Opinion  EC-COI-81-10

Date:	01/20/1981
Organization:	State Ethics Commission

Needs a blurb.

Facts

You are a full-time employee for the University of Massachusetts at Amherst (the "University"). In that capacity, you are a member of the Task Force process through which products X, Yand Z are acquired by the University. One of the XYZ firms with which the University does considerable business and may in the future do additional business is ABC. Since (year omitted) you have served during our personal and vacation leaves as a consultant to ABC (duties and responsibilities omitted).
You have always declined to consult on projects involving Massachusetts state schools.

Question

You ask whether you may continue to serve as university employee and as a consultant to ABC without violating the law, General Laws Chapter 268A.

Answer

We conclude that you may, provided you comply with the provisions of section 6 discussed below.

Discussion

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.

Section 6 of Chapter 268A prohibits a state employee from participating [1] in any particular matter in which a business organization for which he is an employee has 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 State Ethics Commission, "that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Commonwealth may expect case it shall not be a violation for the employee to participate in the particular matter."
     

As University employee you are a state employee as that term is defined in section 1(q). As a consultant to ABC, you are an employee of a business organization for purposes of section 6.Decisions or determinations made by the Task Force with respect to the purchase by the University of X, Y and Z, the preparation of specifications for and awards of the contract for such a purchase, are "particular matters."[2] You advise us that the University already owns ABC products, and that ABC "is the most widely used in higher education." Since there is substantial probability that, ABC will bid on any University contract for additional X, Y and Z, ABC has a financial interest in the Task Force's decisions regarding such purchases.[3]

Decision

Accordingly, section 6 will prohibit you from participating as a member of such a Task Force. Moreover, since your duties as university would otherwise require you to participate in the decision to purchase X, Y and Z you must comply with the disclosure provisions of section 6 and may only participate in the contracting process if you obtain the certification permitted by that section.[4]
 

Section 4 of G.L.c. 268A prohibits state employees from receiving compensation from anyone other than the Commonwealth or a state agency in relation to any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest. Section 7 prohibits a state employee from having a direct or indirect financial interest in a state contract. Pursuant to these sections, you should continue to decline any requests you receive from ABC to contract on projects involving Massachusetts State schools.

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

[2] "Particular matter" is defined in section 1(k) as "any. . . application, submission... contract . . .decision, determination[or] finding."

[3] See United States v. Mississippi Valley Generating Co.,364 U.S. 520, 555-558 (1961).

[4] The materials you submitted indicated that you have in the part participated in such Task Force proceedings after making full disclosure to and obtaining the approval of the President, 2 Vice-Presidents and the General Counsel of the University. In the future, you must comply with the written disclosure and certification provisions of section 6.

 

End Of Decision