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Board Members and Jobs Under the Board's Supervision
Monday, April 27th, 2009
Robert Wechsler
Massachusetts has an
interesting, but I think limited ethics provision that applies to local government board members and jobs under their board's supervision:
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.
A 1996 advisory opinion by the Massachusetts State Ethics Commission discusses the purpose of this provision.
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.
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.
Another similar situation not covered by this provision became an issue recently in the town of Bridgewater, according to a local article 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.
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.
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.
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?
Section 20 of the state ethics code 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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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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.
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.
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.
A 1996 advisory opinion by the Massachusetts State Ethics Commission discusses the purpose of this provision.
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."
Attorney General v. Henry, 262 Mass. 127, 132 (1928).
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.
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.
Another similar situation not covered by this provision became an issue recently in the town of Bridgewater, according to a local article 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.
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.
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.
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?
Section 20 of the state ethics code 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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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