Opinion  EC-COI-84-144

Date:	12/20/1984
Organization:	State Ethics Commission

The chairman of a board of registration may participate in the license application of a fellow board member subject to the provisions of § 23(b)(3) of the conflict of interest law.  The board member applying for the license is subject to §§ 6 and 23(b)(2) of the law.

Facts

You are the chairman of a state board of registration (Board). Among the Board's powers is the approval of applications for certain licenses (identifying information omitted). The Board may require either an oral or written examination, depending on certain factors.^[1] The board is not limited to granting a fixed number of annual approvals, and will grant such approvals to any qualified applicant.

One of the Board members has applied to the Board for approval of a certain license.

Question

Does G. L. c. 268A permit you to review and determine the merits of the application of one of your Board members?

Answer

Yes, subject to the conditions set forth below.^[2]

Discussion

As a member and chairman of the Board, you are a "state employee" for the purposes of G.L. c. 268A. As a state employee, you are subject to the restrictions of G.L. c. 268A, § 23(¶ 2) (3) which 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. Issues under this section inevitably arise when members of a state agency must evaluate the qualifications of one of their peers. Absent safeguards, the process may create the perception in the eyes of the public and, more specifically, of individuals who are competing with the member applicant, that the member will receive more favorable treatment than outsiders with similar qualifications.

One safeguard to protecting the integrity of the process' applies not to you but to the member applicant.^[3] These safeguards require that the member disqualify himself from any official participation^[4] in the consideration of his application, G.L. c. 268A, § 6, and refrain from using his official position to secure an unwarranted privilege or exemption for himself, G.L. c. 268A, § 23(¶ 2)(2) (for example, by expediting the processing of his application).

With respect to your situation, nothing in G.L. c. 268A inherently prohibits you from evaluating the qualifications of the member applicant. See, EC-COI-84-40, in which the Commission issued an opinion to one of its members seeking guidance on the propriety of his remaining on the Commission while serving as the City of Boston Corporation Counsel. However, you should be aware that the more objective the process of evaluating the merits of the member applicant is, the less likelihood there will be that the Board has created the impression of undue favoritism. To the extent that the Board will be reviewing the member's application pursuant to the objective standards of (identifying regulation omitted), there are relatively few opportunities in the process for subjective bias by the reviewing members. In particular, the decision as to the kind of examination to be administered, i.e., oral as opposed to written, is determined by objective criteria. You should bear the principles of § 23(¶ 2) (3) in mind, however, in administering and evaluating the members oral examination.^[5] In that regard, it is suggested that you make a full written record of the reasons supporting whatever decision you reach on the application.

End Of Decision 

^[1] (Identifying regulation omitted)

^[2] Although this advisory opinion is addressed to you, you may share the information with the six other Board members who are similarly situated.

^[3] lf deemed desirable, the member applicant may seek a formal advisory opinion from the Commission addressing in more detail the limitations of G.L. c. 268A.

^[4] For the Purposes of G.L. c. 268A, "participate" is defined as participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, § 1(j).

^[5] Enclosed is a copy of the Code of Conduct for Employees of the Division of Registration in the Executive Office of Consumer Affairs. Some of the provisions, notably § 1, 3, and 4 supplement the principles discussed above.