.
(a) Bribes. Asking for and taking bribes is
prohibited.
(See Section 2)
A bribe is anything of
value corruptly received by a municipal employee in exchange for the employee
being influenced in his official actions. Giving, offering, receiving, or
asking for a bribe is illegal.
Bribes are more serious than illegal gifts because they involve corrupt
intent. In other words, the municipal employee intends to sell his office
by agreeing to do or not do some official act, and the giver intends to
influence him to do so. Bribes of any value are illegal.
(b) Gifts and gratuities. Asking for or accepting a
gift because of your official position, or because of something you can do or
have done in your official position, is prohibited. (See Sections 3,
23(b)(2), and 26)
Municipal employees may not
accept gifts and gratuities valued at $50 or more given to influence their
official actions or because of their official position. Accepting a gift
intended to reward past official action or to bring about future official
action is illegal, as is giving such gifts. Accepting a gift given to you
because of the municipal position you hold is also illegal. Meals,
entertainment event tickets, golf, gift baskets, and payment of travel expenses
can all be illegal gifts if given in connection with official action or
position, as can anything worth $50 or more. A number of smaller gifts
together worth $50 or more may also violate these sections.
Example of violation: A
town administrator accepts reduced rental payments from developers.
Example of violation: A
developer offers a ski trip to a school district employee who oversees the
developer’s work for the school district.
Regulatory
exemptions. There are situations in which a
municipal employee’s receipt of a gift does not present a genuine risk of a
conflict of interest, and may in fact advance the public
interest. The Commission has created exemptions, and is considering
creating additional exemptions, permitting giving and receiving gifts in these
situations. One commonly used exemption permits municipal employees to
accept payment of travel-related expenses when doing so advances a public
purpose. Other exemptions are listed on the Commission’s website.
Example where there
is no violation: A fire truck manufacturer
offers to pay the travel expenses of a fire chief to a trade show where the
chief can examine various kinds of fire-fighting equipment that the town may
purchase. The chief fills out a disclosure form and obtains prior
approval from his appointing authority.
(c) Misuse of position. Using your official position to
get something you are not entitled to, or to get someone else something they
are not entitled to, is prohibited. Causing someone else to do these
things is also prohibited. (See Sections 23(b)(2)
and 26)
A municipal employee may
not use her official position to get something worth $50 or more that would not
be properly available to other similarly situated individuals. Similarly,
a municipal employee may not use her official position to get something worth
$50 or more for someone else that would not be properly available to other
similarly situated individuals. Causing someone else to do these things
is also prohibited.
Example of violation: A
full-time town employee writes a novel on work time, using her office computer,
and directing her secretary to proofread the draft.
Example of violation: A
city councilor directs subordinates to drive the councilor’s wife to and from
the grocery store.
Example of violation: A
mayor avoids a speeding ticket by asking the police officer who stops him, “Do
you know who I am?” and showing his municipal I.D.
(d) Self-dealing and nepotism. Participating as a
municipal employee in a matter in which you, your immediate family, your
business organization, or your future employer has a financial interest is
prohibited. (See Section 19)
A municipal employee may
not participate in any particular matter in which he or a member of his
immediate family (parents, children, siblings, spouse, and spouse’s parents,
children, and siblings) has a financial interest. He also may not
participate in any particular matter in which a prospective employer,
or a business organization of which he is a director, officer, trustee, or
employee has a financial interest. Participation includes discussing as
well as voting on a matter, and delegating a matter to someone else.
A financial interest may create a conflict of interest whether it is large or
small, and positive or negative. In other words, it does not matter if a
lot of money is involved or only a little. It also does not matter if you
are putting money into your pocket or taking it out. If you, your
immediate family, your business, or your employer have or has a financial
interest in a matter, you may not participate. The financial interest
must be direct and immediate or reasonably foreseeable to create a
conflict. Financial interests which are remote, speculative or not
sufficiently identifiable do not create conflicts.
Example of violation: A
school committee member’s wife is a teacher in the town’s public
schools. The school committee member votes on the budget line item
for teachers’ salaries.
Example of violation: A
member of a town affordable housing committee is also the director of a
non-profit housing development corporation. The non-profit makes an
application to the committee, and the member/director participates in the
discussion.
Example: A
planning board member lives next door to property where a developer plans to
construct a new building. Because the planning board member owns
abutting property, he is presumed to have a financial interest in the
matter. He cannot participate unless he provides the State Ethics
Commission with an opinion from a qualified independent appraiser that the new
construction will not affect his financial interest.
In many cases, where not otherwise required to participate, a municipal
employee may comply with the law by simply not participating in the particular
matter in which she has a financial interest. She need not give a reason
for not participating.
There are several exemptions to this section of the law. An appointed
municipal employee may file a written disclosure about the financial interest
with his appointing authority, and seek permission to participate notwithstanding
the conflict. The appointing authority may grant written permission if
she determines that the financial interest in question is not so substantial
that it is likely to affect the integrity of his services to the
municipality. Participating without disclosing the financial interest is
a violation. Elected employees cannot use the disclosure procedure
because they have no appointing authority.
Example where there is
no violation: An appointed member
of the town zoning advisory committee, which will review and recommend changes
to the town’s by-laws with regard to a commercial district, is a partner at a
company that owns commercial property in the district. Prior to
participating in any committee discussions, the member files a disclosure with
the zoning board of appeals that appointed him to his position, and that board
gives him a written determination authorizing his participation, despite his
company’s financial interest. There is no violation.
There is also an exemption for both appointed and elected employees where the
employee’s task is to address a matter of general policy and the employee’s
financial interest is shared with a substantial portion (generally 10% or more)
of the town’s population, such as, for instance, a financial interest in real
estate tax rates or municipal utility rates.
(e) False claims. Presenting a false claim to your
employer for a payment or benefit is prohibited, and causing someone else to do
so is also prohibited. (See Sections 23(b)(4)
and 26)
A municipal employee may
not present a false or fraudulent claim to his employer for any payment or
benefit worth $50 or more, or cause another person to do so.
Example of violation: A
public works director directs his secretary to fill out time sheets to show him
as present at work on days when he was skiing.
(f) Appearance of conflict. Acting in a manner that
would make a reasonable person think you can be improperly influenced is
prohibited. (See Section 23(b)(3))
A municipal employee may
not act in a manner that would cause a reasonable person to think that she
would show favor toward someone or that she can be improperly influenced.
Section 23(b)(3) requires a municipal employee to
consider whether her relationships and affiliations could prevent her from
acting fairly and objectively when she performs her duties for a city or
town. If she cannot be fair and objective because of a relationship or
affiliation, she should not perform her duties. However, a municipal
employee, whether elected or appointed, can avoid violating this provision by
making a public disclosure of the facts. An appointed employee must make
the disclosure in writing to his appointing official.
Example where there is no
violation: A developer who is the cousin of the
chair of the conservation commission has filed an application with the
commission. A reasonable person could conclude that the chair might
favor her cousin. The chair files a written disclosure with her
appointing authority explaining her relationship with her cousin prior to the
meeting at which the application will be considered. There is no
violation of Sec. 23(b)(3).
(g) Confidential information. Improperly disclosing or
personally using confidential information obtained through your job is
prohibited. (See Section 23(c))
Municipal employees may not
improperly disclose confidential information, or make personal use of
non-public information they acquired in the course of their official duties to
further their personal interests.
III. After-hours restrictions.
(a) Taking a second paid job that conflicts with the duties of your
municipal job is prohibited. (See Section 23(b)(1))
A municipal employee may
not accept other paid employment if the responsibilities of the second job are
incompatible with his or her municipal job.
Example:
A police officer may not work as a paid private security guard in the
town where he serves because the demands of his private employment would
conflict with his duties as a police officer.
(b) Divided loyalties. Receiving pay from anyone other
than the city or town to work on a matter involving the city or town is
prohibited. Acting as agent or attorney for anyone other than the
city or town in a matter involving the city or town is also prohibited whether
or not you are paid. (See Sec. 17)
Because cities and towns
are entitled to the undivided loyalty of their employees, a municipal employee
may not be paid by other people and organizations in relation to a matter if
the city or town has an interest in the matter. In addition, a municipal
employee may not act on behalf of other people and organizations or act as an
attorney for other people and organizations in which the town has an
interest. Acting as agent includes contacting the municipality in person,
by phone, or in writing; acting as a liaison; providing documents to the city
or town; and serving as spokesman.
A municipal employee may always represent his own personal interests, even
before his own municipal agency or board, on the same terms and conditions that
other similarly situated members of the public would be allowed to do so.
A municipal employee may also apply for building and related permits on
behalf of someone else and be paid for doing so, unless he works for the
permitting agency, or an agency which regulates the permitting agency.
Example of violation: A
full-time health agent submits a septic system plan that she has prepared for a
private client to the town’s board of health.
Example of violation: A
planning board member represents a private client before the board of selectmen
on a request that town meeting consider rezoning the client’s property.
While many municipal employees earn their livelihood in municipal jobs, some
municipal employees volunteer their time to provide services to the town or
receive small stipends. Others, such as a private attorney who provides
legal services to a town as needed, may serve in a position in which they may
have other personal or private employment during normal working hours. In
recognition of the need not to unduly restrict the ability of town volunteers
and part-time employees to earn a living, the law is less restrictive for
“special” municipal employees than for other municipal employees.
The status of “special” municipal employee has to be assigned to a municipal position by vote of the board of selectmen, city
council, or similar body. A position is eligible to be designated as
“special” if it is unpaid, or if it is part-time and the employee is allowed to
have another job during normal working hours, or if the employee was not paid
for working more than 800 hours during the preceding 365 days. It is the
position that is designated as “special” and not the person or persons holding
the position. Selectmen in towns of 10,000 or fewer are automatically
“special”; selectman in larger towns cannot be “specials.”
If a municipal position has been designated as “special,” an employee holding
that position may be paid by others, act on behalf of others, and act as
attorney for others with respect to matters before municipal boards other than
his own, provided that he has not officially participated in the matter, and
the matter is not now, and has not within the past year been, under his
official responsibility.
Example: A
school committee member who has been designated as a special municipal employee
appears before the board of health on behalf of a client of his private law
practice, on a matter that he has not participated in or had responsibility for
as a school committee member. There is no conflict. However,
he may not appear before the school committee, or the school department, on
behalf of a client because he has official responsibility for any matter that
comes before the school committee. This is still the case even if he has recused himself from participating in the matter in his
official capacity.
Example: A
member who sits as an alternate on the conservation commission is a special
municipal employee. Under town by-laws, he only has official
responsibility for matters assigned to him. He may represent a resident
who wants to file an application with the conservation commission as long as
the matter is not assigned to him and he will not participate in it.
(c) Inside track. Being paid by your city or town,
directly or indirectly, under some second arrangement in addition to your job
is prohibited, unless an exemption applies. (See Section 20)
A municipal employee
generally may not have a financial interest in a municipal contract, including
a second municipal job. A municipal employee is also generally prohibited
from having an indirect financial interest in a contract that the city or town
has with someone else. This provision is intended to prevent municipal
employees from having an “inside track” to further financial opportunities.
Example of violation: Legal
counsel to the town housing authority becomes the acting executive director of
the authority, and is paid in both positions.
Example of violation: A
selectman buys a surplus truck from the town DPW.
Example of violation: A
full-time secretary for the board of health wants to have a second job working
part-time for the town library. She will violate Section 20 unless
she can meet the requirements of an exemption.
Example of violation: A
city councilor wants to work for a non-profit that receives funding under a
contract with her city. Unless she can satisfy the requirements of
an exemption under Section 20, she cannot take the job.
There are numerous exemptions. A municipal employee may hold multiple
unpaid or elected positions. Some exemptions apply only to special
municipal employees. Specific exemptions may cover housing-related
benefits, public safety positions, certain elected positions, small towns, and
other specific situations. Please call the Ethics Commission’s Legal
Division for advice about a specific situation.
IV. After you leave municipal
employment. (See Section 18)
(a) Forever ban. After you leave your municipal job, you may
never work for anyone other than the municipality on a matter that you worked
on as a municipal employee.
If you participated in a
matter as a municipal employee, you cannot ever be paid to work on that same
matter for anyone other than the municipality, nor may you act for someone
else, whether paid or not. The purpose of this restriction is to bar
former employees from selling to private interests their familiarity with the
facts of particular matters that are of continuing concern to their former
municipal employer. The restriction does not prohibit former municipal
employees from using the expertise acquired in government service in their
subsequent private activities.
Example of violation: A
former school department employee works for a contractor under a contract that
she helped to draft and oversee for the school department.
(b) One year cooling-off period. For one year after you
leave your municipal job you may not participate in any matter over which you
had official responsibility during your last two years of public service.
Former municipal employees
are barred for one year after they leave municipal employment from personally
appearing before any agency of the municipality in connection with matters that
were under their authority in their prior municipal positions during the two
years before they left.
Example: An
assistant town manager negotiates a three-year contract with a
company. The town manager who supervised the assistant, and had
official responsibility for the contract but did not participate in negotiating
it, leaves her job to work for the company to which the contract was
awarded. The former manager may not call or write the town in connection
with the company’s work on the contract for one year after leaving the town.
(c) Partners. Your partners will be subject to restrictions
while you serve as a municipal employee and after your municipal service ends.
Partners of municipal
employees and former municipal employees are also subject to restrictions under
the conflict of interest law. If a municipal employee participated in a
matter, or if he has official responsibility for a matter, then his partner may
not act on behalf of anyone other than the municipality or provide services as
an attorney to anyone but the city or town in relation to the matter.
Example: While serving
on a city’s historic district commission, an architect reviewed an application
to get landmark status for a building. His partners at his
architecture firm may not prepare and sign plans for the owner of the building
or otherwise act on the owner’s behalf in relation to the application for
landmark status. In addition, because the architect has official
responsibility as a commissioner for every matter that comes before the
commission, his partners may not communicate with the commission or otherwise
act on behalf of any client on any matter that comes before the commission
during the time that the architect serves on the commission.
Example: A
former town counsel joins a law firm as a partner. Because she
litigated a lawsuit for the town, her new partners cannot represent any private
clients in the lawsuit for one year after her job with the town ended.
* * *
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This summary is not
intended to be legal advice and, because it is a summary, it does not mention
every provision of the conflict law that may apply in a particular
situation. Our website, www.mass.gov/ethics, contains further information
about how the law applies in many situations. You can also contact the
Commission’s Legal Division via our website, by telephone, or by letter.
Our contact information is at the top of this document.
Version 3: Revised
October 7, 2009
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ACKNOWLEDGMENT OF RECEIPT
I, __________________________, hereby acknowledge that I
(PRINT first and last name)
received a copy
of the summary of the conflict of interest law for municipal
employees on
____________.
(date)
______________________________
(Signature)
Municipal employees
should complete the Acknowledgment of Receipt and return it to either the
individual who provided them with a copy of the summary or the: Town Clerk,