You are a member of the General court and Chairman of ABC an unincorporated association of (members omitted) (purpose omitted) ABC intends to pursue its goals through intervention before state and federal agencies dealing with (omitted) ABC is seeking funding to hire expert technical witnesses and attorneys to represent its interests before various agencies. No member of ABC will receive reimbursement or payment for his services as the funding will go entirely to the consultants and attorneys hired. You also indicate that no consultant, attorney or firm affiliated with any of ABC's members will be hired. ABC has applied for funding through a federal grant that is administered by the state agency DEF.
You ask whether it would violate the conflict of interest law, General Laws Chapter 268A, for ABC to accept the grant if DEF approves its application. Pursuant to G.L. c. 268A, § 3 (g), the Commission is authorized to render an advisory opinion only upon the written request of an individual subject to Chapters 268A and 268B. Accordingly, the Commission cannot advise ABC in general but will outline the limitations placed upon you as a member.
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.
DEF is the state agency mandated by Chapter (description of function of DEF and its relation to ABC omitted.)
As a member of the General Court, you are a state employee as that term is defined in Section 1(q) of G.L. c. 268A. Section 6 of G.L. c. 268A prohibits you from participating in any particular matter in which you, or a business organization which you serve as an officer or director, have a financial interest. The enactment of general legislation is specifically excluded from the definition of "particular matter" by Section 1(k). Section 6, however, prohibits you from participating as a member of the General Court in any special legislation affecting ABC. See, EC-COI-79-86, 80-13, 81-81. Should any special legislation be filed, you would be required by the second paragraph of Section 6 to file a disclosure of that matter and of your financial interest therein with the Ethics Commission. Although there is an exemption provision contained in § 6, that exemption does not apply to an elected official. See, EC-COI-79-86.
Section 7 of G.L. c. 268A prohibits you from having a financial interest, directly or indirectly in a contract made by a state agency, in which the Commonwealth or a state agency is an interested party. DEF is a state agency as that term is defined in Section 1(p) of G.L. c. 268A. Therefore, the agreement between DEF and a grant recipient is a contract made by a state agency in which the agency is an interested party for the purposes of § 7. However, based upon the facts you have given the Commission, it concludes that you will not have a prohibited financial interest in the contract between ABC and DEF. A "financial interest" has been defined by the Court as being a private right, distinct from the public interest or as an interest not shared with a substantial segment of the public. Graham v. McGrail, 370 Mass. 133, 139 (1976). It has also been interpreted as being an "actual interest" or "stake" in a contract made by a state agency in which the Commonwealth or a state agency is an interested party. See Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U.L. Rev. 299, 375 (1965). You do not have a "private right" arising from, or a "stake" in the contract between ABC and DEF. As a member of ABC you do not receive any compensation under the agreement with DEF or acquire any other personal interest. Any funds ABC receives pursuant to the DEF grant will go entirely to independent consultants and attorneys hired by ABC to represent the consumer interest.[1]
Additionally, you should be aware of the provisions of Section 23 of G.L. c. 268A. This section sets out standards of conduct which must be adhered to by all state employees and involves the appearance of an impropriety as well as overt acts. Section 23(d) and (f) prohibit a state employee from using or attempting to use his official position to secure unwarranted privileges for himself or others and from pursuing a course of conduct which will raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust. Therefore, you should not use your official position to privately benefit ABC. See, for example, EC-COI-81-88 (use of a legislator's office space for the benefit of a private, non-profit corporation prohibited). Since the Commission cannot speculate as to all the possible situations which may arise, if you have any questions about the application of Section 23, you should contact the Commission.
End Of Decision
