June 19, 1989

FACTS:


You are a member of a state board (Board). Included in the
petitions before you is one by a developer/manager (Petitioner) who
was formerly a member of an athletic club of which you were also
a member more than ten years ago. You have neither seen nor have
been associated with the Petitioner for ten years, except for three
chance social meetings, and have no current financial or personal
relationship with him.


QUESTION:


Does G.L c. 268A prohibit your participation as Board member in
the matter affecting the above desribed Petitioner?


ANSWER:



No.


DISCUSSION:


As a member of the Board, you are a state employee for the
purposes of G.L. c. 268A. See, G.L. c. 268A, s.1(q). Two sections
of G.L. c. 268A regulate the scope of official participation
by state employees.


1. Section 6


Under s.6, you are required to abstain from participating as a
Board member in any Board proceeding affecting the financial
interest of either you, a member of your immediate family, a
partner, an organination in which you serve as an officer,
director, trustee, partner or employee, or any person or
organination with whom you are negotiating or have an arrangement
concerning prospective employment. The abstention requirement
recognizes that a state employee cannot be expected to remain loyal
to the public interest when matters affecting the financial
interest of certain personal relationships come before him for
decision.

On the other hand, we note that the General Court did not extend
the s.6 abstention requirements beyond matters affecting those core
relationships listed in s.6. See, St. 1986, c.12, s.1 [citizens
who serve in government cannot and should not be expected to be
without any personal interest in the decisions and policies of
government ...[s]tandards of conduct should separate those
situations of conslicting interest which are inherent in a free
society from those which are unacceptable]"). Accordingly, the
Commission has determined that s.6 does not apply to matters
affecting personal or business relationships which fall outside of
the relationships listed in s.6. See, EC-COI-83-12 (spouse of
state employee's sister-in-law is not an imediate family member);
EC-COI-83-34 (occasional attorney services do not create an
employee relationship); EC-COI-89-12 (hospital overseer is not an
officer, director, trustee or employee of the hospital). This same
conclusion would also apply to matters which affect friends or
former friends of a state employee. Assuming that you have no
ongoing or prospectrve business relationship with the Petitioner,
the mere fact that you were once friends does not require your
abstention from matters in which the Petitioner may have a
financial interest.


2. SectIon 23(b)


Section 23 prohibits a state employee from using his official
position to secure unwarranted privileges or exemptions of
substantial value to anyone, G.L. c. 268A, s.23(b)(2), and from
creating the appearance that anyone can improperly influence him
or unduly enjoy his favor in the performance of his official
duties, G.L. c. 268A, s.23(b)(3). These provisions place certain
safeguards on your official dealigs with past or current friends.

To dispel any possible appearance of undue favoritism towards
the Petitioner, you should publicly disclose to your appointing
official the relevant facts surrounding you relationship with
him.[1] You must also be guided by the standards of G.L. c. 268A,
s.23(b)(2) and treat the Petitioner's petition according to the
same objective procedural and substantive standards by which the
Board treats other similar petitions.

Insofar as the substantive provisions of G.L. c. 268A are
concerned, then, you may participate in the Board matter involving
the Petitioner's company. Whether Board members should be subject
to
Page 252

abstention standards stricter than those contained in c.
268A is a policy question which is beyond the scope of this opinion
and could only be addressed through legislative amendment or
through the implementation of supplementary standards of conduct
by the Board pursuant to G.L. c. 268A, s.23(e). We would also note
that, irrespective of the application of G.L. c. 268A, the alleged
bias of a state official can be addressed in the context of a
petition for judicial review of the agency's decision. See,
Attorney General v. Department of Public Utilities
, 390 Mass. 208
(1983); EC-COI-82-31.

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[1] We note that you have previously disclosed to the parties in
the Board proceeding these relevant facts.

End Of Decision