April 27, 1993

FACTS:


You are a member of the General Court. Your district serves
as the host to a number of public service projects, regional
highways, and state agencies.

Your district will soon experience a large increase in
construction activity. You further state that it is now possible
for community organizations in your district to work with state
agencies and the contractors, to build in binding mitigation
requirements for projects affecting the community.

As a Legislator, you are both an elected official and a
political leader in your community. You expect that when project
proponents seek to discuss mitigation issues with the community,
they will ask you for recommendations as to which community
groups they should deal with and which mitigation efforts are
most important to the community. You view this activity as being
within the scope of your official duties and within the range of
activities customarily expected of legislators.

In addition to your elected position, you currently serve as
one of many members of an advisory committee (Committee), a non-
profit entity created by special legislation. The ABC PAC was
established to provide community-based advisory assistance to
state agencies and others with community input on projects
affecting the community.

Neither you nor any member of your immediate family (as
defined in G.L. c. 268A, s. 1[e]) has any financial interest in
ABC PAC. Neither you nor any member of your immediate family
would have any financial interest in any project. ABC PAC does
not contribute to or participate in any individual political
fundraising events or individual political campaigns.

ABC PAC will soon appoint some directors of a non-profit
community organization's Board of Directors (the "non-profit
community organization"). The non-profit community organization
is a community-based organization made up of concerned

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citizens from your district and has been established to aid the
community in connection with construction mitigation matters. We
presume that the non-profit community organization would benefit,
at least in part, from your recommendations and advice concerning
community mitigation efforts. Neither you nor any member of your
immediate family is a member, director, officer, or employee of
the non-profit community organization. Moreover, neither you nor
any member of your immediate family would receive any direct or
indirect remuneration from the non-profit community organization.

The non-profit community organization will not contribute to
or participate in any individual political fundraising events or
individual political campaigns. ABC PAC would not derive profit
or funding from the non-profit community organization. The non-
profit community organization will conduct itself as an
organization exempt from federal taxation pursuant to Section
501(c) of the Internal Revenue Code of 1986, as amended, and will
make application to the IRS for recognition of such status.

Finally, as a Legislator, you have no authority over or
regulatory relationship with any project bidder. You have neither
regulatory jurisdiction nor control over agency or authority
decisions concerning bidders or their contracts, nor will you
directly participate in any negotiations between any bidder and
the non-profit community organization.


QUESTIONS:



1. Does G.L. c. 268A permit you to respond to a request from
a private party bidding or seeking to bid (a "Bidder") on a
public works project or a project of a public authority which may
directly or indirectly impact your district (collectively, the
"Project") for a recommendation as to non-profit community
organizations which a Bidder may wish to work with on community
mitigation issues?

2. Does G.L. c. 268A permit you to recommend certain
mitigation efforts in response to an inquiry from a Bidder on a
Project for suggestions of mitigation efforts which may either
increase community support for the Project or decrease community
opposition to the Project, which mitigation efforts may include
contributions to certain non-profit community organizations for
use in community projects or programs?



ANSWERS:



1. Yes, subject to any relevant limitations discussed below.

2. Yes, subject to any relevant limitations discussed below.


DISCUSSION:


As a member of the General Court, you are a state employee
as that term is used in the conflict of interest law. Certain
provisions of G.L. c. 268A are relevant to your questions.


Section 23


The Commission has long held that when a public employee
solicits anything of substantial value [1] from persons within
his regulatory jurisdiction an issue is raised under s. 23 of
G.L. c. 268A. EC-COI-90-9 (state official prohibited from
soliciting vendors of his agency to support political candidate);
82-124 (County Commissioner prohibited from privately selling
insurance to county vendors whose contracts he oversees); 81-66
(corrections officer prohibited from catalog selling to inmates
within his custody). This is because G.L. c. 268A, s. 23(b)(2)
prohibits a state employee from using his position to secure
unwarranted privileges of substantial value for himself or others
which are not available to similarly situated individuals. The
Commission has recognized in applying this provision the
"inherently exploitable nature" of the situation where a public
official is soliciting from someone within his regulatory
jurisdiction. See EC-COI-92-12 (Board member prohibited from
soliciting individuals under his regulatory authority).

Applying s. 23(b)(2) in EC-COI-92-28, the Commission
concluded that certain proposed business solicitations, which
would have been made by the Governor, would have violated s.
23(b)(2) -- unless specifically permitted by law -- because those
solicitations would have resulted in a non-state entity receiving
an unwarranted privilege of substantial value. In the present
case, not only is there no regulatory nexus between the Bidders
and your office, but also your proposed actions would not appear
to constitute a "solicitation" within the meaning of EC-COI-92-
28
. Rather, your actions appear to be more consistent with your
official duties as a state legislator

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performing constituent services. See, e.g., Public Enforcement
Letters 92-1 and 92-2; see also Advisory No. 13 (Agency)
.

Where your proposed actions would be limited to making
recommendations and responding to requests, we find that you
would not be engaging in active solicitation or using your
official state office for personal or private (non-public)
purposes. Accordingly, your situation is distinguishable from EC-
COI-92-28 and 92-5
(use of state seal prohibited for fundraising
or campaign purposes as such activities benefit personal rather
than public interest) and therefore does not raise an issue under
s. 23(b)(2). Should you later seek to actively solicit Bidders,
you should seek further advice from this Commission.


Section 6


Section 6 prohibits a state employee (including a member of
the General Court) from participating [2] as a public official in
any particular matter [3] in which he, his immediate family
members [4], or a partner or a business organization which he is
serving as an officer, director, trustee, partner or employee, or
any person with whom he is negotiating or has any arrangement
concerning prospective employment, has a financial interest [5].

As a member of the General Court, you would participate in a
particular matter whenever you interject yourself, as a state
representative, into mitigation or other matters. See, e.g.,
Craven v. State Ethics Commission,
390 Mass. 191 (1983), and In
re Craven,
1980 SEC 17. Accordingly, if you, an immediate family
member, or an organization (including a non-profit) in which you
serve as an officer, director, trustee, partner or employee, have
a direct or a reasonably foreseeable financial interest in a
given matter, s. 6 would prohibit your participation in that
matter. For example, issues will arise for you under s. 6 if (i)
you serve as a member of the Board of Directors of the non-profit
community organization established by ABC PAC, and (ii) that non-
profit has a financial interest in a mitigation matter, and (iii)
you intervene as a state representative (by making
recommendations or responding to vendors or state agencies, for
example), in that mitigation matter. Assuming, however, that
you (as well as members of your immediate family) will not have any
personal financial interest in the construction projects or
related mitigation matters, and provided that you do not serve as
an officer, director, partner or employee of any business
organizations with a financial interest in the construction
projects or the mitigation matters, an issue under s. 6 will not
be raised as a result of your proposed activities.

This opinion is based solely on the facts as you have
presented them. Should the scope of your activities concerning
community mitigation efforts or your relationship with the non-
profit community organization or any other interested
organizations change, you should seek further advice from the
Ethics Commission.


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[1] Anything valued at $50 or more. Commonwealth v.
Famigletti, 4 Mass. App.Ct. 584, 587 (1976); Commission Advisory
No. 8.

[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, 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] "Immediate family," the employee and his spouse, and
their parents, children, brothers and sisters. G.L. c. 268A, s.
1(e).

[5] Note that the definition of a "particular matter"
expressly excludes the enactment of general (as opposed to
"special") legislation.

End Of Decision