Opinion

Opinion EC-COI-84-16

Date: 01/30/1984
Organization: State Ethics Commission

The conflict of interest law does not prohibit a state agency from entering into contracts with another state agency where the agency heads of each agency are married. Both spouses would be subject to § 23.

 

Table of Contents

Facts

You are the Commissioner of a state agency (ABC) and you are married to the Commissioner of another state agency (DEF). ABC has initiated a federally funded program. ABC is contracting with many for-profit and non-profit entities, including state and municipal agencies, to provide services connected with this program. ABC anticipates contracting with DEF for such services. The proposed contract provides that ABC compensate DEF for these services. The contract includes a provision for the audit and inspection of DEF books, records and other data kept in connection with the contract by ABC and other state and federal agencies.

Question

Does the conflict of interest law, G.L. c. 268A, prohibit this contract between ABC and DEF or any future contracts between these two agencies because of the relationship between the two Commissioners?

Answer

No, as long as you both comply with the provisions of § 23 as discussed below.

Discussion

As state employees, you are subject to the standards of conduct, § 23, of the law. The provisions of § 23 address the appearance of improprieties as well as actual wrongdoing. Pursuant to § 23, a state employee is prohibited from using or attempting to use his official position to secure unwarranted privileges or exemptions for himself or others. Further, no state employee shall by his conduct give reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by the kinship, rank, position or influence of any party or person. These provisions will govern your actions in relation to contracts between ABC and DEF. For example, potential issues under § 23 would come into play during the course of ABC's audit or monitoring of DEF's performance under the contract. If you became aware of a significant contract breach by DEF and chose to not pursue that breach on behalf of ABC because of your relationship with your wife, you would violate these provisions.[1]

Section 23 also prohibits a state employee from improperly disclosing materials or data within the exemptions to the definition of public records as defined by G.L. c. 4, § 7, and which were acquired by him in the course of his official duties and from using such information to further his personal interests. This section would apply to prohibit you and your wife from divulging certain information to each other that could affect the contractual arrangements between ABC and DEF.[2]

 

End Of Decision

[1] In view of the hypothetical nature of your question, this opinion does not address all situations in which § 23 might come into play. You should therefore renew your opinion request with the Commission if questions related to § 23 arise during the implementation of the contract.

[2] On the basis of the information which you have provided. there would appear to be no spousal financial interests which would be affected by the participation of either you or your spouse in the contract. See, G.L. c. 268A, § 6.

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