You currently serve as a member of a local Redevelopment Authority (LRA) and occupy a position for which the Secretary of Communities and Development is the appointing authority. You are under consideration for the position of Director of a state agency (ABC).
(Identifying description of state agency ABC deleted.) You are now under consideration for the position of Director of ABC and wish to know whether the conflict of interest law permits you to serve concurrently at the LRA and ABC.
The Commission advises you that it does, subject to the limitations set forth below.
In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not made any independent investigation of those facts. Should you be appointed as the Director of ABC, you would be a state employee within the meaning of G.L. c. 268A, s.1(q). As a state employee, you would be prohibited from participating[1] in any matter[2] in which any business organization in which you serve as an officer or employee has a financial interest. The LRA locality is a business organization for the purposes of s.6. See, Attorney General Conflict Opinion No. 613, EC-COI-81-62, 81-56. Further, the LRA is a municipal agency of the locality. See, G.L. c. 121B, s.4; Attorney General Conflict Opinion No. 25. Thus, the prohibition of s.6 will apply whenever you would be called upon to participate in any particular matter in which either the LRA or the locality has a financial interest. However, for the prohibition to apply, the particular matter must affect the locality or the LRA financially and uniquely, in a way that it does not affect other cities and towns. See, Graham v. McGrail, 370 Mass. 133, 139 (1976); EC-COI-81-153.
You should, therefore, refrain from participating in any ABC determination involving solely the locality or the LRA. Further, should such a matter come before you where your duties would otherwise require you to participate in such a particular matter you must advise the official responsible for appointment to your position and the State Ethics Commission of the nature and circumstances of the particular matter and make full disclosure of such financial interest, and the appointing official shall thereupon either (1) assign the particular matter to another employee; or (2) assume responsibility for the particular matter; or (3) make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the commonwealth may expect from you, in which case it shall not be a violation for you to participate in the particular matter. Copies of such written determination shall be forwarded to you and filed with the State Ethics Commission by the person who made the determination. Section 4 is also relevant to your situation. As a state employee, you would be permitted to hold an appointive municipal office provided that you do not vote or act on any matter which is within the purview of the agency by which you are employed or over which you have official responsibility. G.L. c. 268A, s.4. par.11. Accordingly, you may serve simultaneously for the ABC and LRA provided that you do not vote or act on any matter as a LRA member which is within the purview of ABC or over which you have official responsibility. (Identifying "particular matter" deleted.) Finally, you should be aware that G.L. c. 268A, s.23 will place some limitations on your activities as an ABC employee. G.L. c. 268A, s.23(e) prohibits you from giving reasonable basis for the impression that any person can improperly influence or unduly enjoy your favor in the performance of your official duties, or that you are unduly affected by the kinship, rank, position or influence of any party or person.
In view of the fact that you were appointed to the LRA by the Massachusetts Secretary of Communities and Development, you should be mindful of the aforementioned prohibition whenever your ABC duties involve the exercise of any authority over the Secretary of Communities and Development.
End Of Decision
