| Date: | 12/20/1984 |
|---|---|
| Organization: | State Ethics Commission |
A state employee does not violate the conflict of interest law by also holding a position of Honorary Consul of a foreign government but is subject to §§ 4(c) and 23 of the conflict of interest law.
You are an official with state agency ABC. In that capacity you administer certain programs. You are currently being considered for appointment as Honorary Consul of DEF. You anticipate that your primary functions would include contributing to DEF's development through an advocacy role and providing service to the DEF community.
Does G.L. c. 268A permit you to maintain your ABC position while also serving as Honorary Consul to DEF?
Yes, subject to the conditions set forth below.
As an ABC official, you are a "state employee" for the purposes of G.L. c. 268A. Two sections of that law are relevant to your situation.
This section prohibits you from acting as the agent or attorney for anyone other than the Commonwealth in relation to any "particular matter"[1] in which the Commonwealth or a state agency is a party or has a direct and substantial interest. This section reflects the principle that a "person cannot serve two masters" and that public officials should not be permitted to step out of their official roles to assist private parties or persons in their dealings with government. See, Perkins, The New Federal Conflict of Interest Law, 76 Harv. L. Rev. 1113, 1120 (1963). Section 4 precludes circumstances which might lead to a conflict of loyalties by public employees. See, Town of Edgartown v. State Ethics Commission, 391 Mass. 82,89(1984).
Section 4(c) does not prohibit all private advocacy, but only advocacy which calls the state's interest into play. For example, if you were to assist DEF residents in processing immigration applications before federal agencies, the prohibition of § 4(c) would not apply because the state is not a party to or directly and substantially interested in the immigration applications before federal agencies. On the other hand, if you were to assist DEF citizens in submitting Section 8 housing applications to the state Office of Communities and Development, or by appearing on their behalf before that agency, the § 4(c) prohibition would apply because the state has a direct and substantial interest in the Section 8 housing applications. The propriety of your advocacy, therefore, will turn on whether the state is a party to or has a direct and substantial interest in the matter for which you are advocating the interests of the DEF community. Given the hypothetical nature of your question and the difficulty in foreseeing each particular matter which may arise under § 4(c), the Commission cannot prepare a complete list of prohibited and permissible matters. You should, however, bear in mind the § 4(c) standards and renew your opinion request if you are unsure about specific matters as they arise.
As a state employee, you are also subject to G.L. c. 268A, § 23. In particular § 23(¶ 2)(3) prohibits you from, by your conduct, 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 affected by the kinship, rank, position or influence of any party or person. This paragraph is intended to avoid situations which raise questions over the integrity and impartiality of your work as an ABC official. Potential issues under § 23 may arise because the constituency which is affected by the exercise of some of your official duties is the same constituency which you would service as Honorary Consul. In particular, questions such as the appropriateness of certain ABC decisions for newly arrived members of the DEF community may overlap your two roles. As a safeguard to avoid the impression that your ABC work might be unduly affected by your competing loyalties to the DEF community, you should notify your appointing official of the nature of your ABC responsibilities and the extent to which your Honorary Consul role may overlap with those responsibilities. Your appointing official would therefore be responsible for overseeing the potential conflict of interest and for determining how the credibility and impartiality of the agency can be maintained.
Another paragraph of § 23, § 23(¶ 2)(2), prohibits you from using your official position to secure an unwarranted privilege or exemption for yourself or others. To comply with this paragraph, you should not use your ABC office and time for your Consul activities. Further, in the course of your advocacy role as Consul, you should avoid creating the impression that you are lending the prestige of your ABC office and the endorsement of ABC to your private position. See, EC-COI-84-127.[2]
End Of Decision
