Opinion  EC-COI-84-25

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

Section 8A of the conflict of interest law will not prohibit a former member of a state board from being appointed executive director of a non-profit organization that provides financial support to a state higher education institution but is otherwise not a part of the institution.

Facts

You recently resigned from your membership on a state Board to accept a position as executive director of a non-profit corporation (Foundation). The Foundation renders financial assistance to the educational programs of ABC University. The Foundation is headed by an eleven-member board of directors, five of whom are affiliated with ABC.^[1] The six remaining directors are elected periodically by Foundation members. The principal office of the Foundation is located on the ABC campus, and the Foundation may use the name and seal of ABC. The Foundation is not established under enabling legislation by the General Court and does not receive funding from ABC; it is privately endowed and annually distributes awards and grants out of the endowment income. Some recent grants have been awarded to organizations involved with publication, theater and music activities. The Foundation does not rely on ABC for its support services, and it contracts privately for legal, accounting and printing services. As executive director, your activities will primarily involve fundraising, and your compensation will be derived solely from the Foundation's private sources.

Question

Does G.L. c. 268A limit your eligibility for appointment as Foundation executive director?

Answer

No.

Discussion

As a Board member, you were a "state employee" for the purposes of G.L. c. 268A. See, G.L. c. 268A, § 1(q). You are therefore subject to the restrictions of § 8A which provides as follows:

• No member of a state commission or board shall be eligible for appointment or election by the members of such commission or board to any office or position under the supervision of such commission or board.
• No former member of such commission or board shall be so eligible until the expiration of thirty days from the termination of his services as a member of such commission or board.

On the basis of the information which you have provided, the Commission concludes that the thirty-day waiting period under § 8A does not apply to you because your executive directorship with the Foundation would not be an "office or position under the supervision of the....board." The Foundation is independent from the Board with respect to its finances, operational control, and organization. Although the Foundation uses the name and premises of ABC, an institution under the jurisdiction of the Board, the Foundation is not subject to control or oversight by ABC. The Foundation utilizes its own private counsel, accounting, and printing services. Funding for Foundation programs is not derived from ABC funds, and grant decisions as well as personnel decisions by the Foundation are made independent of ABC control. Compare, Attorney General Conflict Opinion No. 548 which held that the Lowell Technological Institute of the Massachusetts Research Foundation was a state agency under G.L. c. 268A where that entity was created by statute (G.L. c. 75A, § 23) and subject to management and regulation by the Institute; Op. Atty. Gen. March 24,1972, p. 105 where the same Foundation was deemed to have a sufficient nexus with the Institute so as to bring it under the umbrella of the Institute's status as an institution of higher education.

In view of the independence of the Foundation position from the supervision of the Board, the thirty-day waiting period of § 8A is not applicable to you. Further, no other sections of G.L. c. 268A would appear to be raised by your situation.^[2]

 

End Of Decision

^[1] These five ex-officio members are the president or other officer of ABC, a member of the ABC board of trustees, and members appointed by the alumni association, faculty and student body.

^[2] You also indicate that, until 1980, you served as a member of the ABC board of trustees. Section 23A of G.L. c. 268A establishes a three-year limit on your eligibility for certain offices or positions with ABC. However, that three-year period has already expired, and as discussed above, your Foundation position would not be regarded as a position with ABC.