Advisory 05-05: The Rule of Necessity
If an elected member of a town or city board has a conflict of interest with respect to a matter before the board that involves his own financial interest or that of a partner, an immediate family member, a business organization with which the board member has certain affiliations, or a person or organization with whom the board member is negotiating or has any arrangement concerning future employment, that member will be disqualified from participating as a board member in that matter.1/ In some cases, especially when more than one member is disqualified, a board cannot act because it does not have a quorum or some other number of members required to take a valid affirmative vote. (If the number for a quorum is not set by law, a quorum is generally a majority of the board members.) In these circumstances, the board may be able to use the rule of necessity to permit the participation of the disqualified member(s) in order to allow the board to act. Individual elected officials, such as the mayor of a municipality or a constitutional officer, also may be able to use the rule of necessity in order to carry out legally-required actions that would otherwise be barred by the conflict of interest law.
The rule of necessity is not a law written and passed by the Legislature. Rather, the rule of necessity was developed by judges who applied it in their court decisions. The rule of necessity may only be used as a last resort. The rule should be used only upon prior written advice from town or city counsel because improper use of the rule could result in a violation of the conflict of interest law.
The rule of necessity works as follows:
1. When used by an elected board member, the rule of necessity may be used only when an elected board is legally required to act on a matter and it lacks enough members to take valid official action solely due to board members being disqualified by conflicts of interest from participating in the matter.
Example: A five-member elected board has a meeting and all members are present. Three of the five members have conflicts in a matter before the board in which the board is legally required to act. Three members are the quorum necessary for a decision. The two members without conflicts do not constitute a quorum. The board cannot act. The rule of necessity will permit all members to participate in that matter.
Example: A five-member elected board has a meeting involving a matter in which the board is legally required to act and four members are present (one member is sick at home). Two of the four present members have conflicts. A quorum is three. The one member who is sick at home does not have a conflict. The rule of necessity may not be used because, even though a quorum of the board which is able to act is not present at that particular meeting, there is a quorum of the board which is able to act. The absence of one member does not permit the use of the rule of necessity.
Example: A five-member elected board has a meeting involving a matter in which the board is legally required to act and all members are present. One member has a conflict and is unable to participate. The vote is a two-to-two tie. The rule of necessity may not be used to break the tie. In general, a tie vote defeats the issue being voted on. (Stated differently, a tie vote will maintain the status quo.)
Example: A five-member elected board has a meeting and all members are present. A quorum is three. However, one agenda item, on which board action is legally required, needs four votes, rather than the usual simple majority, for an affirmative decision. Two of the board members have conflicts. Although a quorum is available, the required four votes needed for this particular matter cannot be obtained without the participation of one or both of the members who have conflicts. The rule of necessity may be invoked and all five of the board members could participate.
If one or more members of an elected board have ”appearances” of conflicts of interest that can be dispelled by making a written disclosure, the rule of necessity may not be invoked. Section 23(b)(3) of the conflict of interest law prohibits a public official from acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that the public official is likely to act or fail to act as a result of kinship, rank or position. It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his or her appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.
Example: One member of a three-member elected board has a daughter who is a candidate for a police officer position. That board member cannot participate in the board’s hiring decision because his daughter is an immediate family member and she has a financial interest in the matter. A second member has a niece who is a candidate for the same position. Because a niece is not “immediate family,” the second member can make a disclosure about his niece to dispel the appearance of a conflict of interest and may then participate in the matter. Thus, the three-member board has a quorum and is able to act and the rule of necessity may not be invoked.
2. Before invoking the rule of necessity, every effort must be made to find another board or other authority in the municipality with the legal power to act in place of the board that could not obtain a quorum due to conflicts of interest. (Municipal counsel should be consulted to identify another municipal board or authority to act.)
3. While the absence of one or more board members is generally not sufficient cause to invoke the rule of necessity, when a board is legally required to take action by a certain time and is unable to do so because of the lack of a quorum, the rule of necessity may be invoked.
Example: A statute requires selectmen to approve payroll warrants on a weekly basis. One selectman of a three-member board is absent and the board cannot otherwise obtain a quorum due to the disqualification of one selectman whose immediate family member works for the town. The rule of necessity may be invoked.
4. The rule of necessity should be invoked by one or more of the otherwise disqualified members, upon advice from town or city counsel or the State Ethics Commission.
5. If it is proper for the rule of necessity to be used, it should be clearly indicated in the minutes of the meeting that as a result of disqualification of members due to conflicts of interests, the board lacked a sufficient number of members necessary to take a valid vote and, as a last resort, that all those disqualified may now participate under the rule of necessity. Each disqualified member who wishes to participate under the rule of necessity first must disclose publicly the facts that created the conflict.
Example: Two members of a three-member elected board have conflicts of interest that prohibit them from participating in a matter involving property owned by a private school for which they serve as trustees. No other board exists which can act on the matter before the board. After consulting with town counsel, one of the board members with a conflict should invoke the rule of necessity and direct that it be included in the minutes. Both of the board members who had been prohibited from participating may then do so. Prior to such participation, however, each must disclose the fact that they serve as trustees and may then participate in the matter.
It should be noted that invoking the rule of necessity does not require all previously disqualified members to participate; it merely permits their participation.
While the rule of necessity is most commonly invoked by elected multi-member boards, it is also applicable to individual elected officials, such as the mayor of a municipality, or a constitutional officer. For an individual elected official to be able to use the rule of necessity, the same requirements explained above apply: the official must be legally required to act on a matter in which he is disqualified by a conflict of interest from acting, and there is no one else legally qualified to act in that matter. In that situation, the individual elected official may invoke the rule of necessity to the minimum extent necessary to allow him to take the required actions otherwise barred by the conflict of interest law. If the legal duty to act permits the official to delegate that duty, then the official may invoke the rule of necessity for the limited purpose of designating another person to carry out the required action. If he delegates, he cannot otherwise participate in the matter. However, if the legal duty to act is non-delegable, then the individual elected official may invoke the rule of necessity to take all actions required legally of him. Any such invocation of the rule should be documented by the elected official in a writing filed publicly with the municipal clerk, or, if the elected official holds a state or county office, with the State Ethics Commission.
Example: The General Laws confer upon a Mayor the sole power to act as her City’s bargaining representative for purposes of negotiating a collective bargaining agreement with the City’s firefighters, but permit the Mayor to select a “designated representative” to negotiate such an agreement in her place. The Mayor’s spouse is a firefighter who has a financial interest in his union’s collective bargaining agreement with the City. Section 19 of the conflict of interest law would prohibit the Mayor from participating in the firefighters’ collective bargaining agreement. The Mayor may invoke the rule of necessity to designate an alternate to serve as the City’s collective bargaining representative with the firefighter’s union. If she does so, the Mayor cannot otherwise participate in the matter.
Example: The General Laws require a Mayor to take a variety of actions with respect to making changes to the health insurance coverage that the City offers to its subscribers, and do not contain any provision authorizing anyone to act in the place of the Mayor or permitting the Mayor to delegate those duties. The Mayor himself is a subscriber to his City’s health insurance coverage, and would be disqualified by Section 19 of the conflict of interest law from participating in matters relating to the City’s coverage, because he has a financial interest in those matters. The Mayor may invoke the rule of necessity to permit him to take all actions required legally of him in his official capacity under the General Laws with respect to changes to the City’s health insurance coverage.
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For more information about the state conflict of interest and financial disclosure laws (G.L. c. 268A & c. 268B), including the subjects discussed in this Advisory, please contact:
State Ethics Commission One Ashburton Place, Room 619 Boston, MA 02108 (617) 371-9500