November 16, 1987

FACTS:

You are the Chief Probation Officer of a District Court, Your
wife is also employed by the same District Court, You and your wife
were recently married, and you now supervise your wife.

You are interested in continuing to supervise your wife and in
complying with the conflict law. You contacted the State Ethics
Commission concerning the application of G.L. c. 268A, s.6 to your
situation. You were informed by informal Commission staff letter
that s.6 contains an exemption procedure which, if strictly
followed, would permit you to supervise your wife. Specifically,
you were informed that if you disclosed to your appointing official
and the Commission the relevant facts surrounding your wife's
financial interest in your supervision and if you received from
your appointing official a written determination that her financial
interest is not so substantial as to affect the integrity of
services which the state expects from you, you would be able to
participate in her supervision. You then indicated that the First
justice was your appointing official and have sought a written
determination from him pursuant to s.6.


Page 183


QUESTION:


Is the First justice of a District Court the appointing official
of a Chief Probation Officer for the purposes of G.L. c. 268A, s.6?


ANSWER:


Yes.[1]


DISCUSSION:


As a probation officer in a District Court, you are a state
employee for the purposes of G.L. c. 268A. Section 6 of G.L. c.
268A prohibits a state employee from participating [2] in any
particular matter[3] in which a member of his immediate family[4]
has a financial interest. By supervising your wife, you are
participating in matters in which she has a financial interest.
See, Commission Advisory No. 11. As applied to you, whenever
you are required to supervise your wife, you must therefore comply with
the abstention requirements of s.6 or seek an exemption under that
section.

The Section 6 exemption procedure can only be authorized by your
appointing official. The conflict of interest law states that a
state employee "shall advise the official responsible for
appointment to his position" in seeking an exemption under s.6.
"The phrase seems to refer generally to the official with the
statutory authority to make the appointment." Buss, The Conflict
of Interest Statute: An Analysis
, 45 B.U.Law.Rev. 299,362 (1965).
The phrase has also been interpreted to mean the state official
responsible for the employment of the state employee. Attorney
General Conflict Opinion No. 282, November 4,1964.

G.L. c. 276, s.83 states that". . . the justices of each other
district court . . . may appoint ... probation officers ...
provided further that any such appointment shall be reviewed by the
chief administrative justice of the trial court for compliance with
the Standards promulgated under s.8 of c. 211B." G.L.c. 211B, s.8
states, in pertinent part that:

any appointment that is governed by standards promulgated by
provisions of this section shall forthwith be certified in
writing for compliance with such standards to the office of
the chief administrative justice. The chief administrative
justice shall have the power to reject any such appointment
within 14 days after receipt of the certification of
compliance by the appointing authority but such power shall
be limited to non-compliance with the standards for
appointment.

It has been noted that the language of G.L. c. 276, s.83, combined
with that of G.L. c. 211B, s.8 reflects part of the confusion
within the court system over lines of authority and administrative
responsibility for the probation system.[5] Spanenberg Group,
Assessment of the Massachusetts Probation System, at 54 (October,
1987).

The official with the statutory authority to make the
appointment is clear, however. The First Justice of a District
Court selects his or her candidate for the position of chief
probation officer. This candidate's name along with the information
required under c. 211B, s.8[6] is forwarded to the Chief
Administrative Justice for review for compliance with personnel
policies and procedures. After the office of the Chief
Administrative Justice receives the above information, there is a
14 day period to approve or disapprove. This power is referred to
as the power to reject in G.L. c. 211B, s.8.

The Commission concludes, as a result, that a First Justice is
the appointing official of a Chief Probation Officer in that the
First justice is the state official affirmatively responsible for
the employment of the Chief Probation Officer. The Chief
Administrative Justice's rescission power, defined narrowly by
statute, does not appear sufficient to make him the official with
the statutory authority to make the appointment. The choice of the
First Justice as the appointing official is also consistent with
the purposes of the s.6 exemption process. Section 6 anticipates
that an appointing official will make a subjective decision
regarding the appropriateness of permitting a subordinate to
participate in a matter affecting a family member. "The official
making the determination may take into account the employee's
personal character. What might be too substantial an interest for
one state employee may be for another [insubstantial] .. ." Buss,
supra,
at 362. We regard the First Justice who oversees the conduct
of a probation officer in his or her court on a regular basis, to
be in a knowledgeable position to make a subjective decision
regarding the integrity of the probation officer.

---------------

[1] The Commission's conclusion is limited to the application of
G.L. c. 268A, s.6 to the Chief Probation Officer, and does not
purport to address the determination of an appointing official
either for other judicial employees or for the puroses of other
statutes.

[2] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county or municipal
employee, through approval, disapproval, decision, recommendation,
the rendering of advice, investigation or otherwise.

[3] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, contraversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property.

[4] "Immediate family," the employee and his spouse, and their
parents, children, brothers and sisters has a financial interest.

[5] Chief probation officers are also responsible to the
Commissioner of Probation.

[6] This information includes the candidate's personnel file, an
explanation of how the position became vacant and a copy of any
resignation which creates a vacancy; a certification that adequate
funding is available in the current fiscal year budget to fill the
position; the number of applicants for the position; a list

Page 184

of all applicants interviewed and a copy of the application and
resume of the final candidate, a written record indicating the
reason why these applicants who met the minimum requirements for
the position were not interviewed, a statement of the final
applicant's relationship or lack of relationship to any judicial
employee: a copy of all applications in which the pre-employment
consideration section was completed, a listing of all locations in
which the job was posted, a copy of the job posting (if the
position was advertised) a copy of the advertisement, (if the
position was not advertised) a certification that adequate funding
was not available, and the applicant interview and hiring record.

End Of Decision