Section 20(b) Exemptions to the Conflict of Interest Law
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Watch the City of Gardner’s March 30, 2021 Finance Commitee meeting referenced in this most recnet Gardner Iron article on conflict of interest.
XXXVII April 18, 2021
The City Solicitor, John M. Flick, is asking the City Council to approve a Conflict of Interest (G.L. c. 268A) Exemption so that his own private business, and no other business, will be hired for all outside real estate title legal services that the City will ever need now, and in the future.
Flick is now asking for a Section 20(d) Exemption.
In the past, it has been under Section 20(b) of c. 268A.
Let’s look back at the Section 20(b) Exemption.
It is the duty of the City Solicitor to determine when and if the City is in need of outside legal services – regardless of which City Department might need them.
If the City Solicitor makes that determination, then it is the duty of the City Solicitor to choose the appropriate (competent, qualified and affordable) outside law business to provide these outside legal services to the City.
After the City Solicitor chooses the outside legal counsel, it is his duty, to oversee and supervise the outside legal counsel throughout the entire duration of that contract.
Take a gander at City Ordinance/Code 140 for a little background.
So, under the First Part of the Section 20(b) Exemption, it would seem that the City Solicitor can’t get the Exemption because he works for the City Department or Office which is the contracting agency obtaining the outside legal services.
Therefore, it would seem that the City can never obtain Flick Law Group, P.C. for the City’s outside legal real estate services if Flick wants the Section 20(b) Exemption to apply – unless the City’s policy now is to have Department Heads independently picking their own outside legal services (which would not jive with City Code 140).
But, what if we get creative and have some City Department or employee (other than the City Solicitor) sign the contract with Flick Law Group, P.C. for these outside legal services?
It doesn’t matter who you get to sign the contract, the Conflict of Interest Law focuses on who is actually choosing the outside business to provide the services.
It’s the awarding of the work to an insider – not the identity of the person signing the eventual contract – that is the focus of the inquiry.
Obviously, the purpose of the Conflict of Interest Law is to prevent the chooser from having a personal financial interest in the making of the choice of who gets chosen.
Therefore, under the First Part of the Section 20(b) Exemption it would seem that the City Solicitor’s private law business cannot be hired in any real estate transaction involving the City.
Unlike the First Part, the Second Part of the Section 20(b) Exemption has nothing to do with the contract in which the City Solicitor has the personal financial interest. Instead, the Exemption is not available to the City Solicitor if he takes part in any of the various general “activities” of the City Dept./Office which is involved in the transaction in question.
As pointed out above, it is a fact that the job duties and responsibilities of the City Solicitor require him to handle and review all legal contracts, issues and matters of every City Department. Legal contracts, issues, and matters are “activities.” The City Solicitor takes part in these “activities” on a regular basis, for some Departments more often than for others – but for all Departments and Offices, from time to time.
Whether it is to review or confirm some legal formality, compliance, drafting, omission, error, or consequence regarding a particular contract, matter or situation – the City Solicitor is involved in the activities of all City Departments. In fact, the City Solicitor must review and sign every City contract confirming that that has taken place – regardless of which Dept. or Office it comes from – and, again, that’s an “activity” of each Dept./Office in which the City Solicitor participates.
Therefore, under the Second Part of the Section 20(b) Exemption, it would seem that the Exemption would never be available for a City Solicitor with a personal financial interest.
The inapplicability of the Exemption is even more blatant when the matter involves the conveyance or acquisition of a City interest in real estate.
This is because the City Solicitor is required to directly participate in every real estate transaction involving the City of Gardner (including overseeing any outside legal counsel hired to provide outside legal services) – no matter which Dept. is actually involved in the transaction.
Stating the obvious, when a City Dept. is involved in a City real estate transaction, that is an “activity” of that Dept. in which the City Solicitor doesn’t just occasionally participate – but one in which he must, and is required to, directly participate in real time (like right now) – so the Second Part of the Exemption prohibits its applicability in Flick’s case.
But, Flick still has to satisfy the Third Part of the Section 20(b) Exemption.
This Third Part eliminates the Exemption for Flick because the one choosing and overseeing the outside legal counsel was himself (the Law Dept.) – and Section 20(b)(3) eliminates the Exemption if an employee of the Law Dept. is available to perform those services.
Since City Solicitor Flick was actually hiring himself to provide the outside legal services (as an employee of his own private business), then an employee of the Law Dept. (Flick himself) was available for the work to be done. In fact, Flick actually did the work himself – only not as City Solicitor but as an employee of Flick Law Group, P.C. Therefore, the Exemption was not available to Flick.
There must be some aspect or nuance of Section 20(b) that was available to the City Solicitor in the past that allowed him to have a personal financial interest in real estate matters involving the City, and I’m just not seeing it – because he went through with them nonetheless.
Next, we’ll look at the Section (d) Exemption – the one that Flick is seeking now.
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