Opinion  EC-COI-88-17

Date:	08/25/1988
Organization:	State Ethics Commission

A full-time state employee may become an unpaid board of trustees member for an organization for the homeless subject to certain restrictions. Section 4(c) would prohibit the employee from acting as an agent or representative for the organization before state agencies on matters in which the state has a direct and substantial interest. This section would not prohibit the employee from participating in internal board of director discussions including matters in which the state has an interest. An exemption from section 4(c) would not be available since the employee's official duties do not specifically authorize membership on the Board o f trustees. If the state employee's duties require her to participate in a matter which would financially affect the Board, she must comply with a section 6 exemption to avoid a violation of that section. 

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, You 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 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 

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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 of the 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] 

[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 government employment is that the regular public employee should, in the usual case, be a public employee first, last and only." Buss, The Massachusetts 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, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j). 

[4] A nonprofit organization 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