| Date: | 03/16/1982 |
|---|---|
| Organization: | State Ethics Commission |
A member of the General Court who is a principal in a private corporation may have a financial interest in a contract with a county agency, because he does not participate in or have official responsibility for the activities of the county agency. He must, however, refrain from participating as a member of the General Court in the approval of any budget items relating to the county agency with which his corporation contracts.
You are a member of the General Court. You also, along with your wife, are a principal in a private corporation. Since 1965, that corporation has been employed by a County Jail and House of Correction (County Jail).
You ask whether the state conflict of interest law, G.L. c. 268A, prohibits your corporation from continuing this employment.
The Commission concludes that it does not.
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. As a member of the General Court you are a state employee, G.L. c. 268A, s.1(q), and subject to the conflict of interest law. Section 14 of that law prohibits a state employee from having a direct or indirect financial interest in a contract made by a county agency in whose "activities" the state employee participates or over which he has official responsibility. To "participate" under the conflict law means to participate in agency action or in a "particular matter"[1] personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j). "Official responsibility" is defined as the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L. c. 268A, s.1(i). The General Court annually approves the operating budgets of 12 of the Commonwealth's 14 counties. (Suffolk and Nantucket Counties' appropriations are made by the Boston City Council and the Nantucket Town Meeting, respectively.) A recommended budget for each of these 12 is submitted to the entire legislature by the Committee on Counties. In the course of this process, the legislature can increase, decrease or eliminate the funding of any item in the recommended budget. This includes the budget of any individual agency within a county, such as the County Jail. By participating in this budget approval for the County generally, and that of the County Jail specifically, you can conceivably affect the operation of the County Jail. However, this budget approval, by itself, will not be considered to be among the type of "activities" of the agency contemplated by the provisions of s.14. If so, members of the General Court would be considered to be participating in the activities of every agency, state or county, whose budget was subject to legislative approval. Therefore, the contract between your corporation and the County Jail does not violate s.14.[2]
Section 6 of G.L. c. 268A prohibits a state employee from participating as such in a particular matter in which he, a member of his immediate family or partner, or a business organization in which he is a partner, employee, officer, director or trustee has a financial interest. The County Jail is a business organization (see EC-COI-81-119) and has a financial interest in the General Court's appropriation legislation. Your corporation is employed by the County Jail. Although the enactment of general legislation by the General Court is specifically excluded from the definition of "particular matter" (see note 1, p. 1), these budget approvals, by their purpose and effect, are special legislation and within the definition of "particular matter." EC-COI-81-81. Therefore, you are prohibited by s.6 from participating as a member of the General Court in the approval of any budget item which applies specifically to the County Jail or any other county agency with whom your corporation is contracting to provide services.[3] However, you may participate in the final approval of the entire County budget. Graham v. McGrail, 370 Mass. 133, 140 (1976). Additionally, s.6 contains provisions requiring a state employee whose duties would otherwise require him to participate in such situations to disclose the nature and circumstances of the matter to his appointing official and the Commission. As an elected member of the General Court you have no appointing official but you should still make a disclosure to the Commission wherever such a situation arises.[4]
End Of Decision
