Opinion  EC-COI-84-1

Date:	01/09/1984
Organization:	State Ethics Commission

A state licensing official may open a business employing his sons within the trade he licenses provided that 1) he does not represent the business or its employees before any state agency, 2) he does not participate as a state official in any matter in which he or a member of his family has a financial interest and 3) he strictly complies with the provisions of §23. The latter requirement means that he must not convey to his sons any confidential information regarding board examinations or procedures and may not discuss with board members or employees any complaints involving his business, his sons, or his competitors.

Facts

You are the Executive Secretary of a Board of Registration (Board). In your position, you oversee the day-to-day operation of the Board, its employees and its investigators. You supervise the preparation and administration of licensing examinations. And you advise local officials on the establishment of local regulations and on violations of state and local regulations. You also hold a Board license, which you need only routinely renew. You are not required to take any Board examinations. You would like to open up a Board - regulated business on the South Shore, which will employ your sons, while still Executive Secretary of the Board.

Question

May you open up a Board - regulated business while Executive Secretary of the Board? 

Answer

Yes, provided you comply with the restrictions detailed below.

Discussion

       As Executive Secretary, you are a state employee as defined in the state conflict of interest law, G.L.c. 268A, §1 et seq., and, as a result, are subject to the provisions of that law. Section 4 of the conflict law prohibits a state employee from being compensated by, or acting as agent or attorney for anyone other than the state in connection with a particular matter^1/ in which a state agency is a party or has a direct and substantial interest. The Board - regulated company, as well as your sons, would be someone other than the state. Therefore, you are prohibited by §4 from acting as their agent before any state agency in connection with particular matters in which the state is a party or is directly and substantially interested. For example, applications to state agencies for permits or licenses by your sons or the business would be covered by §4.

       Section 6 of G. L. c. 268A prohibits you from participating as Executive Secretary in any particular matter in which you, any member of your immediate family, or any business organization in which you are an officer, director or employee, has a financial interest. Should such a matter come before you, you must disclose the nature of the matter and the financial interest in it to the Ethics Commission and your appointing official. That official must then either 1) assign the matter to another employee; 2) assume responsibility for the particular matter; or 3) make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Commonwealth may expect from you. Because of the broad range of your responsibilities as Executive Secretary, it is likely that the exercise of many of your duties may be affected by §6. For example, you, your sons and your business would have a financial interest in complaints about and investigations of the business and other firms in the area with which your business would compete. See EC-COI-82-95. Licensing determinations affecting you, your sons, the business of your competitors would also be covered by §6. Therefore, you will have to comply with the provisions of that section when these or other matters in which you, your sons or the business are financially interested come before you as Executive Secretary.

       Section 23 of the conflict law provides standards of conduct which apply to all state employees. That section states that you may not use your official position to secure or attempt to secure unwarranted privileges or exemptions for yourself or others. You also are required to avoid conduct which gives reasonable basis for the impression that you may be unduly influenced in the performance of your duties. Section 23 provides further that you may not accept employment or engage in any professional activity which will require you to disclose confidential information gained by reason of your official position or authority, and from improperly disclosing such materials^2/ or using them to further your personal interests. Your access to Board members and information, and your ability to direct Board activities demand your strict compliance with the provisions of §23. No information unavailable to the general public regarding Board examinations or procedures may be transmitted to your sons or used to benefit them or your private business. You should not in any way discuss with Board members or employees any complaints or investigations involving you, your sons, your business, or your competitors. Only with such strict compliance with the provisions of §23 will you be able to maintain your Executive Secretary position while operating a Board - regulated business.

End of Decision

DATE AUTHORIZED:                               January 9, 1984

^1/ 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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.” G.L.c. 268A, §1(k).

^2/ These materials are defined as “materials or data within the exemptions to the definition of public records as defined by [G. L. c. 4, §7].” See G.L. c. 268A, §23 ¶3 (2).