By Jennifer Goldson, AICP
May, 2009: A common concern of Community Preservation Committee (CPC) members is potential conflict of interest issues between service on a CPC and other activities in which they are involved. These concerns can be addressed by becoming familiar with the Massachusetts Conflict of Interest Law and knowing when and where to seek advice.
The purpose of the Conflict of Interest Law (MGL c.268A) ("the Law") is to protect the public interest by regulating situations where public and private interests intersect. A Community Preservation Committee member is considered a municipal employee (or, possibly, a special municipal employee) as defined by the Law. Generally, sections 17 through 23 of the Law specifically pertain to municipal employees. See also: an Introduction to the Conflict of Interest Law for the Public Sector.
Since the Law is fairly lengthy and complex, it would be a disservice to the subject to attempt a comprehensive analysis in this short article. Therefore, this article discusses a handful of situations that you may face as a CPC member and what you should know about the Conflict of Interest Law to properly deal with or avoid those situations, and is not meant to provide legal or case-specific advice. For counsel regarding a specific situation, please contact the State Ethics Commission, which administers and enforces the provisions of the Conflict of Interest Law.
Wearing multiple public hats
As a CPC member you are very likely to serve on more than one municipal board. In fact, five of each community’s CPC members are statutorily required to also be members of other municipal boards and to be appointed to the CPC by those boards (i.e., Conservation Commission, Historical Commission, Housing Authority, Board of Parks Commissioners, and Planning Board).
If you are appointed to the CPC by one of these boards, you may wonder whether you have a conflict if your board is applying to the CPC for CPA funds or if your board is deliberating on the same project that the CPC is. These situations happen quite often. For example, the Conservation Commission could apply to the CPC for funds to purchase a property to protect open space. Or, the Planning Board may be considering whether to grant a special permit to an affordable housing development that is also seeking CPA funds.
The answer is actually quite simple, at least on the surface. Since both of these situations involve a municipal employee acting in the public interest, not a private interest, then there is not likely to be a conflict of interest. To summarize section 19 of the Law, a municipal employee is prohibited from participating in public matters that have a financial interest to themselves, their family, a business entity they are involved with, or an employer.
You could participate in matters on both the Planning Board and the CPC even if a project comes before both boards. The criteria you would use to make your decisions on each respective board would differ – one deals with regulatory authority and the other makes funding recommendations. You would still need to remain objective on both boards, basing your vote on the facts that are pertinent to that board’s jurisdiction.
In a situation where a board that you are a member of applies for CPA funds, it would be a similar analysis. You would be participating in the matter in the public interest, not in a private interest. The reason CPCs include member from five specific boards is to ensure adequate representation of each board on the committee. Representing the interest of your board is not only OK, it is expected.
If you serve on the CPC and as a municipal employee in another capacity (such as a city or town employee or a finance committee member, but are not one of the five statutory CPC members), the Conflict of Interest Law may impose additional restrictions on you. In this case, you may need to file a disclosure with the municipal clerk or secure a vote of the chief elected official to serve both positions. Check with the State Ethics Commission to make sure you comply.
Involvement with a non-profit organization
What about the situation where a CPC member is involved with a private non-profit organization and that organization applies for CPA funds? In this case, would the CPC member need to abstain from participating in the CPC’s consideration of the application?
It primarily depends on two things: (1) how the CPC member is involved in the non-profit organization and (2) the nature of the non-profit organization. Is the CPC member a dues paying member of the organization? Or is he/she on the Board of Directors? If simply a member of an organization, making a public disclosure may suffice depending on the specific circumstances.
However, if the CPC member serves as an “. . . officer, director, trustee, partner, or employee . . .” of the organization then they may need to abstain from participation in the CPC’s consideration of the application. To determine if an abstention is required, in this case, it would depend on the specific nature of the non-profit organization.
What is the nature of the organization? Is the organization a “business organization”? Some private non-profit organizations (like a non-profit hospital, for example) may be considered a business organization under the Law. If that is the case, and if you are on the board of directors, or a trustee, etc, then you would most likely need to abstain from participation in the CPC’s consideration of the application.
How do you know whether the non-profit you are involved with is a business organization? It would be prudent to ask the State Ethics Commission’s Legal Division for advice on this point.
Having financial interest in a project
Sometimes the CPC may consider a project application in which a CPC member has a financial interest. For example, a CPC member who is a direct abutter to a proposed open space acquisition would have a financial interest if the project would affect his/her property value.
As another example, if a contractor working on a project that is seeking CPA funds employed a CPC member or an immediate family member, the CPC member would have a financial interest in the project.
In these types of situations, it is likely that the CPC member would need to abstain. (There is an exemption to this requirement where the appointing authority could allow a municipal employee to participate in a matter despite having financial interest. However, this exemption is meant for routine matters and is not likely to have an application for CPC members.)
How to abstain and make disclosures
If you’re in a situation that you feel may be a conflict of interest, you need to do one of two things to comply with the Conflict of Interest Law: abstain from participating in the matter being considered by the CPC, or make a public disclosure.
Per Section 23, a public disclosure must be made in writing and submitted to your appointing authority prior to any participation in the matter at issue. (Your appointing authority is the municipal entity that appointed you to the CPC; in the case of an elected official, a disclosure should be filed with the town clerk.)
The disclosure is part of the public record. In addition, a verbal disclosure should be made as part of the official meeting record at the next meeting of the CPC.
In order to properly abstain from participating in a matter, one would need to refrain from approval, disapproval, decision, recommendation, rendering advice, investigating, and the like. Although the Law does not specifically prescribe any physical actions to abstain, it may be prudent to recuse yourself by leaving the room during the CPC’s consideration of the matter. Some people also choose to sit in the audience rather than leave the room. If an abstention is ever investigated by the State Ethics Commission, it will be wise to leave no doubt that you properly abstained by leaving the room entirely.
For more information please refer to the State Ethics Commission’s website, which has many helpful publications that explain various aspects of the Conflict of Interest Law. If you would like advice regarding a specific situation, please contact the State Ethics Commission’s Legal Division either online or by calling the “Attorney of the Day” at 617-371-9500.
The views expressed in this article are those of the author, are not intended to be used as legal advice, and do not necessarily reflect the views of the Community Preservation Coalition.