You are a full-time state employee in a Division of the Trial Court of the Commonwealth. You serve without compensation as President of a Mental Health and Retardation Area Board of the Department of Mental Health (DMH). You also are the President of ABC a non-profit corporation which contracts with DMH to provide mental health services.
You ask whether you may continue to serve in these capacities without violating the state conflict of interest law, G.L. c. 268A.
In rendering this opinion, the Commission has relied on the facts as you have stated them and has not made any independent investigation of those facts. ABC is a non-profit corporation established several years ago by the Area Board to implement desired mental health programs and has the ability to obtain funding for these programs from various sources, including DMH. The ABC by-laws provide that at least three Area Board members be on the ABC Board of Directors. As President of ABC, you sign contracts between ABC and DMH but are not compensated for your position. As an employee of the Trial Court, you are a state employee.[1] As such, you are prohibited by s.4(a) from being compensated by anyone other than the commonwealth in relation to a "particular matter"[2] of direct and substantial interest to the state or in which the state is a party. In addition, s.4(c) prohibits you from acting as agent or attorney, regardless of compensation, for anyone other than the commonwealth in relation to any particular matter in which the state is a party or has a direct and substantial interest. Contracts between ABC and DMH would be particular matters to which the state is a party. Since you are not paid as President of ABC , s.4(a) would not apply. However, in signing the ABC - DMH contracts on behalf of ABC, you are acting as agent for someone other than the commonwealth in this particular matter to which the state is a party in violation of s.4(c). Therefore, you are prohibited from signing these contracts, or otherwise acting as agent for ABC before a state agency, by the conflict law.
As an Area Board member, s.6 of G.L. c. 268A prohibits your participation in particular matters in which a business organization, like ABC, of which you are an officer or director has a financial interest. Although you state that the Area Board makes decisions on Area policy rather than the award of individual contracts, you must refrain from action on particular matters in which ABC has a financial interest. If such a matter should arise, s.6 requires that you advise the official responsible for your appointment and the Ethics Commission of the nature of the matter and ABC's financial interest in it. Your appointing official may then assign these matters to another employee, assume responsibility for them himself, or make a written determination filed with the Ethics Commission that the interest is not so substantial as to affect the integrity of your service. You advise us that as President of the Area Board, you are only required to vote when your vote is necessary to break a tie between the other Board members and that, in your two and one-half years on the Board, the President has never been forced to vote. You should still take the steps outlined above if, as President, your vote is required on a matter in which ABC has a financial interest. Finally, s.7 of the conflict of interest law prohibits you from having a financial interest in a contract made by a state agency. Any funding agreement between ABC and DMH would be such a contract. However, since you are not compensated as President of ABC, you have no financial interest in these contracts so s.7 does not apply.
In conclusion, the conflict of interest law prohibits you as President of ABC from acting as agent in relation to matters and contracts with DMH or other state agencies. You also must refrain from participating as President of the Area Board in matters in which ABC is financially interested should they arise.
End Of Decision
