| Date: | 05/05/1983 |
|---|---|
| Organization: | State Ethics Commission |
- This page, EC-COI-83-64, is offered by
- State Ethics Commission
Opinion
Opinion EC-COI-83-64
Table of Contents
Facts
You are an attorney and also a member of Governmental Center Commission (GCC) of the City of X (City), a municipal commission established by (citation omitted) for the purpose of "establishing, operating and maintaining a government center within the city of X" (citation omitted). The GCC is funded by appropriations from the City (citation omitted).
From 1976 to 1979, you were employed by an attorney in another city. This attorney was hired in 1982 at your suggestion to represent the GCC in a suit brought against that agency. You disclosed your prior relationship with the attorney and abstained from the vote of the GCC Commissioners which authorized his hiring. During the course of his representation, the GCC authorized payment to the attorney on several occasions, and you participated in at least one of these authorizations. The attorney has submitted his final bill and, at a meeting of four GCC members, it was voted by three members, including yourself, to pay $7,500 to the attorney. One GCC member abstained from this vote. It is possible that there will be further actions taken in the future with respect to this matter.
Question
By voting to authorize payments to the attorney, would you violate the state conflict of interest law?
Answer
No.
Discussion
As an appointed member of the GCC, a municipal agency, you are a municipal employee as defined in G.L. c. 268A, § 1(g) and, as a result, are subject to the provisions of the conflict of interest law, G.L. c. 268A, § 1 et.
Section 19 of the conflict of interest law, in relevant part, prohibits you from participating in any "particular matter"[1] in which you, your partner, or a business organization by which you are employed has a financial interest. You clearly have no financial interest in any payment made to the attorney since your employment relationship with him ended in 1979. Therefore, § 19 does not apply to the facts you present.
Section 23 of the conflict law contains certain standards of conduct which apply to all municipal employees. That section proscribes the use or attempted use of your official position to secure an unwarranted privilege or exemption for yourself or another. It also prohibits conduct which gives reasonable basis for the impression that anyone may improperly influence or unduly enjoy your favor in the performance of your official duties.
Recently, the Commission issued a Commission Advisory regarding the use by a state employee of the private services of a vendor or contractor over whom he has official responsibility as a state employee. See {Commission Advisory 83-1} (enclosed). Therein, the Commission stated that "even if the decision to use the private services is made out of friendship or because of a job well done, or if actual favoritism or special treatment by either the state official or the vendor/consultant cannot be established, the conduct may nevertheless create an impression of favoritism or special treatment." The case you present is analogous to this situation, but somewhat reversed because your private relationship preceded the public one. The Commission advised that when a state official intends to conduct private dealings with such a vendor/consultant, the official should 1) notify his appointing authority of the impending relationship and 2) seek an advisory opinion regarding the propriety of the
arrangement.
You have no current professional relationship with the attorney outside his role as attorney for the GCC. Upon suggesting him as a candidate for this position, you state that you fully disclosed to the GCC your prior relationship with the attorney and abstained from the vote authorizing his employment. There is no evidence in your request which indicates that the attorney was unqualified to handle this case or that any payments made to him were excessive in light of the work that he performed. Therefore, although it would have been preferable for you to seek an advisory opinion before participating in the authorization of payments to the attorney, your abstention from the vote to hire him, your non-participation in some of the payment authorizations, and the lack of evidence of any undue remuneration indicate that § 23 was not violated by your actions and would not be violated in the future.
End of Decision