Opinion  EC-COI-84-32

Date:	03/12/1984
Organization:	State Ethics Commission

A special state employee who is a member of a board of examiners of a trade and is also the owner and president of a contracting firm regulated by the board may contract with state agencies other than his own board. He may not participate in board decisions affecting the licensure of his own business or his competitors.

Facts

You are a member of a State Board of Examiners (Board). Your duties include licensing and regulating technicians and companies in a particular field. [citations omitted]. As a Board member, your service is part-time, requiring that you participate in a regular monthly meeting and any special meetings or hearings which are held.

You are also President of a company (ABC) in that field. A substantial portion of ABC’s business involves working as the subcontractor for general contractors who have been awarded contracts by state agencies. Most of your work is secured pursuant to the competitive bidding law, G. L. c. 149, §44F. However, you also anticipate submitting bids to state agencies as a general contractor if you are presented with this opportunity.

Question

Does the conflict of interest law, G. L. c. 268A, permit you to contract with state agencies as a general contractor or subcontractor while serving as a member of the Board?

Answer

Yes, subject to the limitations discussed below.

Discussion

       As a member of the Board, you are a state employee as defined in G. L. c. 268A, §1(q), and, as a result are subject to the provisions of that law.

       Section 6 of G. L. c. 268A prohibits you from participating^1/ as a Board member in any particular matter^2/ in which you, or any business organization in which you are an office, 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; or 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 a Board member, it is likely that the exercise of many of your duties may be affected by §6. For example, you and your business would have a financial interest in complaints about and investigations of the business and other firms in the area with which your business would compete. See EC-COI-82-195. Licensing determinations affecting you or the business of your competitors would also be covered by §6. Therefore, you will have to comply with the provisions of this section where these or other matters in which you, or your business are financially interested come before you as a Board member. See EC-COI-84-1.

       The provisions of §7 of the law also apply to you as a state employee. Section 7 prohibits a state employee from having a financial interest directly or indirectly in a contract made by a state agency. When you enter into an agreement with the state as the subcontractor or general contractor on a project, you will have a financial interest in a contract made by a state agency. However, because you work part-time for the Board, you are a "special state employee" and the provisions of the law will apply less restrictively to you. G. L. c. 268A, §1(o). Specifically, §7 does not apply to a special state employee who does not participate in or have official responsibility for any of the activities of the contracting agency and who files with the state ethics commission a statement making full disclosure of his interest and the interest of his immediate family in the contract…§7(d). In view of the facts presented, you can qualify for the §7 (d) exemption as long as you do not directly or indirectly contract with the Board or any state agency over which they may have jurisdiction.^3/ Pursuant to §7(d), you will have to disclose your interest in each state contract into which you enter. ^4/

       Lastly, §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. For example, you would violate this section if you were to participate, as a Board member, in matters involving a general contractor with whom you have a subcontracting arrangement. Section 23 provides further that you may not disclose confidential information gained by reason of your official position or authority or use such materials^5/ to further your personal interests. Your access to other Board members and information, and your ability to direct Board activities demand your strict compliance with the provisions of §23. No information unavailable to the general public regarding Board examinations or procedures may be used to benefit your private business. You should not in any way discuss with Board members or employees any complaints or investigations involving you, your business, or your competitors. Only with such strict compliance with the provisions of §23 will you be able to maintain your Board membership while operating a business. See EC-COI-84-1.

End of Decision

DATE AUTHORIZED:                        March 12, 1984

^1/ 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).

^2/ For the purposes 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 governmental organizations, powers, duties, finances and property. G. L. c. 268A, §1(k).

^3/ For you to contract with your own board would require not only disclosure but a gubernatorial exemption with the advice and consent of the Governor's Council. See §7(e).

^4/ The letter through which you made your opinion request cannot fulfill the disclosure requirement of §7(d) because opinion requests received by the Commission are confidential. However, you may utilize the enclosed §7 disclosure forms for this purpose.

^5/ 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).