March 12, 1992

FACTS:


You are the Secretary to the Board of Trustees of Roxbury
Community College ("Roxbury" or "the College"). You have submitted,
on Roxbury's behalf, the following facts. In making this request,
you have waived confidentiality. We also understand that this
request has been submitted to us with the knowledge and permission
of Dr. Hubert Jones.

In the wake of the termination of the previous president of
Roxbury, the Roxbury Trustees, while searching for a new president
for the College, believe it incumbent upon them to take advantage
of this interim period to undertake an independent and professional
assessment of the policies, operations of, and educational programs
offered at Roxbury. In order to accomplish those tasks, the
Trustees have decided to appoint an Acting President. Several
candidates, including Dr. Hubert Jones of Boston University, either
applied for the position or were brought to the attention of the
Board as qualified and interested in the position. Roxbury's
Trustees reviewed the submitted resume and interviewed two
candidates, one of whom was Dr. Jones.

You inform us that Dr. Jones is the Dean of the Boston
University Graduate School of Social Work and a professional
educator and college administrator with a long and distinguished
record of achievement and accomplishment in the fields of education
and educational administration. Dr. Jones also shares the Roxbury
Trustees' view that the College should take advantage of this
interim period to engage in a thorough-going self-study and to take
steps to correct any misdirection or other problems in mission,
policies, administration or operations that may be found to exist.

The Roxbury Trustees, finding Dr. Jones to be the candidate
best able to undertake the work just described for the College,
offered him the position of Acting President. Dr. Jones then
obtained a paid leave of absence from his present employer, Boston
University, and accepted the position. We understand that Dr. Jones
has no written contractual right to take a paid leave of absence
from Boston University. However, Boston University has, from time
to time, granted paid leave in the past to certain of its employees
on a selective basis. We also understand from you that Dr. Jones'
paid leave of absence was granted by Boston University prior to his
negotiations over the details of his employment arrangement with
Roxbury, but that Boston University was aware of the reasons why
Dr. Jones sought the paid leave.

The arrangement worked out between the Roxbury Trustees and
Dr. Jones is as follows. For a period of several months, Dr. Jones
will serve as Acting President of Roxbury while on a paid leave of
absence from his position of Dean of the Graduate School of Social
Work at Boston University. During this time, Dr. Jones will work at
his Roxbury responsibilities at least four days per week, and he
will be available to Boston University for any matters which may
arise in connection with the Graduate School of Social Work up to
one day per week. Dr. Jones will serve at Roxbury on a pro bono
basis, not receiving any salary or benefits from Roxbury, other
than reimbursement for expenses incurred in the course of his
duties for Roxbury. It is understood and agreed that,
notwithstanding the paid aspect of his leave from Boston
University, Dr. Jones will serve as Acting President of Roxbury as
if he were a full-time employee of Roxbury, with his full focus and
loyalty to the College. Thus, as Acting President of Roxbury, Dr.
Jones will not be acting in any capacity relating to Boston
University, nor will Boston University or any other personnel of
the University have any role in Dr. Jones' position as Acting
President or the policy and management of the affairs of Roxbury,
except as may be expressly approved by the Roxbury Trustees. (You
inform us that from time to time over the years, Boston University
personnel, as well as personnel from other area colleges and
universities, have consulted with or advised Roxbury on various
matters.) Finally, Dr. Jones' service at Roxbury will be at the
pleasure of the Trustees of the College. The Trustees retain the
right to terminate Dr. Jones' services at any time. These terms and
conditions were negotiated between the College's Trustees and Dr.
Jones without input from Boston University.

Dr. Jones has served as a Trustee of the Roxbury Community
College Foundation. He has stated his intention to resign from the
Foundation Board as soon as his appointment as Acting President of
Roxbury is approved. He has so notified the Foundation Board, which
understands and also supports the arrangement. Accordingly, Dr.
Jones has not asked the Commission to consider what effects, if
any, his membership on the Foundation would have on him under the
conflict of interest law while serving as Acting President of
Roxbury.

Page 378

The College does not offer any program in competition with the
programs of Boston University's Graduate School of Social Work.
Moreover, the College is not aware of any pending proposals that
would arise during Dr. Jones' limited period of service for the
College that would conflict with programs of Boston University.
Further, during the period of his service as Acting President of
Roxbury, Dr. Jones would not participate in any negotiations with
any state agencies on behalf of Boston University.

In addition, Boston University has disclosed to this
Commission that a wholly-owned subsidiary has a contract with
Roxbury to operate Roxbury's bookstore. We have been advised that
the contract, by its terms, will not be up for renewal or
consideration during Dr. Jones' tenure as Acting President. In any
event, we have been informed that Dr. Jones will not participate,
as Acting President, in any discussions or actions which concern
that contract or the bookstore.

The Commission has conducted no independent investigation of
the facts. However, we understand that Boston University concurs
with the facts as described herein by you on Roxbury's behalf.


QUESTION:


Is the proposed arrangement between Dr. Jones and Roxbury
Community College permissible within the confines of the conflict
of interest law?


ANSWER:


Yes, provided that a statute or regulation authorizes the
arrangement. In addition, certain other restrictions are applicable
to Dr. Jones as described herein.


DISCUSSION:


In his capacity as Acting President of Roxbury Community
College, Dr. Jones would become a "special state employee" as that
term is used in the conflict of interest law.[1] As such, certain
provisions of G.L. c. 268A, the conflict of interest law, would
become applicable to Dr. Jones, as discussed below.[2]


Section 4


Except as otherwise provided by law for the proper discharge
of official duties, s. 4 of c. 268A prohibits a state employee from
acting as agent or attorney for, or being compensated by, anyone
other than the Commonwealth in relation to any particular matter[3]
in which the Commonwealth or a state agency is a party or has a
direct and substantial interest. As to special state employees,
this section will apply to only those matters in which he
participates[4] as a state employee, or which are under his
official responsibility[5] as a state employee, or which are
pending in his agency. This last restriction applies only if he
serves as a special state employee for more than sixty days in any
consecutive period of three hundred and sixty-five days. See
EC-COI-91-5; 85-49
.

Section 4, in brief, is designed to prohibit divided
loyalties. In other words, a state employee is a state employee
first and foremost and owes a duty of loyalty to the Commonwealth.
Consequently, s. 4 is designed to prohibit an individual from
splitting his loyalties between a state job and a private interest.
See generally EC-COI-90-12; 90-16; see also Buss, The Massachusetts
Conflict of Interest Statute: An Analysis
, 45 B.U.L. Rev. 299, 322
(1965) (whenever a person is both a private and a public employee,
"[t]he appearance of potential impropriety is raised - influence
peddling, favoring his private connections, and cheating the
government. Whether or not any or all of these evils result,
confidence in government is undermined because the public cannot be
sure that they will not result").

This section has two pertinent applications to Dr. Jones'
arrangement. First, Dr. Jones, as a special state employee, cannot
represent (whether or not for compensation) Boston University, or
any non-state third party, before any state agency if the matter on
which he is personally appearing is one in which he participates as
Roxbury's Acting President, or one which falls within his official
responsibility as Roxbury's Acting President, or one which is
pending in Roxbury (provided that the sixty day period is met). You
should know that "personally appearing" includes not only physical
appearances, but also telephone contact, correspondence, or any
contact made with the intent to influence. EC-COI-87-27.

Second, and more critical to the entire proposed arrangement
itself, Dr. Jones cannot receive compensation[6] from Boston
University, or any non-state third party, "in relation to" his pro
bono services at Roxbury because the Commonwealth has a direct and
substantial interest in who is chosen to serve as Roxbury's
President or Acting President. The concern is that Dr. Jones might
feel beholden, first and foremost, to the

Page 379

private employer who is continuing to pay his salary (Boston
University), at the expense of his public employer (Roxbury).

You maintain that the restrictions of s. 4 do not apply to the
present arrangement because Dr. Jones' paid leave was granted by
Boston University "by virtue of his tenure and seniority at the
institution and his agreement to be available to the School of
Social Work on a minimal but on-going basis throughout the leave.
n It is clear, however, that Dr. Jones has no specific contractual
or other entitlement to a paid leave of absence. Consequently, we
must conclude that absent a prior written policy or contractual
arrangement which explicitly establishes the conditions under which
Boston University employees are entitled to take a paid leave of
absence, Dr. Jones' paid leave case was granted "in relation to" a
particular matter in which the Commonwealth is a party or has a
direct and substantial interest.

Any other determination in the present case would mean that
the Commission, in all similar future cases, would be required to
determine the subjective intention of the parties who seek to
create such arrangements. In other words, we would have to
determine whether paid leave was given in relation to the state
employee's work on a case-by-case basis, necessarily expending
limited staff resources to investigate all of the circumstances
surrounding the proposed arrangement. On the other hand, by
requiring that paid leave policies be established in writing and in
advance of a request for such leave, we can establish a
standardized way to review all future situations on an equal basis.
That review could then clearly establish whether a given paid leave
was granted in relation to the state services to be provided.[7]

Consequently, because Boston University has no prior written
policy which clearly articulates the conditions under which Dr.
Jones is eligible for a paid leave, we must find that the above s.
4 analysis is applicable. Therefore, the contemplated arrangement
is prohibited by s. 4 because Boston University would be paying Dr.
Jones compensation in relation to his services at Roxbury.

Notwithstanding the above, however, s. 4 provides that the
arrangement would be permissible if it were "as provided by law for
the proper discharge of official duties." In other words, if Dr.
Jones' arrangement with Boston University is authorized by statute
or regulation, s. 4 would not prohibit it. See EC-COI-84-119
(enabling statute contemplated the type of employment arrangement
proposed whereby a private corporation would provide the services
of one of its employees to a state agency and would continue to pay
his salary and benefits); EC-COI-88-5 (regulation can substitute
for statutory requirement that an arrangement be "as provided by
law").

In EC-COI-88-5, this Commission recognized that the "as
provided by law" language of s. 3 can be met by the promulgation of
a regulation. Similarly, we hold here that the "as provided by law"
language of s. 4 can also be met by a regulation duly promulgated
by a governmental agency authorized to do so.

For example, a regulation which would authorize the
contemplated arrangement as "provided by law for the proper
discharge of official duties" might include the following:

the community colleges, from time to time as necessary to
carry out and discharge their official duties, may appoint
volunteer administrative and/or other personnel who shall
receive no compensation from the Commonwealth; provided,
however, that such volunteer personnel may receive
compensation from their private employer, if any, for the
period of time during which they are providing voluntary
services the Commonwealth.[8]

Accordingly, if an appropriate statute or regulation
authorizes the proposed voluntary arrangement -- that is, Dr. Jones
continues to receive compensation from Boston University while
providing voluntary services at Roxbury -- s. 4 would not prohibit
the proposed arrangement on the terms described above.[9]

Finally, assuming that Dr. Jones' arrangement is permissible
as described above, other provisions of the conflict of interest
law will apply to Dr. Jones.


Section 6


Section 6 prohibits a state employee from participating in a
particular matter in which he, an immediate family member, or a
business organization in which he is serving as an officer,
director, trustee, partner or employee has a direct or reasonably
foreseeable financial interest. Such a financial interest can be of
any size and may be either positive or negative.

Page 380

This section would prohibit Dr. Jones from acting in his state
position at Roxbury in any matter which could affect Boston
University's financial interests. You have advised the Commission
that Dr. Jones will not so participate, including matters involving
Roxbury's bookstore or its contract with a wholly-owned Boston
University subsidiary to operate that bookstore. If, however, such
a matter should come before him, he is advised that he must
disclose the nature of the matter and the financial interest to the
State Ethics Commission and his appointing authority (the Board of
Trustees). The Board must then either (i) assign the matter to
another employee; (ii) assume responsibility for that matter
itself; or (iii) make a written determination that Boston
University's interest is not so substantial as to be deemed likely
to affect the integrity of the services the Commonwealth may expect
from Dr. Jones. See EC-COI-85-32. Both the disclosure and the
determination must be filed with this Commission as public
documents. G.L. c. 268A, s. 6(a)(3); EC-COI-9-12; 9-16.


Section 23


Finally, there are several sections of s. 23 of which Dr.
Jones should be made aware. First, s. 23(b)(2) prohibits a state
employee from using or attempting to use his official position to
secure for himself or others unwarranted privileges or exemptions
of substantial value ($50 or more) which are not available to
others similarly situated.

This section would, for example, prohibit the use of public
resources to benefit a private interest. Also, in making any
official decisions, he must keep separate his own private
interests, i.e., that Boston University is continuing to pay him
during his leave of absence. See EC-COI-91-3. He may not use state
time, personnel, facilities, equipment (telephones, copiers, fax
machines), titles, etc. in conducting a private business, and must
arrange his schedule with his private employer, Boston University,
so that it does not conflict with his responsibilities at Roxbury.
EC-COI-91-6; 91-7. For example, he must use care that, in the event
of an emergency at Boston University which demands his attention,
Dr. Jones not forego his obligations at Roxbury in order to respond
to Boston University's needs. He may, of course, work on such
matters on his own time.

Section 23(b)(3) prohibits a state employee from acting in a
manner which would cause a reasonable person to conclude that any
person could improperly influence or unduly enjoy his favor in the
performance of his official duties. This appearance of a conflict
of interest can be dispelled, however, by making a full written
disclosure to the appointing authority concerning the facts of the
matter. Nothing in your letter raises an issue under this section
at this time.

In addition, s. 23(c) prohibits a state employee from
disclosing or using confidential information gained on his state
job for a private benefit. Confidential information is any
information which cannot be obtained through a public records
request.

You should also be aware that s. 7 of c. 268A prohibits a
state employee from having a direct or an indirect financial
interest in a contract made by a state agency, unless an exemption
applies. For example, Dr. Jones, as a special state employee at
Roxbury, cannot provide any compensated services to other state
agencies (whether on his own or through Boston University), unless
he first complies with an exemption found in s. 7. Two sub-sections
in particular, s. 7(d) and s. 7(e), apply to special state
employees, although other exemptions may also apply. Nothing in
your opinion request raises an issue under this section at this
time. Please renew your opinion request if you seek further
guidance on this section.

Finally, certain restrictions will arise under G.L. c. 268A,
s. 5 after Dr. Jones completes his services at Roxbury. He should
renew his opinion request if he has any specific questions
concerning s. 5.

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

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

[1]"Special state employee," a state employee:

1. who is performing services or holding an office, position,
employment or membership for which no compensation is
provided, or

2. who is not an elected official and (a) occupies a position
which, by its classification in the state agency involved or
by the terms of the contract or conditions of employment,
permits personal or private employment during normal working
hours, provided that disclosure of such classification or
Page 381

permission is filed in writing with the state ethics
commission prior to the commencement of any personal or
private employment, or (b) in fact does not earn compensation
as a state employee for an aggregate of more than eight
hundred hours during the preceding three hundred and
sixty-five days. For this purpose compensation by the day
shall be considered as equivalent to compensation for seven
hours per day. A special state employee shall be in such a
status on days for which he is not compensated as well as on
days on which he earns compensation. G.L. c. 268A, s. 1(o).

Dr. Jones' status as a special state employee results from
paragraph (2)(a), above. Accordingly, a proper disclosure of such
classification or permission must be filed with this Commission. If
you so choose, we can treat your opinion request as the appropriate
disclosure.

[2] You should also be advised that the reporting requirements
of G.L. c. 268B, s. 5, the financial disclosure law, will be
applicable to Dr. Jones if he serves more than thirty days in any
calendar year in certain designated major policy-making positions,
including the Acting Presidency of Roxbury. He may wish to contact
the Commission's Financial Disclosure Division for more detailed
information as to his obligations and rights under c. 268B.

[3]"Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, 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. G.L. c. 268A, s. 1(k).

[4] "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. G.L. c. 268A, s. 1(j).

[5] "Official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action. G.L. c. 268A, s. 1(i).

[6] "Compensation," any money, thing of value or economic
benefit conferred on or received by any person in return for
services rendered or to be rendered by himself or another. G.L. c.
268A, s. 1(a).

[7] We emphasize that a written policy would not be required
in those situations where a private employer intentionally seeks to
fund a state position by supplying one or more of its employees to
a governmental agency for an interim period of time. In that case,
it is clear that the restrictions of s. 4 will apply and that a
statute or a regulation is needed to authorize the private
compensation. See EC-COI-84-119. On the other hand, where the
parties maintain that paid leave is not being granted "in relation
to" the government services to be provided, a written paid leave
policy or contractual arrangement must have been previously
established by the employer if the Commission is to find that s. 4
does not apply. The Commission may, however, later determine that
a given paid leave policy or contractual arrangement does not
protect the compensation from the restrictions of s. 4.

[8] This Commission will make its staff available to Roxbury
or HECC in order to provide further guidance as to the contents of
any regulation issued pursuant to this opinion, and we would
encourage you to use this method of working within the confines of
s. 4. Roxbury must determine, of course, whether it, HECC, or some
other entity, is empowered to promulgate an appropriate regulation
which would encompass the proposed arrangement.

[9] We conclude, however, that G.L. c. 15A, s. 22, as
appearing in St. 1991, c. 142, s. 7, an amended statute which
established the Higher Education Coordinating Council (replacing
the Board of Regents) (HECC), would not provide the necessary
statutory relief required in the present case.

Specifically, s. 22 of c. 15A states that:

[e]ach board of trustees of a community college or state
college shall be responsible for establishing those policies
necessary for the administrative management of personnel,
staff services and the general business of the institution
under its authority.

We find that s. 22 is not specific enough to justify a
reliance on it for purposes of authorizing the contemplated

Page 382

arrangement "as provided by law," because it does not reflect
explicit legislative authorization of this sort of arrangement.

End Of Decision