Board Members and Jobs Under the Board's Supervision
Massachusetts has an
interesting, but I think limited <a href="http://www.mass.gov/ethics/web268A.htm" target="”_blank”">ethics provision</a> that applies to local government board members and jobs under their board's supervision:<br>
<br>
<p> Section 21A. Except as hereinafter
provided, no member of a
municipal commission or board shall be eligible for appointment or
election by the members of such commission or board to any office or
position under the supervision of such commission or board. No
former
member of such
commission or board shall be so eligible until the expiration of thirty
days from the termination of his service as a member of such commission
or board.
<br wp="br2">
</p>
<div> The provisions of this section shall
not apply to a member of a
town commission or board, if such appointment or election has first
been approved at an annual town meeting of the town.
<br>
</div>
<br>
This unusual provision is, I think, worthwhile, but does not go far
enough. In my town, a similar situation occurred last year, but it
would not have come under this provision. The chair of a board that
oversees a town department applied for the job of that department's director. The supervision requirement may be met, although the
actual supervisor is the first selectman. But the board only recommends
applicants, it does not have the final appointment decision. Therefore, the board's
recommendation of its chair for the job would not be
considered a violation of this ethics provision.<br>
<br>
A 1996 <a href="http://www.mass.gov/ethics/adv9601.htm" target="”_blank”">advisory
opinion</a> by the Massachusetts State Ethics Commission discusses the
purpose of this provision.<br>
<br>
<div>These restrictions are designed to
prevent people serving in municipal
government from having the "inside track" on other positions and
employment opportunities. As the Supreme Judicial Court has pointed out
in dealing with the principle of incompatibility of offices, the
"personal and selfish interest [of a board member under consideration
for an appointed position] would prevent him from having as a member of
the board...an eye single to the interest of the public."
<em>Attorney General v. Henry</em>, 262 Mass. 127, 132 (1928).<br>
</div>
<br>
Two purposes are stated here. One involves preferential treatment of
board members by other board members. Such treatment does not require
that a board actually appoint the member or that it supervises the
position. If a board has the power or duty to recommend someone for a
job, even if the person in that job is selected and/or supervised by
someone else, there is still a preferential treatment problem. The
Massachusetts rules is, I think, too narrowly applied to serve the
purpose of preventing preferential treatment.<br>
<br>
The second purpose is to prevent a board member from acting so as to
secure a job, rather than acting in
the public interest. This is the sort of conflict situation that is
very difficult to enforce. And this provision does not provide
effective enforcement. If a board member is intent on securing a job
that the board appoints, all he or she has to do is resign from the
board and apply for the job at least thirty days before the appointment
is made. This restriction would not stop a board member from doing what
he or she thought necessary to secure the board's support. I would
recommend a waiting period of one year, which is the common
revolving-door waiting period.<br>
<br>
Another similar situation not covered by this provision became an issue recently in the town of Bridgewater, according to <a href="http://www.wickedlocal.com/bridgewater/news/x297234180/Bridgewater-Sele…; target="”_blank”">a
local article</a> this week. The emergency management director was
elected to the town's board of selectmen. Subsequently, the position's
hours (and salary) grew by 75%. The board does not supervise the
position; that is done by the municipal administrator, who himself
reports directly to the board.<br>
<br>
This raises another issue: whichever came first, the job or the
board membership, is it ever good to have someone supervised directly
or indirectly by his own board? In this situation, the board member's
boss reports to the board member. That is not a good management
situation.<br>
<br>
In addition, the appearance of impropriety is the same. Anything that
happens with respect to the job will be seen as preferential treatment.
The emergency management director says his hours went up due to 9/11,
but that argument is doubted by some, because it was his own board that
allowed this salary increase.<br>
<br>
There is also the issue of discipline. Should a board ever be in a
position to discipline one of its members as an employee? And should anyone be in the
position to take advantage of the reluctance of his fellow board
members to discipline her? On the other hand, should an employee's work
problems become a political football for opposition elected officials?<br>
<br>
Section 20 of the <a href="http://www.mass.gov/ethics/web268A.htm" target="”_blank”">state
ethics code</a> does deal, although not explicitly, with holding two
paid jobs. But it does not deal with the other issues, such as
supervision, or with holding one paid position and one unpaid position
where there is any sort of supervision. And it has a big exception for
members of the board of selectmen, as well as other exceptions.<br>
<br>
I don't think that it is good for board members to have any paid
position that is supervised directly or indirectly by the board,
whichever came first. The Massachusetts rule is on the right track, but
it appears that either there was a compromise or that all the purposes
involved in such situations were not considered.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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