| Date: | 01/30/1984 |
|---|---|
| Organization: | State Ethics Commission |
A state employee who drafted legislation for one state agency creating a program administered by another state agency may assist the second state agency in an uncompensated advisory capacity. The state employee may also participate as a selectman in approving the town's application for state aid under the program.
You are an employee of the state Executive Office of Administration and Finance (A&F). That agency oversees the issuance of bonds by state agencies and must approve bond authorizations by those agencies. You are also a member of the Board of Selectmen (Board) in a Town (Town).
The state legislature created a Program (Program) designed to provide financial assistance to certain cities and towns for the construction, reconstruction and improvement of certain facilities. The Program will be implemented and administered by a state agency (ABC), and the state-provided funding will be generated from the issuance of general obligation bonds of the Commonwealth specifically to fund the Program. Municipalities eligible to participate in the Program may, if approved by the Mayor, Board of Selectmen or Town Manager, make application to ABC to receive funds. The city or town must match whatever funds it receives from the Program from some other source (s). You drafted the bill which created the Program. You have been asked by ABC to assist that office on a voluntary basis in drafting rules and regulations for the implementation of the Program. You would review draft work done by ABC employees and offer general guidance in the organization and structure of the rules, regulations and procedures. You would not be compensated for this assistance.
1: May you participate as a member of the Town Board in approving an application for state aid through the Program?
2: May you participate in an uncompensated advisory capacity in assisting ABC in the formulations of rules, regulations and procedures for implementing the Program?
1: Yes.
2: Yes.
As an employee of A&F, you are a state employee as defined in the conflict of interest law, G. L. c. 268A, §1 et seq., and, as a result, are subject to the provisions of that law. As a state employee, you are prohibited by §4 of the conflict law from being compensated by, or acting as agent or attorney for, anyone other than the state in connection with a particular matter1/ in which the state is a party or has a direct and substantial interest. The Town's application for the Program would be a particular matter in which the state, through ABC, is a party. Your approval of the Town's application as a member of the Board could place you in violation of §4. However, an exemption to that section provides: This section shall not prohibit a state employee from holding an elective or appointive office in a city, town or district, nor in any way prohibit such an employee from performing the duties of or receiving the compensation provided for such office. No such elected or appointed official may vote or act on any matter which is within the purview of the agency by which he is employed or over which such employee has official responsibility. ABC is the state agency authorized to implement and administer the Program. The Town's application will be reviewed and decided upon by ABC. Even though A&F has certain general authority in regard to bond issues of state agencies, and the funds for the Program will come from such a bond issue, the particular matter on which you will acting as a town board member is not within the purview of A&F, the state agency by which you are employed. Therefore, the exemption to §4 allows you to participate in the decision by the Town to apply for funds pursuant to the Program. Further, your voluntary, uncompensated assistance to ABC in the formulation of rules, regulations and procedures for the Program does not make you a state employee of that agency for purposes of the conflict law. Compare, EC-COI-82-54; 79-12 (informal, temporary and uncompensated assistance rendered to a state agency does not implicate state employee status).
Section 6 of the conflict law prohibits you from participating as a state employee in any particular matter in which a business organization by which you are employed has a financial interest. Municipal corporations like the Town are considered business organizations, EC-COI-81-56, and the Town has a financial interest in the ABC's approval or disapproval of its application pursuant to the Program. Even if the Town's financial interest could be extended to the preparation of the rules, regulations and procedures which will govern the program, the conclusion reached above regarding your assistance to ABC proscribes application of §6 to that work because you are not participating as a state employee as required by §6. Therefore, §6 does not prohibit you from assisting ABC in the manner you suggest. Moreover, there is no indication that any of your duties at A&F where you clearly are a state employee, would implicate §6.
End of Decision
DATE AUTHORIZED: January 30, 1984
