Opinion

Opinion EC-COI-84-22

Date: 02/21/1984
Organization: State Ethics Commission

A state employee involved in licensing who also holds a license does not violate the conflict of interest law by operating a business or being employed privately within the industry that requires the license, subject to the restrictions in §§ 4, 6, 23(b)(2) and 23(c).

 

 

Table of Contents

Facts [1]

You are an investigator with a state agency (ABC). You are responsible for enforcing the rules and regulations applicable to individuals licensed by ABC and assist in the conducting of examinations of license applicants.

You also hold a license in the field regulated by ABC, which you need only routinely renew. You are not required to take any examinations administered by ABC. You would like to either a) operate your own business in the field regulated by ABC, or b) work for other businesses within ABC's jurisdiction while remaining an investigator for ABC. You would only perform any such work outside the regular hours of your state employment.

Questions

May you...

a) operate your own business within the field regulated by ABC, or

b) be employed by other businesses within ABC's jurisdiction. while employed by ABC as an investigator?

Answers

a) Yes, and

b) yes, provided you comply with the restrictions outlined below.

Discussion

As an investigator, 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[2] in which a state agency is a party or has a direct and substantial interest. Your company, as well as any other you would work for, 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 these businesses would be covered by § 4, as would investigations by ABC of work performed.

Section 6 of G.L. c. 268A prohibits you from participating as an investigator in any particular matter in which you 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;
  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 an investigator, it is likely that the exercise of many of your duties may be affected by § 6. For example, you, your business, and any such business employing you would have a financial interest in complaints about and investigations of those businesses and other firms in the area with which those business would compete. See EC-COI-82-95. Licensing determinations affecting you, your own business, your employer's business and 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 or those businesses are financially interested come before you as investigator.

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, or improperly disclose such materials[3] or use them to further your personal interests.

As an investigator in a regulatory agency, you have a great deal of power over practitioners and firms under ABC's jurisdiction. Therefore, in the performance of your duties, you must avoid conduct which gives reasonable basis for the impression that you may be unduly influenced by your private employment. To help avoid problems from arising under § 23 you must disclose to your appointing official your intent to seek such employment.

Your access to ABC employees and information, and your authority as an investigator demand your strict compliance with the provisions of § 23 regarding confidential information. No information unavailable to the general public regarding ABC's examinations or procedures may be transmitted to anyone by you or used to benefit them or your private business. You should not in any way discuss with ABC employees any complaints or investigations involving you, your business, businesses employing you, or competitors. Only with such strict compliance with the provisions of § 23 will you be able to maintain your investigator position while operating a business within ABC's jurisdiction.

 

End Of Decision

[1] Because you are both employed in the same capacity in the same agency, and the law will apply similarly to you, this opinion will be written as if requested by one person.

[2] For the purpose 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 government organizations, powers, duties, finances and property." G.L. c. 268A, § 1(k).

[3] 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).

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