Opinion  EC-COI-83-119

Date:	08/16/1983
Organization:	State Ethics Commission

The wife of a municipal official responsible for awarding contracts is employed by a company seeking those contracts. The official would not have a financial interest in the contracts if his wife has no ownership interest in the company and her salary is paid from other contracts. However, under §23, he must refrain from disclosing to his wife confidential information related to the company and from discussing with the company his wife's promotion. He also may not give subordinates evaluating the company's performance the impression that his personnel decisions will be affected by their recommendations concerning his wife's company.

Facts

You are the Superintendent of Schools in the Town of ABC (Town). Just prior to your selection as superintendent, in July, 1982, the ABC School Committee (School Committee) awarded a five-year computer contract to DEF, a Rhode Island-based corporation which employs 80 field representatives and other employees. In September, 1982, DEF hired your wife as a sales representative/regional manager for a service area outside of the ABC area, and she does not have any direct dealings with the ABC School Department. Your wife's salary is based entirely on sales commissions, and she has no ownership interest in DEF.

Question

What restrictions does the conflict of interest law, G.L. c. 268A place on your activities with respect to present or future DEF contracts with the School Committee.

Answer

You will be subject to the restrictions set forth below.^[1]

Discussion

 As school superintendent for the ABC School Committee, you are a municipal employee for the purposes of G.L. c. 268A, § 1(g). Three sections of G.L. c. 268A are relevant to your situation.

 1. Section 19

This section prohibits you from participating^[2] in any particular matter^[3] in which a member of your immediate family, such as your wife, has a financial interest. The DEF contract is a particular matter, and your activities in signing, evaluating, recommending the contract or in preparing specifications for the contract could constitute participation in that particular matter. However, the limitations on your participation will arise under § 19 only if your wife has a financial interest in the contract. Since your wife has no ownership interest in DEF, and her compensation from DEF is based solely on contracts with entities other than the School Committee, she does not have a financial interest in the contract between DEF and the School Committee; you may therefore participate in the DEF contract on behalf of the School Committee while your wife retains her present financial arrangement with DEF.^[4]

  2. Section 20

This section prohibits you from having a financial interest in a second contract made by the Town of ABC or an agency of the Town.  However, your wife's employment with a company which has a contract with the School Committee does not place you in violation of § 20. This conclusion is based on the fact that your wife has no financial interest in a contract with the Town or agency of the Town, and also because, in any event, her financial interest would not be imputed to you. Compare:EC-COI-80-105; 80-60; 83-37.

 3. Section 23

As a municipal employee, you are also subject to the standards of conduct set forth in G.L. c. 268A, § 23; three provisions contained within these standards would be applicable to your situation. 

1.  Under § 23 ¶ 3(2), you are prohibited from improperly disclosing confidential information^[5] acquired by you in the course of your official duties or using such information to further your personal interests. Your situation poses obvious potential problems under this paragraph because, on the one hand, you are married to an individual who is employed by DEF, and who presumably has a loyalty to DEF; on the other hand, you have access as school superintendent to internal information which would be of interest to DEF, for example, reviews of DEF's performance under the contract or evaluations of the merits of competitor proposals for future contracts. You should therefore carefully observe the mandate of this paragraph and refrain from disclosing to your wife any confidential information related to the DEF contract with the School Committee.
2. Under § 23 ¶ 2(2), you may not use or attempt to use your official position to secure unwarranted privileges or exemptions for yourself or others. Although the prospective fact situation which you present does not pose inherent problems under this provision, you should bear it in mind in the course of your dealings with DEF as School superintendent. In particular, you should refrain from discussing with DEF the subject of advancing your wife's employment status at DEF. (c) Under § 23 ¶ 2

3. you are prohibited 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 influenced by the kinship, rank, position or influence of any party or person. This provision would be applicable to you whenever you are discussing the DEF contract with other employees of the School Department, particularly those employees who monitor or implement the contract. Inasmuch as you are responsible for the management of the School Department and presumably are in a position to affect personnel decisions such as contract renewal, promotions, and discipline, you should take steps to avoid giving the impression to these employees that your personnel decisions affecting them would be related to their specific evaluations or recommendations under the DEF contract.

End of Decision

^[1] The advice rendered in this opinion is intended to guide your prospective conduct. This opinion does not constitute a review or determination of the propriety under G.L. c. 268A of acts which have already occurred.

^[2] For the purposes of G.L. c. 268A, "participate" means participate in agency action or in a particular matter personally and substantially as a state. . . employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.

^[3] For the purposes of G.L c. 268A, "particular matter" is defined as any judicial or other proceeding, application, submission. Request for a ruling or other determination, contact, claim, controversy, charge, accusation, arrest, decision, determination finding but excluding enactment of general legislation by the general court. G.L. 268A, § 1(k).

^[4] You also ask whether the result would be affected if your wife were promoted to a salaried position with DEF. Given the hypothetical nature of the question, it would be premature to formulate a response at this time. However, the result would depend upon whether her salary were attributable to the DEF contract with the School committee.