Opinion  EC-COI-80-111

Date:	09/10/1980
Organization:	State Ethics Commission

Facts

Dear:

You are the full-time Chairperson of a Board with the Department of Education (the "Department") In that capacity you monitor private schools for compliance with a law and review and act upon requests from public schools within your region for out- of-district placements. You serve as an elected representative for the Town of to the Regional Vocational Technical High School Committee (the "School Committee"), a municipal agency. See Attorney General Conflict Opinions 98 and 384. You ask whether it violates the conflict-of-interest law, General Laws Chapter 268A, for you to serve simultaneously in both of these positions.  We conclude that you may continue to serve in these positions subject to the caveats discussed below.

In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not conducted any independent investigation of those facts.

Discussion

As a full-time employee of the Department, you are a state employee for purposes of the conflict-of-interest law.  Section 4 of Chapter 268A, as amended by Chapter 10 of the Acts of 1980, prohibits a state employee who holds an elective or appointive municipal position form voting or acting in any matter as a municipal employee which is within the purview of the state agency by which he is employed.

The Department is responsible for regulating and reviewing many of the activities of local school committees.  See generally G.L. c. 15, §1(g). With respect to vocational education, the Department is mandated "to administer and supervise the administration of vocational education programs by every agency in the Commonwealth."  Id. at paragraph 1.  The Department, therefore, pursuant to this mandate and the requirements of the vocational education law, G.L. c. 74, regulates and reviews numerous activities of those school committees which serve regional vocational high schools. A vocational program may not commence without the Department's approval. G.L. c. 74, § 2.  

Approval is based on detailed criteria regarding organization, control, location, equipment, courses of study, qualifications of teachers, methods of instruction, conditions of admission, employment of pupils and expenditures. Id. at § 1 and 630 CMR 4.04-4.14.  Once commenced, approved programs are periodically reviewed and require Department approval of major changes in their regulated aspects. 603 CMR 4.03(5).  If it is determined that a program does not meet Department standards, the Department may withdraw approval and commence actions to withdraw funding of that program.  Id. Accordingly, as a member of the School Committee, you may not, for example, vote on or participate in any discussions regarding any application or submission to or audit by the Department under the vocational education statute.

Moreover, you may not vote on or participate in any discussions of any submission, application, regulations or contract with or requiring the approval of the Department. Accordingly, EC- COI-80-82, 80-107.  Examples of these would be reports of information necessary to compute state school aid (603 CMR 10), programs for bilingual education (G.L. c. 71A), special education (G.L. c. 71B), and policies regarding equal education opportunity (G.L. c. 76, § 5).  While the Commission cannot speculate as to specific situations which you may encounter in the future, you are free to request an additional opinion should a matter arise which is of concern to you.

Section 6 of Chapter 268A prohibits state employees from participating in any particular matters in which business organizations of which they are employees have a financial interest.  That section further provides that any state employee whose duties would otherwise require him to participate in such a prohibited matter must disclose to the official responsible for his appointment and the Ethics Commission the nature and circumstances of that matter and the financial interest involved.  The appointing official may then,

(1) assign the matter to another employee,

(2) assume responsibility for it himself, or

(3) make a written determination to be filed with the Ethics Commission, "that the interests not so substantial as to be deemed likely to affect the integrity of the services which the Commonwealth may expect 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."

Since municipal agencies and corporations are business organizations for purposes of section 6 (see Attorney General Conflict Opinion 613), section 6 would prohibit you from participating personally and substantially as a Department of Education employee in any application, submission, determination or other particular matter in which the School Committee or the Town has a financial interest.  Furthermore, you must file the necessary disclosures should any such matter arise in which your duties would otherwise require you to participate.

Section 23 also restricts your activities as a state employee. Paragraph (d) of that section prohibits a state employee from using or attempting to use his official position to secure unwarranted privileges or exemptions for himself or others. Paragraphs (e) and (f) prohibit a state employee from giving by his conduct reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties or pursuing a course of conduct which will raise suspicion among the public that he is likely to be engaged in acts in violation of his trust. You would violate these last two sections if you were to participate as a Department of Education employee in any matter in which the School Committee or the Town has a direct and substantial interest regardless of whether or not that interest was financial in nature.  Moreover, section 23(c) prohibits you from disclosing to the School Committee, Town officials or employees, or anyone else confidential information acquired by you as an employee of the Department.

As you can see from the above discussion, you may serve in both your state and municipal capacities but your activities in both positions may be curtailed.  Since you have not presented us with the facts of any particular situation, the Commission cannot advise you more specifically about your future conduct as an analysis of the law will depends on the facts of a particular matter.  You should, however, feel free to request another opinion should a matter arise which is of concern to you.
              

STATE ETHICS COMMISSION

BY: 
Robert V. Greco
State Ethics Commission
 

End Of Decision  

^[*] "Participation" is defined in § 1(j) as personal and substantial participation "through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise."

^[*] "Particular matter" is defined in § 1(k) 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."