Opinion  EC-COI-84-50

Date:	04/17/1984
Organization:	State Ethics Commission

The executive director of a non-profit organization that receives funding from the state Executive Office of Communities and Development and which provides assistance in connection with two programs relating to the local housing authority may be appointed to the local housing authority, subject to the restrictions contained in §§ 17, 19, 20 and 23 of the conflict of interest law.

Facts

You were recently appointed as a member of a local Housing Authority (LHA), and also serve as the full-time executive director of ABC, a private non-profit community organization which provides services in the area. Your ABC salary is derived entirely from a federal grant to the state Office of Communities and Development (EOCD). You state that two of ABC's programs involve the LHA. The first is a program under which ABC meets with homeless individuals and assists in referring them to appropriate housing. LHA is one of the placement options, and approximately five elderly homeless individuals are referred annually by ABC to LHA for application assistance. The second is an eviction assistance program under which ABC provides information and a $400 grant for qualifying tenants who have been evicted. Approximately ten tenants in LHA housing units have received assistance under this program. Prior to your appointment as an LHA member, you estimate that you spent approximately two hours weekly in ABC administrative functions related to these two LHA programs. Since your appointment, you have delegated all of your responsibilities related to LHA programs to the ABC director of community programs. You have also refrained from participation as an LHA member in any eviction-related matters in which ABC is involved or likely to become involved.^[1]
 

Question

Does G.L. c. 268A permit you to serve as an LHA member while remaining the executive director of ABC?
 

Answer

 Yes, subject to the limitations described below.

Discussion

Since your appointment as an LHA member, you have been a "municipal employee" for the purposes of G.L. c. 268A, the conflict of interest law. See, G.L. c. 121B, § 7. As an LHA member, you are also a "special municipal employee," id., and are therefore subject to certain provisions of G.L. c. 268A in a less restrictive way.

1. Section 17  

This section prohibits you from receiving compensation from or acting as agent for any party other than the City of DEF (City) in relation to any particular matter^[2] in which the City or a city agency is a party or has a direct and substantial interest and in which you have either participated^[3] or have had official responsibility as an LHA member.^[4] With respect to both the ABC homeless assistance and eviction assistance programs you have removed from your authority as executive director any responsibility for the programs and have delegated that authority to another individual. Therefore, you will not be receiving compensation from ABC for the programs nor will you be acting as the agent or spokesperson for either ABC or individuals in their dealings with LHA under the programs.

2. Section 19

This section prohibits your participation as an LHA member in any particular matter in which, in relevant part, a business organization which employs you has a financial interest. ABC is a business organization for the purposes of this section, EC-COI-82-91, and you therefore must refrain from participating in particular matters in which ABC has a financial interest. Although the ABC homeless referral program does not affect ABC's financial interest, the eviction assistance program does. In view of your decision to refrain from participating as an LHA member in any eviction-related matters in which ABC is involved or likely to become involved, you will not be in violation of G.L. c. 268A, § 19. Whenever such matters arise, the safest course would be to leave the room during the discussion and decisions related to the matters. See, Graham v. McGrail, 370 Mass. 133 (1976).

3. Section 20

As a municipal employee, you are also subject to the restrictions which § 20 places on your having a financial interest in a contract made by the City or a city agency. Inasmuch as your ABC salary is derived entirely from a federal grant through EOCD and is not attributable to grants from the City, your employment with ABC would not place you in violation of § 20. However, should your funding arrangement change, and your salary be attributable to City funds, then § 20 issues would be raised, and you should renew your opinion request with the Commission.

4. Section 23

As a municipal employee, you are also subject to the standards of conduct contained in G.L. c. 268A, § 23. Under these standards a municipal employee may not,

     (a) accept other employment which will impair his independence of judgment in the
     exercise of his official duties;  

     (b) use or attempt to use his official position to secure unwarranted privileges or
     exemptions for himself or others;

     (c) by his conduct give reasonable basis for the impression that any person can
     improperly influence or unduly enjoy his favor in the performance affected by the
     kinship, rank, position or influence or any party or person;

     (d) accept employment or engage in any business or professional activity which will
     require him to disclose confidential information which he has gained by reason of his
     official position or authority;

     (e) improperly disclose materials or data within the exemptions to the definition of public
     records as defined by section seven of chapter four and were acquired by him in the 
     course of his official duties nor use such information to further his personal interest.

Inasmuch as you have insulated yourself from any overlapping functions in both your and ABC positions, the standards of conduct in § 23 will not inherently prohibit your maintaining both positions. EC-COI-84-40. However, you should be particularly mindful of the restrictions on the use of confidential information which you have acquired as an LHA member.

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End Of Decision 

^[1] You state that, while individual eviction cases will not reach the LHA members, overall eviction policy might be on the agenda.

^[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 . . ." G.L. c. 268A, § 1(k).

^[3] 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 employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A. § 1(j).

^[4] It is unclear whether your LHA membership will require your service for more than sixty days annually so as to have the § 17 restriction apply to any matter pending in LHA. However, for practical purposes, it's unnecessary to reach this issue because virtually all matters pending in LHA will be under your official responsibility.