February 14, 1991

FACTS:

Page 342

You were appointed in November, 1990 as the director of the
state lottery. In that capacity, you supervise and administer the
state lottery and serve as executive officer of the State Lottery
Commission (SLC). G.L. c. 10, s.26. Prior to your appointment, you
had business relationships with three separate organizations and
wish to know whether you may maintain those relationships outside
of your regular SLC work schedule.[1]

1. Since 1988, you have served as a compensated member of the
board of directors of and occasional consultant to Pericomp
Corporation (Pericomp), which designs and manufactures equipment
for the testing of magnetic tape drives. Pericomp does not engage
in any business with either the SLC or any Massachusetts state
agency.

2. You are an unpaid member of the board of directors and a
stockholder of Filemark Corporation (Filemark), a wholly owned
subsidiary of Pericomp. Filemark provides computerized file
management systems which involve the use of personal computers and
scanners. Filemark does not engage in any business with either the
SLC or any Massachusetts state agency.

3. You serve as a technical computer consultant to the president
of a quasi-governmental agency of the state of New York, the New
York State Catskill Region Off Track Betting Corporation (OTBC).
The OTBC provides off-track betting services to the betting public
in the Catskill Region of New York State and has no relationship
with the SLC or with any Massachusetts state agency. You state that
the computer systems operated by both OTBC and SLC are provided by
the same supplier, General Instrument Corporation (GIC). You also
state that you were initially hired as a technical consultant by
the OTBC president in 1989.


QUESTION:


Does G.L. c. 268A permit you to retain your business
relationships with Pericomp, Filemark and OTBC while you serve as
director of the state lottery?


ANSWER:

Yes, subject to certain conditions.


DISCUSSION:

As director of the state lottery, you are considered a state
employee for the purposes of G.L. c. 268A. See G.L. e. 268A,
s.1(q)
. Three sections of G.L. c. 268A are relevant to the
propriety of your after-hours activities.

Page 343

The first, G.L. c. 268A, s.4, prohibits you from either receiving
compensation from or acting as agent for anyone other than the
commonwealth or a state agency in connection with any contract,
application, proceeding or other particular matter[2] in which the
commonwealth or a state agency is either a party or has a direct
and substantial interest. The second, G.L. c. 268A, s.6, prohibits
you from participating[3] in your official capacity as lottery
director in any particular matter which affects the financial
interests of an organization with which you have an employment or
director relationship. The third, G.L. c. 268A, s.23(b)(2),
prohibits you from using your official state position to secure any
unwarranted privileges or exemptions of substantial value for you
or anyone else. Based on these statutory provisions, we offer the
following advice.


1. Pericomp


Your compensated director and consultant relationship to
Pericomp is permissible under G.L. c. 268A, s.4 since your
activities as you describe them do not relate to any contract or
other particular matter in which any commonwealth of Massachusetts
agency is either a party or has a direct and substantial interest.
Should the facts change and Pericomp propose to commence
applications, contracts or other particular matters with any
commonwealth of Massachusetts agencies, however, you should renew
your opinion request with us.

Although there do not appear to be any current or prospective
matters coming before you as lottery director affecting Pericomp's
financial interests, you will be subject to the abstention
requirements of G.L. c. 268A, s.6 should such matters arise. To
comply with G.L. c. 268A, s.23(b)(2), you must conduct your
Pericomp activities entirely outside of your SLC work schedule and
must refrain from using SLC resources such as telephones,
computers, postage and personnel for your Pericomp work.


2. Filemark


The same principles which apply to you in your Pericomp
activities will also apply to you in your activities as a member
of the board of directors and stockholder at Filemark. In
particular, should Filemark seek to commence any dealings with
agencies of the commonwealth of Massachusetts, we recommend that
you renew your advisory opinion request.


3. OTCB


Because your consultant activities to OTCB do not relate to
any particular matter in which a commonwealth of Massachusetts
agency is either a party or has a direct and substantial interest,
your OTCB activities as you describe them are permissible under
G.L. c. 268A, s.4, subject to the condition that your activities
be conducted entirely outside of your SLC work schedule and without
the use of SLC resources. G.L. c. 268A, s.23(b)(2). Your facts also
warrant discussion of two additional issues under G.L. c. 268A,
s.23.

Section 23(b)(3) prohibits a state employee from conduct which
would cause a reasonable person to conclude that the employee is
likely to act as a result of undue influence of any person. This
conclusion can be dispelled through a written disclosure by the
employee relating the relevant facts to his or her state appointing
authority. To the extent that, in your official SLC capacity, you
will be dealing with GIC, which also supplies computer systems to
OTCB, there could be an appearance that your official activities
could be influenced by GIC's supplier relationship with OTCB. To
dispel this appearance, you should disclose to your SLC appointing
authority the relevant facts concerning your relationship with GIC.
See, In the Matter of George Keverian, 1990 SEC 460.

Section 23(b)(1) prohibits a state employee from accepting
paid employment, the responsibilities of which are inherently
incompatible with the employee's public office. While your
consultant responsibilities for OTCB do not appear to be
incompatible with your current duties as lottery director,
EC-COI-89-30, issues under s.23(b)(1) could arise if the scope of
the SLC jurisdiction were expanded to include off-track betting.
Should this occur we suggest that you renew your opinion request
with us.[4]

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[1] The Commission does not possess the authority to interpret
G.L. c. 10, s.26 and, in particular, whether your activities are
violative of the statutory requirement that the director of the
state lottery "shall devote his entire time and attention to the
duties of his office." You should pursue with the Attorney General
the interpretation of this requirement.

[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] "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).

[4] Given your pre-existing consultant relationship with OTCB,
it does not appear that your maintenance of that relationship is
"for or because of" any official acts as lottery director. G.L. c.
268A, s.3.

End Of Decision