The conflict of interest law, G. L. c. 268A, is intended to prevent, among other things, self-dealing. Section 6 of the conflict of interest law generally prohibits a state employee (paid or unpaid, appointed or elected, full-time or part-time) from participating in any particular matter in which the state employee, an immediate family member, partner, or a business organization in which he or she has certain affiliations, has a financial interest.
A state employee generally may not act on matters affecting the financial interest of the state employee him or herself, his or her spouse and/or the parents, siblings and children of both the state employee and the spouse. In-laws who marry into the "immediate family" are not considered to be members of the immediate family.
Example: A sister-in-law, who is married to a state employee's brother, is not an immediate family member while the state employee's sister-in-law, who is his spouse's sister, is an immediate family member. Similarly, nieces, nephews, cousins and grandchildren are not immediate family members. (They are, however, kin and acting on matters involving kin may create the appearance of a conflict of interest. Section 23 of G.L. c. 268A addresses this.)
In determining if a state employee may act in matters involving a family member, the family member's financial interest must be considered.
Example: A particular matter before a state agency might affect the financial interest of the business organization that employs the mother of the state employee. That financial interest alone won't disqualify the employee from acting, however, unless the particular matter also affect's the mother's financial interests.
A state employee who is an officer, partner, director, trustee or employee of an organization or who is negotiating for prospective employment with a person or organization, in general, may not participate in matters affecting the financial interest of that person or organization. It does not matter if the business organization is a private, for-profit business or a non-profit organization. The phrase business organization also includes a county or municipality as well as their agencies. For instance, a state employee may not participate in a decision that affects a municipality's financial interest if he holds an elected or appointed position in the municipality.
Example: An employee of a state environmental agency who is interviewing for a position with a private firm whose contract he oversees must disclose in writing to his appointing authority the fact that he is involved is such negotiations and may not continue to oversee the contract.
Although the conflict of interest law does not define the term financial interest, the Commission has a long-standing interpretation of that phrase. The restrictions of the conflict of interest law apply in any instance when the private financial interests are directly and immediately affected or when it is reasonably foreseeable that the financial interests would be affected.
Example: A state employee who owns property abutting a state building project may have a financial interest in the project. The Commission presumes a financial interest in matters affecting abutting property.
The conflict of interest law generally prohibits any type of official action regardless of whether the financial interest is large or small and regardless of whether the proposed action would positively or negatively affect the private financial interest.
Example: A state engineer owns property abutting a proposed landfill. If the landfill is approved, it will negatively affect the value of the state engineer's property. The state engineer may not participate in the reviewing of proposals or discussions concerning the landfill.
Participating and Voting
Participation includes not only voting or deciding on a matter but also formal and informal lobbying of colleagues, reviewing, discussing, giving advice and/or making recommendations on particular matters. Therefore, a state employee will be deemed to have participated in the particular matter if he discusses the matter but abstains from the final vote or decision. Often, discussing, providing advice or making recommendations about a particular matter may have more of an effect than the employee's single vote or final decision. It does not follow, however, that if a state employee votes or makes a final decision without participating in any discussion or otherwise acting regarding the matter in question, that vote or decision will not amount to participation. Regardless of whether the vote tally is unanimous or split, voting constitutes participation. The decision to delegate a matter to a co-worker or to a subordinate also constitutes participation in the particular matter.
Example: A state board member who discusses the license application of the private corporation in which she holds a majority of shares but abstains from the final vote will nevertheless have participated through her discussing the license application, even though she abstained from voting.
The law includes an exemption from the general prohibition for appointed state employees. This exemption is not available to elected state employees.
An appointed state employee, whose duties would otherwise require him or her to participate in a particular matter, must make a written disclosure of the particular matter and the financial interest to his or her appointing authority. A copy must also be filed with the Ethics Commission. A state employee's appointing authority is not necessarily his or her immediate supervisor; the appointing authority is the official or board responsible for the state employee's appointment to his or her position.
Making an oral disclosure or making a written disclosure to an immediate supervisor who is not an appointing authority, a co-worker or a subordinate who is also involved in a matter is not sufficient disclosure.
After receipt of the written disclosure, the appointing authority then has the opportunity to take one of three steps:
- Assign the particular matter to another employee;
- Assume responsibility for the particular matter; or
- Make a written determination that "the interest is not so substantial as to be deemed likely to affect the integrity of the services which the commonwealth may expect from the employee."
Whether the state official receives the written determination rests solely in the discretion of the appointing authority. The Ethics Commission has no role in making the determination.
Like the disclosure, the determination must be in writing and must also be filed with the Ethics Commission where they are maintained as public records.