Board of Selectmen of Avon vs. Kenneth L. Linder

Massachusetts Supreme Judicial Court1967-06-05

352 Mass. 581

Summary · law.co

Holding. The court overruled the selectman's demurrer and held that serving simultaneously as a paid newspaper correspondent actively reporting the board's meetings and deliberations while serving as selectman violates the conflict of interest statute and is incompatible with municipal office.

A board of selectmen sought a declaratory judgment against one of its members who was simultaneously employed as a paid newspaper correspondent covering the board's meetings and activities. The selectman had begun reporting on board proceedings while serving in office, taking notes during meetings for two newspapers circulated in the town. After the board's majority requested a formal opinion, the town counsel concluded that this dual role violated the state's conflict of interest statute, and the board voted to require the selectman to cease his newspaper work.

The court examined whether the selectman's conduct violated the conflict of interest law, which prohibits municipal officers from using their official position to secure unwarranted privileges or exemptions or from giving the appearance of doing so. The court determined that the selectman's simultaneous roles created precisely the kind of conflict the legislature intended to prevent, regardless of whether any actual wrongdoing occurred. The statute was designed to eliminate both wrongdoing and the mere appearance of impropriety, and the court emphasized that even minor departures from the prescribed standards should not be tolerated.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a municipal officer may simultaneously work as a paid newspaper correspondent reporting on the officer's board
Whether the conflict of interest statute prohibits conduct that creates the appearance of impropriety even absent actual wrongdoing
Whether a selectman's use of access to board information and proceedings for newspaper reporting constitutes an improper use of official position

Procedural posture

The board of selectmen brought a bill for declaratory judgment in Superior Court on agreed facts; the case was reported without decision on the selectman's demurrer.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Wilkins, C.J.

This bill for a declaratory decree under Gr. L. c. 231A arises from a controversy between the plain tiff board of selectmen of Avon and the defendant" Linder, one of its three members, as to whether he, while a selectman, can properly act as a paid newspaper correspondent reporting the plaintiff board’s meetings and deliberations. A judge in the Superior Court reported the case without decision on the defendant’s demurrer and on agreed-facts. We overrule the demurrer and pass directly to consider the merits. See Travers v. Grossman, ante, 182, 185, and cases cited.

The defendant has made an agreement to serve as a paid newspaper correspondent for the Enterprise Publishing Company, publisher of the Brockton Enterprise, a daily newspaper, and for the publisher of the Avon Messenger, a weekly newspaper, both sold and circulated in Avon. The ¿defendant’s name appears as a by-line at the top of news columns in each newspaper. The members of the plaintiff board in the performance of their official duties come into possession of confidential information involving the inhabitants and welfare of the town, and on occasion hold executive sessions, from which the press and public are excluded. The town boards and officials, including the plaintiff board, insert legal notices in the newspapers, and their cost is approved by the plaintiff board in signing the weekly warrant.

Since about August 11, 1966, the defendant has sat as a member of the plaintiff board at its meetings, and simultaneously has made notes and reports of the business ■transacted in his capacity as news correspondent. On August 25, the majority of the plaintiff board requested a formal opinion of the town counsel as to whether the defendant was acting in conflict of interest. On September 6, the town counsel, after consultation and concurrence with the office of the Attorney General, rendered an opinion that the defendant’s employment" as a correspondent at the meetings of the plaintiff board violates G. L. c. 268A, the Conflict of Interest Law, so called, § 23 (d). On Septem-bér 8, the majority of the plaintiff board at a regular meeting voted that the defendant cease employment as a news paper correspondent while a member of the board. The defendant has refused to comply.

Section 23 of G. L. c. 268A provides in material part: “No officer or employee of a state, county or municipal agency shall . . . (d) use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others or give the appearance of such action. ’ ’

The defendant as a member of the board of selectmen, the highest town office, is a municipal officer or employee within the meaning of the quotation. See Conley v. Ipswich, ante, 201. A mere reading of the statute shows that the defendant is plainly acting in violation of its prohibition. The matter is not too trifling for the law to notice. The Legislature found it advisable to enact a conflict of interest law. This was as much to prevent giving the appearance of conflict as to suppress all tendency to wrongdoing. Contrary to the defendant’s suggestion, the Legislature did not see fit to rely upon the restraints of decency, propriety, and fair play, upon the law of libel, or upon the power of the electorate to eliminate unworthy officeholders.

It is our duty to apply the expressed legislative policy. We do so in the conviction that each departure from the prescribed standards, however slight, becomes an entering wedge for more and greater departures.

We have confined our decisions to § 23 (d). In so doing, we have not felt bound by the construction of the town counsel that only subsection (d) was violated.

The demurrer is overruled. Let an entry be made that the simultaneous service of the defendant as a paid newspaper correspondent actively reporting the plaintiff board’s meetings and deliberations is incompatible with his service as selectman, and is violative of G. L. c. 268A, § 23 (d).

So ordered.