Opinion  EC-COI-83-145

Date:	10/25/1983
Organization:	State Ethics Commission

Facts

The Walter E. Fernald state School (Fernald) is a facility within the Department of Mental Health (DMH). Fernald operates the Templeton Colony (Colony) in Baldwinville, MA which houses 182 mentally retarded men. In addition to the support services Templeton Colony receives from DMH, the Ferncol Friends Inc., a private, non-profit corporation (Corporation), was established to provide further assistance to the Colony. The primary goal of the Corporation is to provide activities and other benefits for the Colony's residents. To this end, the Corporation raises significant funds which it makes available to the Colony to support the client programs. The Corporation does not have a contract with DMH to provide services to the Colony.    

The Corporation also has an unpaid Advisory Board (Board)which consists of "citizens interested in the problems of retardation and human handicap." See By-Laws of Ferncol Friends, Inc. The Board members are not members or officers of the Corporation. The role of the Board is to assist the Corporation in providing support to the Colony by developing or identifying programs which require the Corporation's financial support. The Board also keeps the Corporation aware of the needs of mentally retarded citizens within and outside the Colony. The Board consists primarily of present state employees who are staff members of the Colony.

Question

Does the conflict of interest law, G.L. c. 268A, permit the employees of the Colony to serve as members of the Board?

Answer

Yes, subject to the limitations discussed below.^[1]

Discussion

As state employees working at the Colony, the provisions of section 4(c) apply to the individuals in question. Section 4(c) prohibits a state employee from acting as agent or attorney, otherwise than in the proper discharge of his official duties, for anyone other than the state in connection with any particular matter^[2] in which the state is a party or has a direct and substantial interest. This provision is designed to prevent state employees from assisting non-state parties such as the Corporation in their dealings with the state. Decisions and determinations concerning programs and activities involving the residents of the Colony are particular matters in which the state, through DMH, has a direct and substantial interest. As long as the state employees on the Board do not act as the Corporation's representative or spokesperson before DMH or other state agencies in relation to these matters, they will not violate section 4(c). By merely serving on the Board, a state employee will not violate the law. For example, it is permissible for state employees to participate in internal Board discussions or recommendations related to the Colony. See, EC-COI-82-45, 81- 158. On the other hand, by appearing before any state officials or agencies on behalf of the Board, by signing, in their Board capacity, documents or correspondence directed to state officials or agencies, or by acting as spokespersons for the Board in their dealings with the state, state employees would be acting as the agent of the Corporation in violation of section 4(c). See, United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y. 1970).^[3]    

Section 23 of the law also applies to those state employees who also serve on the Board. This section provides that no state employee shall "by his conduct give reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by the kinship, rank, position of any other party or person."

This provision addresses the activities of Board members as state employees should matters involving the Corporation come before them in that capacity. They must avoid giving the impression that they are favoring the Corporation in pursuing their state duties. This provision would apply where Board members are involved in their state capacity in determining how the revenue from the Colony's Cordwood and Logging Program is divided between the Commonwealth and the Corporation.

This section further prohibits a state employee from improperly disclosing confidential information or using such information to further his personal interest. In this regard, the state employees on the Board are prohibited from divulging to the Corporation confidential information they acquire as staff members of the Colony or using that information as the basis of their recommendations to the Corporation.

End Of Decision  

^[1] You should disseminate the contents of this advisory opinion to the DMH employees who serve on the Board.

^[2] 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, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court ... G.L. c. 268A, § 1(k).

^[3] The activities described above are merely examples and do not constitute the entire range of conduct which would rise to the level of "agency" within the meaning of section 4(c). Should questions arise over the application of this statute, state employees serving on the Board may request further guidance from the Commission.