Advisory  86-02: Nepotism

Date:	12/15/1986
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

Introduction

The purpose of this advisory¹ is to outline the prohibitions against nepotism contained in the conflict of interest law and to provide guidance on how to comply with the law when confronted with a nepotism situation.²

I. Nepotism is Prohibited

The conflict law prohibits elected and appointed public officials at the state, county, and municipal level from participating³ in particular matters⁴ in which their immediate family members have a financial interest.⁵ Immediate family is defined in the statute as "the employee and his spouse, and their parents, children, brothers and sisters." For example, an official's brother-in-law would be considered "immediate family" if he were the brother of the official's spouse but not if he were married to the official's sister.

In addition to these sections of the law, nepotism raises concerns under G.L. c. 268A, § 23, which sets forth standards of conduct regulating all public employees. Essentially, § 23 prohibits public officials from using their position to secure an unwarranted privilege of substantial value for themselves or others, or from acting in a manner which gives a basis for the impression either that they are improperly influenced by another person, or that someone is unduly enjoying their favor because of kinship. Therefore, if a public official wishes to participate in a matter which affects the financial interest of a relative, even if that relative is not a member of his or her immediate family, (e.g., a cousin or a niece) they may not give preference to the relative because of the relationship. They must also be careful to avoid the appearance of favoritism based on kinship. This is done by publicly disclosing the relationship and following ordinary and accepted procedures without deviation.

The purpose of these provisions is to prevent conflicts or the appearance of impropriety that can arise whenever a public official's personal loyalty to a family member competes with the public interest that objective decisions be made regarding public employment.

II. Specific Acts That are Prohibited

1. A public official may not hire an immediate family member.⁶  As stated above, the conflict law prohibits a public employee from participating in any particular matter in which a family member has a financial interest. The decision to hire is a particular matter in which an official is "personally and substantially" participating, and the family member has an obvious financial interest in the hiring decision.

Personal and substantial participation involves more than just voting.  It involves any significant involvement in the hiring process such as discussion or recommendation or other matters leading up to the vote. For example, interviewing or creating a test for applicants, one of whom is a family member, would violate the law. Generally, the best course would be to leave the room when a matter involving a family member's financial interest arises.⁷

An official need not be the sole decision-maker to be prohibited from participating in the hiring decision. For example, an official cannot, as one member on a board, vote to hire his or her family member, regardless of the size of the board. Nor would it matter that there was little, if any, controversy among the board members regarding the decision. A person can no more participate in making a vote of a 15-member board unanimous by casting the 15th vote than one can cast the deciding vote in an eight-to-seven vote.

It also makes no difference whether an official has unilateral authority over personnel decisions or whether he or she is one link in a bureaucratic chain of approvals. A typical example arises where a sub-committee conducts a search to fill a municipal position. The sub-committee's preferred list of candidates is then narrowed down by the full search committee and the candidate is ultimately chosen by a city council. A public official with a family member in the pool of candidates cannot participate in the sub-committee's search, the full committee's approval of a list of candidates, or the city council's final decision.

2. In addition to hirings, any significant involvement in the reappointment, promotion, reclassification, demotion, or firing of an immediate family member is prohibited. A public official may not participate in a job performance evaluation of an immediate family member because such evaluations play a critical role in job retention, promotion, and other job-related benefits of financial interest to the employee.

The Commission also views day-to-day active supervision as constituting personal and substantial participation.⁸  The process by which employees are retained or fired, promoted or demoted, or granted or refused step increases is not merely a function of a formal personnel evaluation. Realistically, those decisions are based on the supervisor's cumulative impressions derived from his or her day-to-day supervision of the employee. Therefore, while there may be exceptions, day-to-day supervision of a family member is barred because it is an integral part of the evaluation process.

3. Determining a family member's salary or benefits is barred. The prohibition includes approving or authorizing discretionary salary increases such as annual step increases, even though they may be thought of as "automatic."⁹

4. A subordinate may not provide advice or make a recommendation to his or her employer a personnel decision in which the subordinate's immediate family member has a financial interest.¹⁰

5. Negotiating or approving collective bargaining agreements or other contracts where the financial interests of family members will be effected in also prohibited.

6. Finally, signing warrants authorizing payroll or other payments to immediate family members in prohibited.

III. Delegation

A public official is prohibited not only from participating in personnel decisions affecting his or her family members, but also from delegating the authority to a subordinate. Because the official is in a position to choose and influence the person most likely to favor his or her family member, the choice of who will make the decision is an important part of the overall hiring decision.¹¹

In some instances, an elected public official is, by law, the sole legal authority with power to take certain actions, such as serving as the city's collective bargaining representative. If a public official who has the sole legal authority to act is prohibited from doing so in such matters as collective bargaining because the financial interest of an immediate family member would be impacted, the Commission has ruled that the public official may invoke the rule of necessity to designate an alternate to act as the collective bargaining representative.¹²  Contact agency counsel, town counsel or the State Ethics Commission for further information on invoking the rule of necessity.

IV. Disclosure and Authorization

What action, if any, should a public official take when faced with a potential nepotism situation? The answer depends on the position the official holds, because the conflict of interest law treats state and county officials differently depending on whether they are elected or appointed. The law also treats local appointed officials differently from state and county appointed officials.

State and County Appointed Officials

For state and county appointed officials, the rule is quite specific: if their duties would otherwise require them to participate in a particular matter in which a family member has a financial interest, they must disclose in writing all of the relevant facts to their appointing authority and the Commission, and the appointing authority must then decide whether to undertake the function himself or herself, assign it to someone else, or allow the official to participate.¹³  If the appointing authority decides to authorize the public official to participate, he or she must do so explicitly in writing, and a copy of that authorization must be submitted to the Commission.¹⁴

Municipal Appointed Officials

In contrast, under the conflict law, municipal officials may abstain from participating in the matter and thereby avoid any violation. They do not have to disclose to anyone that they are abstaining. Alternatively, they may seek the authorization from their appointing authority to participate by disclosing in writing all the relevant facts. The authorization must be granted in writing. Copies of the request and the authorization do not have to be filed with the Commission but they must be available for public inspection.¹⁵

Elected Officials

Because elected officials at the state, county and municipal levels of government do not have an appointing authority, they cannot take advantage of the disclosure and authorization provisions available to appointed officials. There is no statutory mechanism which permits their participation without violating the statute, and, therefore, they must abstain from participation.

V. Action By Subordinates

The one remaining issue is whether an elected official (or an appointed municipal official who chooses not to seek an authorization to participate) may abstain from the process entirely and have a subordinate handle the hiring (or other personnel) decision. This situation is distinguishable from the delegation of a hiring decision by an elected official. As indicated above, delegation is prohibited. The question is whether the elected official may simply abstain and, without providing any direction, leave to the subordinate the decision to hire (or promote, etc.) the family member.

The question of whether the subordinate has the authority to perform the duty in place of his or her superior is not addressed by the conflict of interest law. The answer must be determined by interpreting the statute which creates the principal official's position, and, specifically, any language which might provide a mechanism permitting a subordinate to act following the "disability" (whether physical, mental, or otherwise, including a conflict of interest) of the principal official.

A review of many such statutes reveals no consistent rule indicating when such authority may be exercised by a subordinate. Accordingly, any response the Commission will give to a request for an opinion on how the conflict of interest law will apply where an elected official abstains and a subordinate seeks to hire will be conditioned on the official's obtaining an opinion as to the legality of the personnel action by the subordinate. State officials should request such an opinion from the attorney general; municipal employees from the town or corporation counsel; and county employees from the legal counsel for the county.¹⁶

Disclaimer

This Advisory is intended to summarize the State Ethics Commission’s advice concerning compliance with the conflict of interest law and is informational in nature.  It is not a substitute for advice specific to a particular situation, nor does it mention every aspect of the law that may apply in a particular situation.  Public employees can obtain free, confidential advice about the conflict of interest law from the Commission’s Legal Division by submitting an online request on our website, by calling the Commission at [phone] and asking to speak to the Attorney of the Day, or by submitting a written request for advice to the Commission at One Ashburton Place, Room 619, Boston, MA 02108, Attn: Legal Division.

Revised January 2004

^1. The Commission issues Advisories periodically to interpret various provision of the conflict of interest law. Advisories respond to issues that may arise in the context of a particular advisory opinion or enforcement action but which have the potential for broad application. It is important to keep in mind that this advisory is general in nature and is not an exhaustive review of the conflict law. For specific questions, public officials and employees should contact their agency counsel or the Legal Division of the State Ethics Commission at [phone]. Copies of all Advisories are available from the Commission office or online at www.mass.gov/ethics. 

^2. The term "nepotism" originates from the Latin word for nephew. It originally referred to favoritism to a nephew in granting official positions. Nepotism is now commonly understood to include favoritism of any sort afforded any relative. 

^3. G.L. c. 268A, § 1(j) defines participate as "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." 

^4. G.L. c. 268A, § 1(k) defines particular matter as "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." 

^5. See, G.L. c. 268A, §§ 6, 13 and 19 dealing with state, county, and local officials, respectively. 

^6. Exemptions for appointed public officials are discussed in Part IV below. 

^7. See, generally Graham v. McGrail, 370 Mass. 133 (1976). 

^8. Active supervision is distinguished from those situations where the public official has official responsibility for his or her family member as a public employee, but does not directly participate in dealing with the family member. A typical example would be where the head of a large agency oversees several divisions but delegates the supervision of each to a division chief, and the division chief supervises the family member. 

^9. By law, step increases may be withheld by a department head. See, G.L. c. 30, § 46(c)(3), and c. 35, § 54 for state and county employees, respectively. 

^10. This should be distinguished from the situation where someone in a different division in the same agency or someone outside of an agency gives a recommendation or reference regarding a candidate for a job. For example, a municipal planning board member who called a supervisor in the Department of Public Works (DPW) to recommend a family member for a DPW job would not be participating personally and substantially in the hiring decision. Similarly, a state official may recommend some one to another state agency for a job if this is done without placing improper pressure on the state agency. Section 23 concerns could arise, however, if pressure is or appears to be exerted. Indeed, an outsider's recommendation can involve such substantial pressure on an agency as to be deemed personal and substantial participation by the outsider, thereby, violating § 6. In the Matter of James Craven, 1980 SEC 17. 

^11. The Commission recognizes that this is a difficult issue, because a family member's financial interest may or may not be affected by the choice of who will make the decision. Nevertheless, because it is not practical to determine which delegations are proper and which are not, and because such delegations can play a critical role in the hiring process, the Commission has determined that any such delegations constitute personal and substantial participation. 

^12. See Commission Fact Sheet No. 5: The Rule of Necessity. 

^13. Certain board members, whose duties do not require participation, are not required to make a disclosure provided that they abstain from the matter. However, if such board members seek to participate in the matter, they must follow all of the steps discussed in this paragraph in order to comply with the law. 

^14. Disclosure forms are available on the Commission's website at www.mass.gov/ethics/Formlist.htm. 

^15. Disclosure forms are available on the Commission's website at www.mass.gov/ethics/Formlist.htm. 

^16. Even in those instances where a law authorizes a subordinate to assume the hiring role, two significant issues arise under § 23 of the conflict law. First, the subordinate may not use his or her position to secure an unwarranted privilege for the applicant, i.e. hire the family member because of their relationship rather than his or her qualifications. If the subordinate so hired an unqualified family member, he or she would violate § 23(b)(2).

Secondly, where the subordinate hires his or her supervisor's family member and where the subordinate serves at the pleasure of his or her supervisor, the question inevitably arises whether the subordinate can realistically make an objective decision regarding the family member. It would seem difficult, or nearly impossible, to avoid the appearance of a lack of objectivity. Thus, a problem is created under § 23(b)(3), which generally prohibits an official from acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can unduly enjoy their favor in the performance of their official duties. In order to dispel any such conclusion will be deemed unreasonable if the subordinate must disclose in writing to his appointing authority, or if no appointing authority exists discloses publicly that the public official is making a decision affecting his or her supervisor's immediate family member.

Public disclosure is not defined in the conflict law, although the statute makes it clear that all c. 268A disclosures must be made in writing. In fulfilling its function to interpret the statute, the Commission has determined that for state and county officials, this written public disclosure should be made to the appropriate clerk (e.g., an elected county commissioner would file with the county clerk) or to the Commission, where such disclosure will be a matter of public record. For municipal officials, the disclosure should be made, again in writing, to the city or town clerk.