Dear
You are a member of ABC, a public body which provides a state agency (DEF) with input and advice. You are also a partner in XYZ, Inc. (XYZ), a private company which does a certain kind of work on a contract basis. You ask whether you would violate the state conflict of interest, G.L. c. 268A, if your company contracts with DEF. The commission concludes that you would.
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.
The ABC was established by statute to "act as an advisory body for review and reaction with regard to decisions relating to a subject within DEF's responsibility and to provide continued communication between certain communities and DEF. It is comprised of representatives appointed by the Boards of Selectmen of several towns. Each of these members represents groups which have an interest in the subject within the purview of DEF's authority. Each of the towns also appoints a representative to represent the Board of Selectmen on the ABC. ABC members have three year terms and are not compensated. Although DEF must meet with the ABC, the recommendations made have no binding effect on DEF and DEF controls neither its membership nor operation in any way.
The ABC is a state agency for purposes of the conflict of interest law. Although it receives no appropriations and expends no state funds, it is an "independent state commission", rather than "an agency of a county, city or town". See, G.L. c. 268A, § 1 (p). It was established by state statute and is concerned with the operation of a state agency which serves in relation to a matter of state rather than local control.
The ABC's input is directed to a state agency. It is an organization created by the legislature to effectively communicate the views of those most directly affected by DEF in a certain area. The fact that the ABC represents only a limited number of communities and interests does not affect the determination that it is a state agency.[1]
As the representative appointed by a Board of Selectmen, you are a person holding a position in a, state agency and, thus, a state employee. G.L. c. 268A, § 1 (q). Therefore, you are subject to the conflict of interest law. However, since you are not compensated, you are a "special state employee" as defined in § 1(o) (1) of Chapter 268A.
The contract at issue is designed to familiarize various people in the area with the operation of DEF. You became aware of DEF's interest in awarding this contract through sources within DEF but outside and independent of those who meet with the ABC. You state that neither the tour proposal nor the decision to award the contract were subjects of ABC business.
Section 6 of the conflict law prohibits you from participating[2] as an ABC member in a particular matter in which you, or a business organization in which you are partner or employee, have a financial interest. Clearly, both XYZ and you, as a partner, have a financial interest in the decision to award the contract and this type of decision is a particular matter as that term is used in Chapter 268A. However, since the ABC did not play any role in the original proposal or the award of this contract, you did not participate in this decision as an ABC member. Therefore, § 6 does not apply to your situation; however, §§ 7 and 23 do apply.
Under § 7, a state employee is prohibited from having a direct or indirect financial interest in any contract in which the state or a state agency is an interested party. By virtue of your role as a partner in XYZ you have a financial interest in a contract with a state agency, DEF Clause (d) in the second paragraph of § 7 states that the section shall not apply to a special state employee, as yourself, who does not participate in or have official responsibility for any activities of the contracting agency (DEF) and who files a statement making full disclosure of the prohibited financial interest to the Ethics Commission. Despite the non-binding nature of the ABC's action, the advice and recommendations rendered must be considered by DEF in their policies organizations like the ABC would be purposeless if their efforts need not and consistently were not considered in policymaking decisions. Therefore, the Commission concludes that ABC members participate in DEF activities in regard to DEF policy. Compare, EC-COI-81-68 (participation with no power to approve or disapprove). Accordingly, you cannot take advantage of the exemption contained in clause (d).[3]
Section 23 of Chapter 268A contains standards of conduct for all government employees. Subsection (a) prohibits you from accepting outside employment which would impair your independence of judgment in the performance of your official duties. This contract would constitute the type of employment prohibited by this provision. Your consideration of future matters as an ABC member could be affected by your advantageous contractual relationship with DEF. Moreover, the public's perception of this relationship an ABC member, who must often represent interests and views adverse to DEF contracting with that very agency implicates section 23(f) which prohibits the pursuit of a course of conduct which will raise suspicion that you are likely to be engaged in acts that are in violation of your public trust.
In conclusion, despite the fact that the ABC is an independent state body its interaction with DEF constitutes participation by its members in DEF activities and prevents the operation of the exemption from § 7 clause (d). Further, despite the availability of the gubernatorial exemption in clause (e), the overriding provisions of § 23 prevent you from accepting this contract regardless of your procurement of the Governor's approval.
End Of Decision
