930 CMR, § 6.23

Current through Register 1531, September 27, 2024

Section 6.23 - Exemption Permitting Persons Serving as Members of Public Boards Pursuant to a Legal Requirement That the Board Have Members With a Specified Affiliation to Participate Fully in Determinations of General Policy

(1)Purpose. The purpose of 930 CMR 6.23 is to permit persons serving as members of public boards pursuant to a legal requirement that the board have members with a specified affiliation to participate fully in determinations of general policy, and to make it easier to find persons with the specified affiliation who are willing to serve on such boards.

(2)Definition. For purposes of 930 CMR 6.23, a public board is any multi-member governmental body, including boards, commissions, councils, and similar entities.

(3)Exemption. This exemption applies where a public board is legally required by statute, executive order, regulation, ordinance, by-law, warrant article, or comparable legal requirement to have members who are affiliated with a specified entity, industry, constituency or stakeholder group.

(a) A person serving as a member of such a board does not violate M.G.L. c. 268A, § 4(c), 11(c), or 17(c), by participating as a board member in a determination of general policy, even if, in doing so, the board member gives the views of the entity, industry, constituency, or stakeholder group with which he is affiliated. A person serving as an uncompensated member of such a board may receive his or her usual compensation from other employment during the time spent serving the board as provided in 930 CMR 6.02(3), but otherwise remains subject to M.G.L. c. 268A, §§ 4(a), 11(a), and 17(a).

(b) A person serving as a member of such a board does not violate M.G.L. c. 268A, § 6, 13, or 19, by participating as a board member in a determination of general policy, even if the entity, industry, constituency, or stakeholder group with which he is affiliated has a financial interest in the determination. However, this exemption does not permit such a board member to participate in a determination of general policy that affects the financial interest of the member, the member's immediate family member or partner, a business organization in which the member is serving as an officer, director, trustee, partner, or employee, or any person or organization with whom the member is negotiating or has any arrangement concerning prospective employment, in a manner not shared with the entity, industry, constituency, or stakeholder group with which the board member is affiliated.

Example: The Forest and Wood Products Education and Development Center Advisory Board is required to have members who are affiliated with the Massachusetts Wood Products Manufacturers Association, the Massachusetts Wood Producers Association, and the Massachusetts Timber Harvesters Association. These members may give the views of the associations with which they are affiliated, and may participate in determinations of general policy in which those associations have a financial interest. However, such a member may not participate in any such determination that affects the financial interest of the member or his employer in a manner different from the way it affects the financial interests of the industry he represents, such as whether to recommend that land owned by the company that employs the member be protected from harvesting.

Example: A municipal Shellfish Advisory Board has been created to provide advice to the Board of Selectmen on policy issues related to shellfishing. The Advisory Board is required to have members who are currently commercial fishermen. A board member who is a commercial fisherman may participate in determinations of general policy in which he has a financial interest common to all commercial fishermen, but may not participate in determinations in which he alone has a financial interest, such as the extension of his own individual permits or leases.

Example: A state licensing board is required by statute to be comprised of seven members appointed by the Governor. One member must be an individual engaged in the operation of a school. The remaining six members must be licensees of the board. The board will be discussing a proposal to increase the continuing education requirements for all licensees. The proposed requirement will cost licensees additional time and tuition, and may increase the income of trade schools and teachers. The board member who is a school operator may participate because his financial interest is the same as that of other school operators, and the other licensee members may participate because their financial interest is the same as that of other licensees.

Example: A seven member education advisory council has been created to advise a state licensing agency about requirements with respect to curriculum, instructors, and staff for licensed trade schools. The advisory council is required to include one member who belongs to a trade school association, one member who owns and operates a private trade school, one member who teaches at a trade school in the private sector, and one member who teaches at a trade school in the public sector. The advisory council members may participate in determinations regarding requirements in which they have a financial interest common to the entities they represent, but may not participate in matters in which their interest is not shared with those entities, such as the extension of their own school's license.

930 CMR, § 6.23