Opinion  EC-COI-83-17

Date:	02/04/1983
Organization:	State Ethics Commission

A marine archaeologist is advised that § 4 of the conflict of interest law would prohibit them from being hired as a marine archaeologist in connection with salvage or recovery operations the require a permit from the state Board of Underwater Archaeological Resources if they were to be appointed to the board.

Facts

You are a marine archaeologist. You are interested in serving as a member of the Board of Underwater Archaeological Resources (Board). It is the responsibility of the Board to encourage the discovery, reporting and preservation of historical, scientific and archaeological information about underwater archaeological resources located within the inland and coastal water of the Commonwealth. G.L. c. 6, § 108. Divers who find artifacts, abandoned property, treasure trove or sunken ships which have remained unclaimed for one hundred years or more, which are valued at five thousand dollars or more, and which are within the inland and coastal water of the Commonwealth, must apply for a permit from the Board for the salvage and removal of these underwater archaeological resources. Id. If the permit is approved, the Board then oversees the salvage and recovery operations, decides whether the diver can keep the artifacts he finds, and establishes the monetary and historic value of the artifact. The Commonwealth is entitled to keep twenty-five percent of the monetary value of the artifact. The diver usually hires one or more marine archaeologists to aid him in the recovery operation.

Question

Would G.L. c. 268A restrict your consulting activities while you also serve as a Board member?

Answer

Yes, pursuant to the conditions set forth below.

Discussion

In your capacity as a member of the Board, you would be a state employee within the meaning of G.L. c. 268A, § 1(q). As an unpaid Board member, you would be a "special state employee" under G.L. c. 268A, § 1(o) and are therefore subject to the prohibitions of G.L. c. 268A, albeit in a less restrictive way.

Sections 4(a) and 4(c) prohibit state employees, other than in the proper discharge of their official duties, from receiving compensation from, or acting as the agent for, anyone other than the Commonwealth or a state agency in connection with any particular matter^[1] in which the Commonwealth or a state agency is a party or has a direct and substantial interest. As a special state employee, you may not receive compensation from or act as the agent for anyone other than the Commonwealth or a state agency in relation to a particular matter;

(a) in which you have participated as a state employee or

(b) which is or within one year has been a subject of your official responsibility^[2] or

(c) which is pending in the state agency in which you are serving, provided that you have served for more than sixty days during the prior three hundred and sixty-five day period.

The application for a Board permit, the decision to grant the permit, decisions regarding the oversight of the salvage operation and the distribution of the bounty are all particular matters which would be within your official responsibility as a Board member. Therefore, you may not receive compensation from a permit holder or act as his agent in connection with any underwater excavation which is granted a permit by the Board. This, in effect, limits you to participating only in those excavations which are less than one hundred years old and worth less than $5,000, and would not come before the Board.^[3]

End Of Decision 

^[1] G.L. c. 268A, § 1(k) defines particular matter 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."

^[2] G.L. c. 268A, § 1(i) defines official responsibility 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."

^[3] Although the Board's enabling statute. G.L. c. 6, § 179, requires that a marine archaeologist be a Board member, nothing in that statute authorizes the "proper discharge of [your] official duties" to include consulting with divers on matters under the official responsibility of the Board. EC-COI-81-74.