December 14, 1994

FACTS:


You are seeking an opinion on behalf of a member of the board
of trustees ("Board") of a state college ("College").

The College is a state agency of higher education, created and
placed under the control of its Board by statute. The statute
gives broad authority to the Board

Page 603


by granting to it "all authority, responsibility, rights,
privileges, powers and duties customarily and traditionally
exercised by governing board of institutions of higher learning."
Id. This section further provides that "[i]n exercising such
authority, responsibility, powers and duties said board shall not
in the management of the affairs of the university be subject to,
or superseded by, any other state agency, board, bureau,
commission, department or officer, except as provided" by law
(cites omitted). Two members of the Board shall be full-time
students elected by the student body, and 17 members shall be
appointed by the Governor. At least five such gubernatorial
appointees shall be alumni, and one shall be a representative of
organized labor. Members of the Board serve without compensation
and are special state employees. If any member is absent for four
regular meetings in any calendar year, exclusive of July and
August, his office as member of the Board shall be deemed vacant.
Upon notification by the chairperson to the Governor that a vacancy
exists, the Governor shall appoint a new member from a list of
names provided by the public education nominating council
established by statute.

The Board has oversight responsibilities for all programs
within the College. Board members will be involved in discussions
and meetings and will ultimately vote on the future of one campus
facility ("the Facility"). Preliminary discussions have begun
regarding the possible merger of the Facility with one or more area
private corporate entities ("private entities").

One member of the Board is also an uncompensated member of the
board of directors of a private corporation ("the Corporation").
The Corporation is also considering possible affiliations with the
same private entities. If the Corporation affiliates with one
private entity, it could be considered a competitor of the
Facility. Discussions at Board meetings and at the Corporation's
board meetings may involve information regarding possible mergers
and affiliations by these respective boards with private entities.


QUESTIONS:

1. Does s.6 of the conflict law prohibit the Board member
from participating in Board meetings, discussions or votes
concerning the possible merger or affiliation of the Facility
with the private entities described above?

2. If so, does s.6 require that the Board member abstain and
notify the Governor, his appointing authority, and this Commission
of the nature and circumstances of the particular matter and the
financial interest that requires the Board member's abstention?


ANSWERS:


1. Yes.


2. No, because the Board member is not "otherwise required to
participate" in any matter pending before the Board.


DISCUSSION:

Section 6 of the conflict law prohibits a state employee from
participating[1] in a particular matter[2] in which he, an
immediate family member, or a business organization in which he is
serving as an officer, director, trustee, partner or employee, or
any person or organization with whom he is negotiating or has any
arrangement concerning prospective employment, has a direct or
reasonably foreseeable financial interest. The financial interest
implicated by s.6 may be of any size, and may be positive or
negative, so long as the financial interest is "either direct, or,
if indirect, reasonably foreseeable." EC-COI-89-33. Financial
interests that are remote, speculative, or not sufficiently
identifiable do not require abstention. EC-COI-89-19; 87-16; 84-
98
. We have said that we will decide on a case-by-case basis
whether a financial interest is reasonably foreseeable. EC-COI-89-
33.

Unquestionably the Corporation has a financial interest in its
own directors' decision whether or not to affiliate with another
private entity. However, s.6 concerns the Board member's official
participation, not actions which he may or may not take in his
private dealings. Consequently, we must determine whether the
Corporation also has a financial interest in the Board's decision
whether or not to cause the Facility to merge or affiliate with a
private entity. We conclude that the Corporation does have a
reasonably foreseeable financial interest in such decisions of the
Board.

In previous opinions, we have said that the prohibition on
one's official activities in s.6 extends to include voting on
matters affecting a competitor's financial interests. Thus, for
example, we have said that s.6 prohibits a state employee, who is
also an officer, director, trustee, partner or employee of an
organization, from participating officially with regard to
applications for funding submitted by competitor organizations,
because such participation gives the state employee "the
opportunity to advance the financial interests of [his] own
organization at the expense of [his] organization's competitors."
EC-COI-

Page 604

81-118. We found that s.6 is particularly applicable where the
competition is over a limited pool of resources. Here, the
Facility and the Corporation are or are likely to be competitors
for the same opportunity to affiliate with a finite number of
similarly situated private entities. Accordingly, the Corporation,
as a competitor of the Facility, has or is likely to have a
financial interest in the Board's consideration of the Facility's
options in this regard. Therefore, as an officer of the
Corporation, s.6 prohibits the Board member from participating
officially in matters in which the Corporation has a financial
interest. Although we recognize that the precise nature of the
Corporation's financial interest in such matters cannot now be
identified, we think that the existence of such financial interest
is obvious, and that when coupled with the potential for
conflicting allegiances presented by these facts, amply supports
the conclusion that the Board member ought to abstain.[3]

Having concluded that s.6 requires the Board member's
abstention, we go on to consider whether, in addition, the Board
member must notify his appointing authority, the Governor, and this
Commission "of the nature and circumstances of the particular
matter and make full disclosure of such financial interest ... "
G.L. c. 268A, s.6. We conclude that disclosure is not required.

Section 6 provides, in relevant part: "Any state employee
whose duties would otherwise require him to participate in such a
particular matter shall advise the official responsible for
appointment to his position and the state ethics commission of the
nature and circumstances of the particular matter and make full
disclosure of such financial interest..." Upon receiving such
disclosure, the appointing official may assign the particular
matter to another employee, or assume responsibility himself, or
make a written determination that the state employee may
participate because the employee's interest is not so substantial
as to affect the integrity of his services to the Commonwealth.

You have asked us to determine whether the Board member's duties
are such that they "otherwise require him to participate in" Board
matters of the kind here at issue. In making this determination,
we look first to the language of the statute.

The disclosure requirements in s.6 are triggered if the public
employee's "duties would . . . require him to participate." G.L.
c. 268A, s. (emphasis supplied). Thus, it is apparent that the
word "required" must be read in conjunction with the word "duties."
"Duty" is defined as: "Obligatory conduct or service" or "Mandatory
obligation to perform." Black's Law Dictionary 453 (5th ed. 1979).
We conclude that "duties which would require" a public employee's
participation are those actions which are within such employee's
"mandatory obligation to perform". Such a situation is presented,
for example, where a matter is specifically assigned to a state
employee such that she must either perform the work herself or
delegate the task to another to be performed. See, e.g., EC-COI-
90-5 In either case, the employee's duties "require" her
participation, i.e., participation is mandatory, since she may not
simply do nothing, but must elect to either perform the task
herself or reassign it to another. See, e.g., EC-COI-86-13
(assignment of a matter is participation within meaning of s.19,
the municipal counterpart to s.6).

By contrast, a member of a Board or Commission may abstain
from participating in a particular matter for reasons other than an
actual or potential conflict of interest, e.g., where a Board
member abstains from participation because legitimately undecided
on the issue or for reasons of conscience. Such Board member, we
think, cannot be compelled to participate notwithstanding his
desire to abstain, as his participation in the matter is
discretionary. That is, while participation by all Board members
present and capable of voting may be the expected or preferred
course of action, each Board member is nevertheless free to
abstain. Therefore, we conclude that since an individual Board
member's duties do not "require" that member to participate in any
particular matter, such Board member may simply abstain from all
participation in the matter without giving notice to his appointing
authority and this Commission.

The conclusion we reach here is also consistent with the
policy behind s.6. By its terms, the vice which s.6 is designed to
guard against is "participation" in a matter affecting financial
interest, i.e., self-dealing. Where there is no self-dealing
(i.e., no participation), s.6 is not triggered. Buss, The
Massachusetts Conflict-of-Interest Statute: An Analysis
, 45 B. U.
Law Rev. 299, 354 (1965) ("it is the act of public participation
alone which constitutes the violation.") Early opinions of the
Attorney General and the Commission are in accord. For example, in
Conflict Opinion No. 613, the Attorney General concluded that s.6
would not be applicable if the Board member did not participate,
but that an exemption was required "should [the Board member]
nevertheless wish to participate in the Board's activities."
Similarly, in EC-COI-79-61, the Commission concluded that a Board
member should not participate unless and until he complied with the
disclosure requirements and obtained the written determination
required by s.6. However, the disclosure requirements in s.6 were
not triggered if the Board member simply

Page 605

abstained. We think that these opinions correctly reflect the
policy of s.6 particularly where, as in the case of a Board member,
the public employee may effectively isolate himself from all
participation in the matter.

We also note that where a Board member intends to
abstain, resort to the disclosure requirements presents the appointing
authority with two choices: he may assign the matter to another
employee, or he may perform the task himself. You argue that each
of these options is inappropriate here. We agree.

If disclosure were made here, the particular matter which the
Governor would be asked to reassign or undertake himself is the
Board member's decision-making functions, e.g., his vote. However,
nothing in the applicable statute permits the Governor to replace
a Board member except in the case of a vacancy. Thus, the Board
member's decision-making functions cannot lawfully be assigned to
another employee. Nor can the Governor assume responsibility for
the matter himself as to do so would improperly subject the
Facility's management to an officer (other than a Board member) in
violation of that same statute. We have previously concluded that
where disclosure is inappropriate or futile under the
circumstances, s.6 requires mere abstention. See EC-COI-93-24
(member of the State Ethics Commission who performs a quasi-
judicial function involving confidential information should simply
abstain).

Finally, we are persuaded that nothing in the legislative
history of s.6 requires a different result. Our examination of
that legislative history reveals that the "otherwise required"
language in s.6 is the result of a 1978 amendment to 268A, which
arose out of the Common Cause initiative petition to create the
Commission in c. 268B, and to amend certain sections of c. 268A.
Prior to the 1978 amendment, the second paragraph of s.6 provided
an exemption to the employee who made a disclosure to his
appointing authority and was given a written determination in
advance that he could participate. Participation was also
permitted if the financial interest was of a type exempted from s.6
by "general rule or regulations approved by the attorney general."

In 1978, Common Cause inserted the following language into its
initiative petition (House No. 5151):

Any public official or public employee, who in the discharge
of his official duties, would be required to take an action
that would affect directly or indirectly a financial interest
of himself, a member of his immediate family, or a business
with which he is associated, shall take the following actions:

(a) Prepare a written statement signed under penalty of
perjury describing the matter requiring action and the nature
of the particular conflict; and

(b) Deliver a copy of the statement to the commission; and

(2) if he is not a member of a legislative or quasi-
legislative body or an elected official, he shall deliver a
copy of the statement to his immediate superior, if any, who
shall assign the matter to another employee, or if he has no
immediate superior, he shall take such steps as the commission
shall prescribe or advise to remove himself from influence
over actions and decisions on the matter.

House No. 5151 was assigned to a legislative committee
together with related house and senate bills. What emerged was a
new draft bill, Senate No. 1540, which provided:

Any state employee whose duties would otherwise require him to
participate in such a particular matter shall advise the
official responsible for appointment to his position of the
nature and circumstances of the particular matter and make
full disclosure of such financial interest, and the appointing
official shall thereupon either

(1) assign the particular matter to another employee; or

(2) assume responsibility for the particular matter; or

(3) 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, in which case the employee would not
violate the first paragraph of this section by his
participation in the particular matter. A copy of such
written determination shall be retained by the employee for a
period of six years after the termination of his involvement
in the particular matter.

As currently enacted, s.6 provides the same options as in
Senate No. 1540, but requires disclosure to both the appointing
authority and this Commission.

In our view, the primary purpose of the legislative change
proposed in the Common Cause initiative petition was to expressly
permit reassignment where a "public official or public employee,
... in the discharge of his official duties, would be required to
take an action" affecting particular financial interests.

Page 606

This option was not available under the prior s.6. In committee,
the Legislature adopted this change, retained the option from the
prior version allowing participation after disclosure to and a
written determination from the appointing authority, and added a
third option -- the appointing authority could assume
responsibility himself. However, the various bills are in accord
that resort to these options is necessary only where the discharge
of the public employee's official duties requires him to take
action. In other words, s.6 applies only where some form of
participation is unavoidable because the public official's duties
make his participation mandatory. Where, as in the case of the
Board member, participation is not mandatory, the disclosure
requirements in s.6 are not triggered. Therefore, the Board member
may simply abstain.


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

[1] "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).

[2] "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).

[3] Moreover, as you note, the Corporation is a provider of
insurance to consumers throughout the state including, presumably,
users of the Facility and users of other similar facilities located
in the area. Given this fact, we recognize the likelihood that the
Corporation also has a financial interest in the Facility's plans
because of the effect such plans may have on costs borne by the
Corporation as a result of expanded (or contracted) services in
that area. Additionally, we note that s.6 may also be implicated
by other Board decisions regarding the Facility that have a direct
or reasonably foreseeable impact on the Corporation's financial
interest. However, we have no facts at this time on which to base
such a determination.

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End Of Decision