Conflict of interest law a factor in Martha's Vineyard elections
File photo by Ralph Stewart
On Martha's Vineyard and in other small communities across Massachusetts, it is not unusual for residents who hold public office to wear several hats. When elected officeholders are also municipal employees, towns must wrestle with the possible conflicts of interest that may arise when those responsible for town affairs also have influence over the municipal jobs they hold.
The upcoming round of Vineyard elections will feature several races that highlight the challenges municipal employees and voters face when they decide to run for public office, and the limits the state's conflict of interest law places on their public service. At least one town, Oak Bluffs, has imposed its own limits.
Which way, Mr. Wey?
A bylaw Oak Bluffs voters approved at a special town meeting on April 13, 2010, states, "No member of a Town board or committee shall hold a paid position with the Town which is answerable either directly or indirectly to the Board or Committee on which he or she serves."
Next month, Roger Wey, a former Oak Bluffs selectman and director of the town's Council on Aging (COA), will challenge incumbents Greg Coogan and Kathy Burton for one of two seats on the board of selectmen.
If elected in April, Mr. Wey will have to decide if he will keep the job that pays him an annual salary of $59,425, plus benefits. At the time he filed his nomination papers, Mr. Wey told The Times he would resign his position as director of the COA if he is elected. As a selectman, Mr. Wey would receive an annual stipend of $3,000, and if chairman, $4,500.
The Oak Bluffs selectmen hired Mr. Wey, the only finalist for the COA director's job, in December 2004. At that time, he served as the chairman of the Oak Bluffs selectmen and also as an elected member of the Dukes County commission. Mr. Wey said he would continue to serve on both boards and remain as the selectmen's chairman if hired as the COA director.
Town counsel advised that in order for Mr. Wey to remain on the board of selectmen, he must file a disclosure statement regarding his financial interest in the COA, that is, his salary, for the selectmen's approval. In addition, Mr. Wey was required to give up his selectman's salary and recuse himself from any votes pertaining to the Council on Aging.
Mr. Wey stepped down after seven terms as a selectman and did not seek reelection in 2009. That same year, Gov. Deval Patrick signed an ethics reform law, which made several amendments to the state's conflict of interest, open meeting, lobbying, and campaign finance laws. It was amended again in 2011.
Oak Bluffs makes it clear
Although the conflict of interest law was already on the books, Oak Bluffs selectman chairman Kathy Burton said Oak Bluffs added the provision to the town's bylaws in 2010, to define the issue clearly.
"Part of what we're trying to do in Oak Bluffs is tighten up policies and procedures; if you have everything in writing, there's no confusion," she said.
Speaking to the issue itself, Ms. Burton said it is hard for her to imagine how someone who works for or heads a town department could be impartial in making decisions that might affect his or her job.
"If you recuse yourself from votes on such matters, that's fine, but so much of what we do as selectmen overlaps," she pointed out. "How could you make any personnel, management or salary decisions as a selectman if you're part of that organization?"
Which board is boss?
In Tisbury, town health agent and former selectman Tom Pachico and Jonathan Snyder, a member of the town's finance and advisory committee (FinCom) who is a former corporate investment manager, will square off for one open seat on the board of selectman.
Tisbury does not have a separate bylaw regarding conflict of interest, since it is included under state laws, town clerk Marion Mudge said. However, the town does have a bylaw that prohibits a selectman from also serving in another elected office.
For example, if Mr. Snyder is elected selectman, he could not continue to serve on the FinCom, Ms. Mudge said. That will not be an issue, she added, because Mr. Snyder's term is up in April and he did not seek reelection to the FinCom.
Mr. Pachico has worked for the Tisbury board of health as town health agent for 19 years. He served three three-year terms as a selectman and also on several town and regional boards.
Mr. Pachico earns a salary of $77,986, including benefits and longevity pay. As a selectman he would receive an annual stipend of $3,000.
Ms. Mudge said she fielded many conflict of interest questions about Mr. Pachico's two roles during his tenure as a selectman.
"What people don't realize is that as a health agent, Mr. Pachico answers to the board of health, not the selectmen," she explained. "Because he's appointed by the board of health and answers to its members, it was deemed no conflict if he ran for selectman."
Tisbury's employees, including Mr. Pachico, belong to a municipal union. Their wages and benefits are negotiated through a contract ultimately approved by the selectmen. Voters approve the monies at town meeting.
"It used to be that any elected board that had employees was responsible for setting their wages," Ms. Mudge said. "Now that municipal employees are unionized, those employees are technically considered under the board of selectmen for union purposes. Mr. Pachico would have to recuse himself from any municipal employee union contract negotiations as a selectman."
She added that Mr. Pachico could not be appointed as building inspector, for example, because it is a position the selectmen oversee.
Conflict demands tough choice
An example of that situation led to a difficult decision in October 2010 for West Tisbury selectman Jeffrey ("Skipper") Manter, who is also a police sergeant.
Mr. Manter, a West Tisbury police officer since 1975, was one of four finalists selected for consideration for the job of police chief. The selectmen oversee the police department.
Selectmen Cynthia Mitchell and Richard Knabel wanted to know whether Mr. Manter could apply for a job offered by a board on which he was a member and whether he was eligible to serve as both police chief and selectman. The selectmen posed the questions to town counsel and suspended the search in the meantime.
Mr. Manter announced he would take a week to decide whether to resign from the selectmen to pursue the chief's job or remove his name from final consideration. Six days later he withdrew his name, and spared the town the expense of legal advice.
The law's evolution
A conflict of interest law has been included in Massachusetts General Laws under chapter 268A, "Conduct of Public Officials and Employees" since 1963, according to the State Ethics Commission website. The law governs what state, county, and municipal employees may do on the job, after hours or "on the side," as well as what they may do after they leave public service. The law also sets standards of conduct for all public employees.
Prior to 1978, the conflict of interest law was enforced solely as a criminal matter under the jurisdiction of the Attorney General and various local district attorneys. With the passage of a financial disclosure law in 1978, the State Ethics Commission was created and provided with the power to interpret and enforce the conflict of interest law and the financial disclosure law, according to its website.
The ethics commission now serves as the primary civil enforcement agency for those laws, and provides free legal advice and education about them.
Editor's Note: In a Letter to the Editor to be published in the March 22, 2012 print edition of The Martha's Vineyard Times, Tom Pachico, the former selectman who is a candidate for an open seat on the board of selectmen in this spring's election, writes: "After reading Janet Hefler\'s article, I feel I have to respond. I have not been in the union for eight years. I have never asked for, nor received the $3,000 stipend that the other selectmen receive. I could have asked for an exemption, so that I could get paid, but money was never a reason for me seeking the selectman's office. So in effect, instead of me getting $3,000 a year for nine years, the town saved $27,000 dollars. I also used a substantial amount of my vacation time to attend meetings on and off Island. As far as fair and honest goes, your article was neither."