August 25, 1988

FACTS:


You are a full-time state employee of state agency ABC. ABC has
the provision of services to the homeless as one of its priorities.
When you began your employment in this position, your supervisor
requested that you come a member of the Board of Trustees of an
organization for the homeless and represent ABC in this
organization. The organization has a contract with a state agency
for funding of shelter expenses in operating a shelter for homeless
families. You have become an unpaid member of the organization's
Board of Trustees and, in that capacity, you are chairperson and
a member of various committees.


QUESTIONS:


1. Does G.L. c. 268A permit you to be a member of the
organization's Board of Trustees?
2. Does G.L. c. 268A permit you to be a member of the
organization?


ANSWER:


1. Yes, subject to the limitations discussed below.

2. Yes, subject to the limitations discussed below.


DISCUSSION:


Section 4


Section 4(c) generally prohibits a state employee, otherwise
than in the proper discharge of her official duties, from acting
as agent or attorney for anyone other than the Commonwealth or a
state agency in connection with any particular matter[1] in which
the Commonwealth or a state agency is a party or has a direct and
substantial interest. As long as you do not act as the
organization's representative or spokesperson before a state agency
in relation to any particular matters in which the state has a
direct and substantial interest, you will not violate s.4(c). See,
EC-COI-83-145
. The work that you describe that you would currently
like to do for the organization as a member of the Board of
Trustees, and as a committee member, involves matters internal to
the Board and to the organization. It is permissible for a state
employee to participate in internal Board of Trustees discussions
relating to matters in which the state has a direct and substantial
interest. See, EC-COI-85-21; EC-COI-85-16. However, Yu may not
appear before any state officials or agencies on behalf of the
organization by signing in your capacity as a member of the Board
of Trustees, documents or correspondence directed to state
officials or agencies, or by acting as a spokesperson for the
organization in its dealings with the state.

You have also asked us whether these appearances before any
state officials or agencies on behalf of the organization would be
permissible as acts done in the proper discharge of of your
official duties. Were your duties as a member of the Board to
expand or change, the s.4(c) exemption for acts done in the proper
discharge of official duties would not be applicable to your
situation. Your official job description requires that you serve
as office community liaison for the agency but does not
specifically authorize you to serve on the Board of Trustees of a
state vendor or state vendors in order to meet these
responsibilities. Section 4(c)'s exemption is best applied in the
case where a written job description specifically authorizes the
acts in question. See, EC-COI-84-145; EC-COI-83-20. Although the
statute provides some latitude to an employee's appointing official
to determine what would constitute the proper discharge of official
duties, and the Commission will customarily defer to the appointing
official's discretion, see, EC-COI-81-89; EC-COI-80-96; see also,
EC-COI-88-10
(where the Commission deferred to a school committee's
construction of a teacher's contract in the context of a s.20
issue), an appointing official's discretion under s.4 is not
unlimited. EC-COI-83-137; Commission Compliance

Page 208

letter 81-21. Your appointing official has indicated that she
considers your service on the organization's Board of Trustees to
be part of the proper discharge of your official duties within
the meaning of s.4(c). She bases this on reading your job
responsibilities that includes Board membership in your mandate
to work with the community. There is nothing in this
responsibility that requires, however, that you join the Board of
Trustees for the organization in order to fulfill it.

Whether any particular determination by an appointing official
would so far exceed the customary job requirements for an
employee as to frustrate the purposes of the statute is a
judgment which ultimately rests with the Commission. EC-COI-83-
137
. In view of the absence of a distinct institutional interest
of your state agency in having you act as the spokesperson for
the Board of Trustees of the organization, in light of the fact
that the general institutional interest of your state agency,
ABC, in providing services to the homeless can be fulfilled
completely without your assuming this position on the Board of
trustees, and in light of the purpose of s.4,[2] we conclude that
the s.4(c) exemption would not be applicable to you were you to
act as agent or spokesperson with the state for the organization.


Section 6


You should also know that, were you to serve on this
organization's Board of Trustees, G.L. c. 268A, s.6 would also
apply to your situation. Section 6 prohibits a state employee
from participating [3] as a public official in any particular
matter in which she, her immediate families or a partner or a
business organization [4] which she is serving as an officer,
director trustee, partner or employee, or any person with whom
she is negotiating or has any arrangement concerning prospective
employment, has a financial interest, Under this section, you may
not participate as a state employee in any particular matter in
which the organization has a financial interest so long as you
sit on the organization's Board of Trustees.

Under s.6, however, an exemption is available. The provision
is available to:

Any state employee whose duties would otherwise require her to
participate in such a particular matter shall advise the official
responsible for appointment to her position and the State Ethics
Commission of the nature and circumstances ofthe 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, it shall not be a violation for the
employee to participate in the particular matter. Copies of
such a written determination shall be forwarded to the
employee and filed with the State Ethics Commission by the
person who made the determination. Such copy shall be
retained by the Commission for a period of six years.

Were you to receive such a written exemption you could
participate, as a state employee who sits on the organization's
Board of Trustees, in particular matters in which the
organization had a financial interest.

We reiterate that membership on the organization's Board
itself is not prohibited, provided that your activities in that
role comply with G.L. c. 268A, s.4 and provided that you are
guided in your state work as a state employee by G.L. c. 268A,
s.6. Similarly, general membership in the organization itself is
not prohibited, provided that your activities in that role comply
with G.L. c. 268A, s.4.[5]

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[1] "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).

[2] "Section 4, prohibiting assistance to outsiders, is the
essence of conflict of interest legislation. It says, in effect,
that the norm of govemment employment is that the regular public
employee should, in the usual case, be a public employee first,
last and only." Buss, The Massachussets Conflict of Interest
Statute: An Analysis, 45 B.U. Law. Rev. 299,332(1965).

[3] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapprosal, decision,
recommendation, the rendering of advice, investigstion or
otherwise. G.L. c. 268A, s.1(j).

[4] A nonprofit oganization is a business organization within the
meaning of the statute, See, EC-COI-88-4.

[5] This opinion is limited to a discussion solely of the
application of G.L. c. 268A to your situation. Your agency may
well have its own rules and policies on this matter which you
should investigate.

End Of Decision