| Date: | 12/08/1981 |
|---|---|
| Organization: | State Ethics Commission |
A state employee will not be prohibited from being paid by a city to server on its licensing commission provide that, as a city official, the employee does not vote or act on any matter within the purview of the employee’s state agency, in compliance with G. L. c. 268A, § 4. The state employee must comply also with G. L. c. 268A, § 6 regarding any particular matters affecting his city’s financial interests.
You are currently employed on a full-time basis as an ABC Examiner for the Commonwealth Department of DEF. (DEF). The Mayor of the City of GHI recently offered you an appointment on the three-member XYZ Licensing Commission (XYZ) In that capacity, you would rule on the granting or transferring of licenses within the City of GHI and would receive an annual compensation of $500.
You would like to know whether the conflict of interest law, G.L. c. 268A, permits you to serve an the XYZ while you remain an employee of DEF [1].
The Commission advises you that you may, subject to the restrictions 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. As an ABC Examiner within DEF you are a "state employee" within the meaning of G.L. c. 268A, s.1(q). Although Section 4 limits the ability of state employees to represent anyone other than the Commonwealth in connection with any particular in which the Commonwealth has a direct and substantial interest, a recent legislative amendment allows you to hold elective or appointive office in a city, town or district, provided that you do not vote on any matter which is within the purview of DEF or over which you possess official responsibility. St. 1980, c. 10. If appointed to xyz you would hold appointive office in a city within the meaning of s.4. Accordingly, you may perform the duties of an XYZ member provided that you do not vote or act on any matter for XYZ which is within the purview of DEF or over which you have official responsibility as a DEF employee. Situations may arise, for example, where DEF may request XYZ to revoke the RST license of an entity which is delinquent in submitting information to DEF. In such situations, s.4 requires you to refrain from acting or voting on these matters.
G.L. c. 268A, s.6 is also relevant to your situation. This section prohibits state employees from participating in any particular matter in which business organizations of which they are employees have a financial interest [2]. Since cities and their various departments and divisions are "business organizations" for the purposes of s.6 (see Attorney General Conflict opinion No. 613), this section prohibits you from participating as a DEF employee in any particular matter in which the City of GHI has a financial interest. This section further provides that any state employee whose duties would otherwise require him to participate in such a prohibited matter must disclose to his appointing official and the Ethics Commission the nature and circumstances of the 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 interest is not so substantial as to be deemed likely to affect 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."
In conclusion, the Commission advises you that you may serve in both capacities subject to the aforementioned limitations.
End Of Decision
