January 11, 1994

FACTS:



You are currently a full-time employee of the State Treasury
as a staff employee of the State Board of Retirement ("Board").
The Board was created by statute, as a division of the Department
of the State Treasurer. G.L. c. 10, s. 18. The Board has three
members. The first member is the State Treasurer, who is a member
ex officio and who serves as chairman. The second member is a
current or retired member of the retirement system, elected by
that group. The third member is chosen by the first two members.
You have taken out nomination papers for election as the second
member of the Board.

Pursuant to G.L. c. 10, s. 19, Board members serve without
compensation, but are reimbursed for any expense or loss of
salary which they may incur through service on the Board. Board
members are not involved in staff employees' promotions,
reclassifications, demotions, firings, salary recommendations,
personnel evaluations or other like recommendations.



QUESTIONS:

1. Pursuant to the conflict of interest law, may you
retain your staff position while running for the Board post?

2. Would the conflict of interest law prohibit you from
retaining your staff position if you are elected to the Board?
 


ANSWERS:

1. Yes.

2. No.

 


DISCUSSION:



Nothing in the conflict of interest law prevents a
government employee from running for any elected position.
Commission Advisory No. 2. The more difficult issue presented in
your request is whether you may retain your current full-time
position as a staff member if you are elected to the second Board
post. Normally, the propriety of holding multiple positions is
addressed by s. 7 of the conflict of interest law, which
prohibits a state employee from having a financial interest,
directly or indirectly, in a contract made by a state agency, in
which the Commonwealth or any state agency is an interested
party, unless an exemption applies. Thus, as a Board member, you
would normally be prohibited from holding a paid position as a
staff member at the Board, absent a gubernatorial exemption. G.L.
c. 268A, s. 7(e). However, G.L. c. 10, s. 18 specifically
requires the second Board member to be either a current or
retired member of the state retirement system. This means that a
state employee would serve on the Board by virtue of his state
employment. "Such a situation is analogous to a state employee
serving ex officio on a Board." EC-COI-84-148. Because service in
both capacities is "tied to one state contract, i.e. the original
state employment contract, such an individual would not have a s.
7 prohibited financial interest in another state contract." Id.
Therefore, s. 7 is not implicated for you if you are elected to
the second Board position.[1]

Section 6 prohibits a state employee from participating[2]
as such an employee in a particular matter[3] in which to his
knowledge he has a financial interest. The financial interest
must be "direct and immediate, or at least reasonably
foreseeable." EC-COI-84-123; 84-98; 86-25; 84-96. You indicate
that Board members are not involved in staff employees'
promotions, reclassifications, demotions, firings, salary
recommendations, setting of salaries, personnel evaluations or
other like recommendations. Pursuant to G.L. c. 10, s. 20, the
State Treasurer has the ability to appoint and remove such
clerical and other assistants as may be required to carry on the
work of the Board. Thus, if you are elected to the Board, it is
unlikely that you will be required to participate in any
particular matters in which you have a financial interest.[4]
However, if you find that you do have a prohibited financial
interest in a particular matter that comes before you as a Board
member (for example, a dispute concerning your own retirement
benefits) you must abstain from that matter.


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


[*] Pursuant to G.L. c. 268B, s. 3(g), the requesting person
has consented to the publication of this opinion with identifying
information.

[1] Section 8A of G.L. c. 268A states that no member of a
state commission or board shall be eligible for appointment or
election by the members of such commission or board to any office
or position under the supervision of such commission or board. No
former member of such commission or board shall be so eligible
until the expiration of thirty days from the termination of his
service as a member of such commission or board. The s. 8A
restriction is not triggered "until a board appoints one of its
own members to a position under that board's supervision. Where a
person is first employed under the supervision of

Page 558

a board and then becomes a board member, an issue will not be
raised under [s. 8A] if no additional appointment is necessary."
EC-COI-93-19 (discussing s. 21A, the municipal counterpart to s.
8A). Thus, since you were first employed in your current full-time
position, s. 8A will not be implicated if you subsequently become
a member of the Board.

[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. G.L. c. 268A, s. 1(j).

[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] Since the second Board member must be an active
participant in the retirement system, the statute contemplates
that this Board member will participate in particular matters
that affect all retirement system participants, including
himself. G.L. c. 10, s. 18. Therefore, as a Board member, you may
participate in particular matters which affect generally the
financial interests of members of the retirement system.

Page 559

 

End Of Decision