June 14, 1988

FACTS:


You anticipate appointment as a member of the Massachusetts
Museum of Contemporary Art Cultural Development Commission (MOCA
Commission). The MOCA Commission will be established by the City
of North Adams (City) to act on behalf of the City in entering into
contracts for the design, construction and operation of a museum
of contemporary art. See, St. 1988, c. 8. As proposed, the MOCA
Commission will Consist of seven members representing the public
inter-
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est without compensation. Appointments will be made by the Mayor,
with the consent of the City Council. The City Council envisions
that the establishment of a museum will involve collaboration with
Williams College (College), a private higher education institution
which currenlly operates a museum. It is also likely that employees
of the College will contract with the MOCA Commission for the
design and operation phases of the museum's development.

You have served as the Director of the College Museum of Art and
will continue to hold that position until July 1, 1988. After that
date you will become an adjunct professor and you will teach
courses at the College and receive compensation from the College
for your teaching activities. You state that your College
compensation will be limited to your teaching and will not be
attributable to any contracts between the College aod MOCA
Commission. Your primary employment will be as a Guggenheim
Foundation Director in New York City.


QUESTION:


Does G.L. c. 268A permit you to serve as a MOCA Commission
member while also serving as a teacher at the College and as the
Director of the Foundation?


ANSWER:


Yes, subject to the limitations described below.

DISCUSSION:


A. Jurisdiction


The MOCA Commission was established pursuant to St. 1988, c. 8,
an Act Assisting the City of North Adams in the Development of the
Massachusetts Museum of Contemporary Art. Under c. 8, the
Commonwealth is authorized to grant 35 million dollars to the City
to acquire land and buildings to be used for the construction of
the Museum. The City, in turn, has created and appointed members
to the MOCA Commission to act on its behalf in carrying out the
purposes of the act, pursuant to St. 1988, c. 8, s.1. In view of
the accountability of the MOCA Commission to the City, and the
authority which the Commission will exercise on behalf of the City,
the MOCA Commission is a municipal agency of the City for the
purposes of G.L. c. 265A See, EC-COI-83-74. Upon your appointment
as one of the seven members of the MOCA Commission, you will be
subject to the four provisions of G.L. c. 268A which apply to
municipal employees.


B. Substantive Restrictions

1. Section 19


As a municipal employee, you must abstain from participating in
any contract, decision, application or other particular matter in
which a business organization which employs you has a financial
interest. As a visiting teacher at the College, you will be
employed by a business organization for the purposes of G.L. c.
268A, s.19. See, EC-COI-88-4 (corporations, whether established on
a for-profit or non-profit basis, are business organizations under
s.19). Therefore, absent qualification for an exemption to s.19,
you are required to abstain from participating as a MOCA Commission
member in any particular matter in which the college has a
financial interest.

One exemption available to you which would permit your
participation in matters affecting the College is contained in G.L.
c. 268A, s.19(b) (1). Following your disclosure of the relevant
financial interests to your appointing official, that official may
determine that the College's interest is not so substantial as to
be deemed likely to affect the integrity of the services which the
city expects from you.[1] The same exemption procedure would also
be required if matters affecting the financial interests of the
Guggenheim Foundation came before you on the MOCA Commission.


2. Section 17


This section places restrictions on your activities on behalf
of non-City parties. Specifically, s.17 prohibits you from
receiving compensation from or acting as agent of the College in
connection with any particular matter in which either the MOCA
Commission or any agency of the City is a party or has a direct and
substantial interest. In view of your statement that your
activities for the College will be limited to teaching, and that
you will not be working for the College on any aspect of the MOCA
Commission, this section should not pose problems for you. You
should keep the principles of s.17 in mind, however, with respect
to your Guggenheim assignments should those assignments involve the
MOCA Commission. For example, you may not assist the Foundation in
applying for contracts with the MOCA Commission.


3. Section 20


Under s.20, a municipal employee may not have a financial
interest, directly or indirectly, in a contract made by any agency
of the same municipality. As applied to you, s.20 prohibits you
from having a financial interest in any contract awarded the MOCA
Commission. For example, if the College were awarded MOCA
Commission contracts, your college compensation could not be
attributable to those contracts. For similar reasons, your
Guggenheim compensation may not be attributable to contracts which
the Foundation may have with the MOCA Commission.

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4. Section 23(b)(2)


This section establishes standards of conduct for municipal
employees. Under s.23, a municipal employee may not use his
official position to secure for anyone an unwarranted privilege of
substantial value. To the extent that current or former college
employees may be performing services for the MOCA Commission,
issues under s.23 may come into play in your exercising your
official responsibilities as a MOCA Commission member. To comply
with s.23(b) (2), you may not accord such employees special
treatment, and you must evaluate their work by the same objective
standards by which other employees and applicants are evaluated.

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* Pursuant to G.L. c. 268B, s.3(g), the requesting person has
consented to the publication of this opinion with identifying
information.

[1] We understand that the city Council, in it's proposed ordinance
relating to the MOCA Commission, intends to grant written
determinations on a limited basis to College employees
pursruant to G.L. c. 268A, s.19 thereby permmiting your participation
in some matters affecting the College. we would note, however, that the
determination, in order to be effective, must be made by your
appointing official. See, EC-COI-87-41. Because it appears that
yow appointing official under the proposed ordinance is the Mayor,
rather than the City Council we believe that the Mayor is the
appropriate official to grant exemptions under s.19(b)(1).

End Of Decision