| Date: | 08/16/1983 |
|---|---|
| Organization: | State Ethics Commission |
| Location: | Boston, MA |
A District Court Judge may handle cases involving driver education and alcohol treatment programs administered by a non-profit corporation that employs the Judge's step-son pursuant to a contract awarded to the non-profit by the Department of Mental Health Division of Alcoholism provided that the Judge complies with §§ 6 and 23 of the conflict of interest law.
All identifying information has been deleted from this opinion as required by Chapter 268B, § 3(g).
You are a District Court Judge. A non-profit Corporation ("the Corporation") has been awarded a contract by the Division of Alcoholism at the Department of Mental Health to conduct for that Court driver alcohol education programs and treatment programs. See G.L. c. 90, s.24(d). The contract was competitively bid. The Corporation has similar contracts to provide these services to other District Courts. An individual placed in such a program by a District Court pays a fee in the amount of $280 directly to the program. The amount of the fee has been set by the Division of Alcoholism.
Your wife's son from her first marriage is employed by the Corporation as an "After Care Manager". In that capacity he "funnel[s] appropriate subjects to approved after-care vendors and monitors their progress while under treatment." You state that "[a]t no time did [you] discuss the possibility of his being selected [for that position] with anybody at [the Corporation]
either before or after his selection." You further state that except in emergency situations you do not make referrals to the program conducted by the Corporation and that they are made by another judge.
Does the conflict of interest law (General Laws Chapter 268A) impose any restrictions on you with respect to the programs conducted by the Corporation by virtue of the fact that your wife's son is employed by the Corporation?
Generally not, except as described below.
As a District Court Judge you are a state employee as defined in the conflict of interest law. See G.L. c. 268A, s.1(g). The provisions of that law relevant to your question are §§ 6 and 23.
Section 6
Pursuant to § 6, you may not participate[1] in a "particular matter"[2] in which, among others, a member of your immediate family has a financial interest. "Immediate family" is defined in § 1(e) as "the [state] employee and his spouse and their parents, children, brothers and sisters." Your wife's son from a previous marriage would be considered a member of your immediate family. We do not interpret the use of the word "their" in the definition of immediate family to imply that only those children born to the employee and his spouse together are included. "Their" also modifies "parents brothers and sisters." Obviously, the parents, brothers and sisters of either the employee or his spouse are meant to be included. See Buss; The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. L. Rev, 299,356(1965).
Accordingly, you may not participate in a particular matter in which your step-son has a financial interest. If such a matter were to come before you, you would not only have to abstain but would also have to advise the official responsible for your appointment and the State Ethics Commission of the nature and circumstances of the particular matter and make full disclosure of such financial interest. Under § 6, the appointing official may then either 1) assign the particular matter to another employee, 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. Your appointing official is the Governor. In view of the constitutional provisions concerning separation of functions (see Constitution of Massachusetts, Part 1, Article 30), the legislature could not have contemplated that the Governor would be called upon to exercise a judicial function. Accordingly, in order to give the statute a "workable meaning", Graham v. McGrail, 370 Mass. 133, 140 (1976) which will avoid constitutional doubts, see, Commonwealth v. Crosscup, 369 Mass. 228, 234 (1975), we imply a delegation of the obligations imposed by § 6 on the "appointing official" to the Chief Justice of the Supreme Judicial Court. See G.L. c. 211, s.3.
Your wife's son would be deemed to have a financial interest in the court's decision to refer defendants to "after-care programs" if his continued employment by the Corporation turned on their being such referrals. Compare EC-COI-81-108, EC-COI-82-105. We need not address that issue since such referrals are usually made not by you but by another judge of the District Court. Even if his continued employment, in fact, did turn on their being such referrals, it would appear highly unlikely that it would turn on those rare referrals made by you in "emergency situations." Therefore, he would not, in any event, be deemed to have a financial interest in such sporadic referrals.
Section 23
Section 23 (para. 2)(3) prohibits a state employee from giving reasonable basis, by his conduct, for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties or that he is unduly affected by the kinship, rank, position, or influence of any party or person. Recently, the Commission concluded that a District Court Judge violated this provision by assigning defendants to attend alcohol education programs given by a corporation employing his daughter. See In the Matter of Robert N. Scola, Commission Adjudicatory Docket No. 212.
It would appear that the circumstances in your case are sufficiently different from those in Scola that a similar conclusion would not be warranted. First, unlike the judge in that case, you generally do not make referrals. Second, in Scola the judge, himself, made the initial decision to use the corporation's services. In your case, that decision was made by the Department of Mental Health after a public bidding process. Finally, the family member in Scola was the only paid employee of that corporation.
If the circumstances you have described should change and, in particular, if you should be called upon to make referrals on a more regular basis, you should either seek a further advisory opinion or comply with the provisions of s.6 outlined above.
