April 6, 1987

FACTS:


You are a full time state employee and are considering serving
as a member of the board of directors of a bank. You may also
become a member of a bank sub-committee regarding community issues.
For your services as a member of the board, you would be paid an
annual retainer for each board of directors' meeting.


QUESTION:


Does the conflict of interest law permit you to serve
simultaneously as a state employee and a member of a bank's board
of directors?


ANSWER:


Yes, subject to the limitations discussed below.


DISCUSSION:


You are a state employee within the meaning of G.L. c. 268A,
the conflict of interest law, By virtue of your state employee
status, you are prohibited from receiving compensation from the
bank regarding any particular matter [1] in which the commonwealth
or a state agency is a party or has a direct and substantial
interest. G.L. c. 268A, s.4(a). This restriction, for example,
would prohibit you from participating in a bank decision to seek
accounts with state agencies or to establish a state scholarship
program. You may not assist in bank determinations to lease space
in state buildings for automatic teller machines. Furthermore, if
the subcommittee of the board confronts a matter which concerns the
State Division of Banking. you may not participate in that matter.
In short, the bank may not compensate you to perform any bank
director services concerning matters of direct and substantial
interest to the state.

In addition, s.4(c) of the conflict law prohibits you from
acting as bank agent in connection with a particular matter in
which the commonwealth or a state agency has a direct and
substantial interest. For example, you could not represent the bank
in a meeting with state agency directors regarding state bank
accounts. You may not approach or communicate with any state agency
on the bank's behalf, whether formally or informally.
Compliance with this restriction will avoid any question that you would or
could influence a state agency on behalf of the bank.

Although there does not appear to be any current relationship
between the bank and your state agency, we offer the following
guidance if this situation changes. Generally, a state employee may
not participate[2] in any particular matter in which a business
organization in which he serves as director has a financial
interest. Consequently, you would be prohibited from participating
as a state employee in any matter in which the bank has a financial
interest.[3]

Finally, the "standards of conduct" provisions of the conflict
law prohibit a state employee from using his official position to
obtain unwarranted privileges for himself or others. G.L. c. 268A,
s.23(b)(2). For example, you may not conduct bank business on state
time or use state resources for such work. You would be required
to take vacation or personal time from your state job to attend
daytime director meetings. You also must not engage in conduct
which gives a reasonable basis for the impression that you could
be improperly influenced by your relationship with the bank. G.L.
c. 268A, s.23(b)(3). You should consider these principles any time
your state job places you in a position to affect or favor,
directly or indirectly, the bank.[4]

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[1] "Particular matter," is defined as any judicial or other
proceeding, application, submission, request for a ruling or other
determination, contract,

Page 135

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).

[2] "Participate," is defined as participate in agency action or
in a particular matter personally and substantially as a state,
eounty and municipal employee, through approval, disapproval,
decision, recommendation, the rendering of advice, investigation
or otherwise. G.L. c. 268A, s.6(b).

[3] There is an exemption to the prohibitions of s.6 if you receive
written permission to participate from the offical responsible for
your appointment G.L.c. 268A, s.6(b).

[4] Section 23(b)(9) provides that "No curent officer or employee
of a state gency shall knowingly ... act in a manner which would
cause a reasonable person, having knowledge of the relevant
cirumstances, to conclude that any person can improperly influence
or unduly enjoy his favor in the performance of his official
duties, or that he is likely to act or fail to act as a result of
kinship, rank, position or undue influence of any party or person.
It shall be unreasonable to so conclude if such officer or employee
has disclosed in writing to his appointing authority or, if no
appointing authority exists, disclose in a manner which is public
in nature, the facts which would otherwise lead to such a
conclusion."

End Of Decision