You have been appointed to serve as a member of a state Board (Board). You are an officer of and majority stockholder in Associates, Inc. a firm performing work in the Commonwealth. You are also a minority stockholder in another company. Each firm has contracts with state agencies.
You ask what effect the conflict of interest law, General Laws Chapter 268A, will have on your public and private activities once you are sworn in as a member of the Commission.
In rendering this opinion, the Commission has been guided by and will continue to follow for the near future, the opinions and interpretations of the Attorney General issued prior to November 1, 1978, the effective date of the Commission's jurisdiction over Chapter 268A matters.
The Board is responsible for promulgating, revising and amending rules and regulations. In this regard, the duties of the Board include adopting rules and regulations relating to all aspects of an industry and the issuance and revocation of permits and licenses. The members of the Board also sit on the Appeals Board, and in this capacity, three-member panels appointed by the Chairman exercise broad authority over appeals filed by persons aggrieved by an interpretation, order, requirement, direction or failure to act by any person or state or local agency charged with the administration or enforcement of the rules or regulations. Sections 4(a) and 4(c) of Chapter 268A prohibit a state employee from receiving compensation from or acting as the agent for anyone other than the Commonwealth or a state agency in relation to any particular matters in which the Commonwealth or a state agency is a party or has a direct and substantial interest. As a member of the Board, you will be a "special state employee" as that term is defined in § 1(o). A special state employee is subject to § 4(a) and 4(c) only in relation to particular matters which he has participated in (§ 1(j)), or which is within his "official responsibility" (§ 1(i)), or which is pending in his agency if he has served for more than 60 days in the past year. A contract is a "particular matter" as that term is defined in § 1(k). You have advised us that none of the contracts which either firm have are with the Board. Since, as a member of the Board, you will not have any involvement in or official responsibility for any of those contracts, § 4 will not prohibit you from receiving compensation from and/or acting as the agent for either firm in relation to these contracts. See Attorney General Conflict Opinion 630. This section would, however, prohibit you from receiving compensation from or acting as the agent for anyone other than the Commonwealth in relation to any preceding or other particular matter in which you have participated or have official responsibility as a member of the Board.
Section 6 prohibits a state employee from participating in any particular matter in which he, his immediate family or partner, or business organization in which he serves as an officer, director, trustee, partner or employee has a financial interest. You have advised us that you will not sit on the Board on any matter relating to either firm. Even so, should such a matter arise, § 6 also requires you to advise the official responsible for your appointment (the Governor) and the Ethics Commission of the nature and circumstances of the particular matter and to make a full disclosure of your financial interest therein. Section 7 prohibits a special state employee from having a financial interest in a contract made by a state agency except in certain situations. As an owner of more than one percent of both firms, you have a financial interest in the contracts which each of these firms has with the state. See § 7, ¶ 2. Section 7(d) requires you to file with the State Ethics Commission a statement making full disclosure of your interest and the interests of your immediate family in all of the contracts which these firms now have with the state. You should file the necessary disclosure whenever either firm enters into a new contract with a state agency. Finally, there are obviously conflict of interest prohibitions which may apply to you or your firms depending upon the specific circumstances and/or new or additional facts. The commission cannot advise you about the application of the conflict law to all the possible circumstances that exist or may arise in the absence of specific facts. You may always request our advice should a situation arise which is of concern to you.
End Of Decision
