| Date: | 04/17/1984 |
|---|---|
| Organization: | State Ethics Commission |
The Department of Food and Agriculture is advised that § 7 of the conflict of interest law prohibits a newly hired Department employee from participating in the Agriculture Preservation Restriction Program administered by the Department.
The Massachusetts Department of Food and Agriculture (Department), is a state agency established by G.L. c. 20, § 1. One of the Department's activities is preserving farmland in the Commonwealth through the purchase of the land development rights belonging to individual farm owners. These purchases are accomplished through the Agricultural Preservation Restriction Program (APR) whose activities are authorized by G.L. c. 132A, § 11 and over which the Department's Commissioner has official responsibility. The APR is funded through appropriations made by the General Court, and it operates in the following manner. Farm owners who are interested in selling their development rights to the Commonwealth make application to the APR. If the APR board members deem the farmland appropriate for purchase of its development rights, an independent appraisal of the value of those rights is made. If the farm owners finds the figure derived from the appraisal acceptable, the Commonwealth, acting through the APR, purchases the development rights in exchange for an agreement from the farm owners that the only permissible use of the land will be agricultural. This restriction on land use is a permanent one which runs with the land. The only way it can be removed is by a two-thirds vote of the General Court. Notice of the restriction is filed with the appropriate registry of deeds.
A farm owner filed an application with the APR. Before any action, including appraisal of the property, was taken on the application, the farm owner was hired as an employee by the Department. He agreed at the time of hire that no action would be taken on his application for the duration of his employment with the Department. The APR would now like to begin processing his application.
Would the Department's purchase of the development rights to its employee's farmland place him in violation of c. 268A?
Yes.
The provision of G.L. c. 268A which is applicable to the situation presented is § 7. That section prohibits a state employee from having a financial interest, directly or indirectly, in a contract made by a state agency, in which the Commonwealth or a state agency is an interested party. Thus the first issue considered here is whether the purchase by the Commonwealth of the agency employee's development rights constitutes a contract within the meaning of the statute. The Commission concludes that it does. The arrangement entered into by the farmowner and the Commonwealth is a contract like any other real estate transaction would be. Both the purchase and sale agreement and the document conveying the development rights are standard form agreements.
The second issue is whether the employee has a financial interest, direct or indirect, in the contract in question. As the direct recipient of state funds, the employee obviously has a direct financial interest in the contract.
The third and last issue is whether the Commonwealth or a state agency is an interested party in the contract in question. The Department's interest (and, by extension, the Commonwealth's interest) in the contract proposed here is clear. The Department is not only a party to the contract but the contract also serves to further one of the Department's activities. The funds to be used are the Commonwealth's.
Although there are some exceptions to the § 7 prohibition, there are very few instances when an employee will be able to contract with his/her own agency. None of the exceptions applies to the employee. Likewise, the fact that the employee made application to the APR in good faith, well in advance of his being hired by the Department, does not alter the result. Because the contract would be entered into during the employee's tenure as a state employee, it is prohibited by § 7.
The policy interests being addressed by the General Court in G. L. c. 268A, § 7 are those of ensuring that state employees not use their positions to obtain contractual benefits from the state or to influence how a contract is monitored, and avoiding any public perception that state employees have an "inside track" on such opportunities.[1] Thus the statute in general and § 7 in particular reflect a reasonable judgment on the part of the General Court that " because it is impossible to articulate a standard by which one can distinguish between employees in a position to influence and those who are not, all will be treated as though they have influence.[2]
End Of Decision
