You are the chief executive of a state board (board).
You ask two questions concerning the a foundation (Foundation), a private, non-profit corporation organized to support and to make expenditures to or for the benefit of activities which come under Board's jurisdiction:
- May Foundation reimburse you and members of Board's staff for expenses (e.g., expenses related to conferences, business luncheons and business-related publications) incurred in the discharge of your duties without violating the state conflict of interest law, G.L. c. 268A?
- If such reimbursement can be made, may Board staff members serve as officers, directors or members of the Foundation, within any necessary guidelines, without violating G.L. c. 268A?
The Commission concludes that the conflict of interest law prohibits the proposed direct reimbursement by Foundation, but does not prohibit members of the Board's staff from being officers, directors or members of the Foundation, although certain restrictions may be placed on their activities.
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. The Board was established by (statute) as the governing body of (description of area of operations and jurisdiction). The Board itself is made up of (number of) members appointed by (person) to staggered terms. (Statute cited) They are not compensated but may be reimbursed for expenses incurred. Id. The Board appoints the person who serves as the chief executive of the Board and the Board may delegate its authority, in whole or in part, to that person its discretion. Id. at s.4. The chief executive receives a statutory salary plus expenses incurred by him in the discharge of his duties. Id. The Foundation, in accordance with its stated corporate purpose, will solicit and receive funds from corporate and charitable sources who regularly contribute to entities of this nature and who are in no way subject to the Board's jurisdiction or control. Boards members, however, do serve as officers or directors of some of these potential contributors. It is anticipated that Foundation will avoid engaging in any activity over which the Board would have jurisdiction. As Board's chief executive, you are a state employee as defined in s.1(q) of G.L. c. 268A.[1] As such, s.3(b) prohibits you from accepting or receiving anything of substantial value, other than as provided by law for the proper discharge of your official duty, for or because of any official act or act within your official responsibility. Whenever you attend a conference or business luncheon as chief executive you do so representing the Board and are, therefore, performing an act within your official responsibility. Inasmuch as any direct reimbursement you receive from Foundation would not be from the Board i.e., as provided by law (statute cited), that reimbursement would be something of value for or because of these acts within your official responsibility and thus, prohibited by s.3(b).[2] This is true even though reimbursement would result in no net economic gain because you would be able to avoid what would otherwise be an out-of-pocket loss. And, although an individual reimbursement may be a nominal amount, it is readily conceivable that in the aggregate, such reimbursements will constitute substantial value. See, Commonwealth v. Famigletti, 4 Mass. App. 584 (1976) is "of substantial value").
Regarding your second question, there is no per se prohibition preventing Board's staff members from serving as officers, directors or members of the Foundation. Section 4, however, prohibits them from receiving compensation from or acting as agent or attorney for anyone other than the Commonwealth in relation to any "particular matter"[3] in which the Commonwealth or a state agency is a party or has a direct and substantial interest. The Commission will not speculate as to what matters may arise which would implicate this section and Board's staff members should seek a further advisory opinion should particular facts create a question concerning this section. But, even if not compensated for these positions, these Board staff members should avoid appearing or acting as agents of Foundation before any state agency. Section 6 of G.L. c. 268A prohibits a state employee from participating as such in any particular matter in which he, his outside employer, or any business organization in which he is an employee, officer or director or with which he is negotiating for prospective employment, has a financial interest. Non-profit corporations, like the Foundation, are business organizations. See, EC-COI-81-22. Again, the Commission will not speculate any situations which may occur, and further advisory opinion requests will be proper should questionable facts arise. In cases where the staff member's duties would otherwise require him to participate and that participation is obviously prohibited by s.6, the staff member must notify his appointing official and the Commission of the nature and circumstances of the matter and the financial interest involved. His appointing official must then either assign the matter to another, assume responsibility for the matter himself or make a written determination that the interest is not so substantial as to affect the staff member's integrity. Copies of this determination must be given to the staff member and the Commission.
In conclusion, the direct reimbursement arrangement, as proposed, would violate the provisions of the conflict of interest law. Board's staff members may serve as officers, directors or members of Foundation within the framework outlined above.[4]
End Of Decision
