Opinion

Opinion EC-COI-85-17

Date: 02/26/1985
Organization: State Ethics Commission

The director of the division of fairs in the Department of Food and Agriculture may race his own horses at Foxboro in events other than those scheduled during the Foxboro Fair or as part of the Mass. Sire Stakes Program without violating §§ 4, 6 or 23. After a one-year cooling off period, he may also have financial dealings with Massachusetts breeders without violating § 23.

Table of Contents

Facts

You are the director of the Division of Fairs in the Massachusetts Department of Food and Agriculture (Department). In that capacity, you are responsible for promoting agricultural and animal husbandry in the Commonwealth through the establishment and holding of fairs. G.L. c. 128, 138A. Until recently, you also oversaw the thoroughbred and standardbred horse breeding programs of the Commonwealth. A director has since been appointed to the newly created Division of Equine Programs within the Department, which severs the equine program from Division of Fairs. See G.L. c. 20, § 6.

The Department is allotted an annual sum of prize money for standardbred and thoroughbred races. All state purses are paid directly to the winners, rather than via the raceway management. Department-sponsored Sire Stakes Races, limited solely to Massachusetts bred pacers and trotters (standardbred), are run at food and agriculture fairs authorized by the Department, and at Foxboro Raceway, a commercial track. Although Foxboro Fair has also been granted ten days of racing at the Foxboro Raceway in the past, you state that will not be the case this year. Only a limited number of fairs have been certified this year, and they will all be involved in thoroughbred, as opposed to standardbred racing.

Your duties as director require your involvement in the certification of fairs. In order for a fair to be certified or approved, the Division of Fairs must inspect the premises and the quality and number of agricultural and animal exhibits to be included, and make a recommendation to you. You then make a recommendation to the Board of Food and Agriculture, which makes its decision on certification, which must formally be approved by the commissioner of the Department (Commissioner). Once a fair is certified, which enables them to be eligible for racing dates granted by the State Racing Commission, you state that your Division has no further involvement with races.

You also own and have raced pacers and trotters in Massachusetts, New Hampshire and Maine for a number of years. At the request of the Commissioner, you stopped racing in Massachusetts at the beginning of 1984. However, both you and your wife continue to own and train standardbreds.

Questions

1. Does G.L. c. 268A permit you to race at Foxboro in events other than those scheduled during the Foxboro Fair or as part of the Massachusetts Sire Stakes Program?

2. In view of your official responsibilities as Director, does G.L. c. 268A permit you to have financial dealings with Massachusetts breeders?

Answers

1. Yes.

2. Yes, subject to the limitation set forth below.

Discussion

1. Racing at Foxboro Raceway

As Division of Fairs Director for the Department, you are a state employee subject to the provisions of the conflict of interest law. See G.L. c. 268A, § 1(q). Section 4(a) of c. 268A prohibits a state employee from receiving compensation from anyone other than the commonwealth or a state agency in relation to any particular matter[1] in which the commonwealth or a state agency is a party, or has a direct and substantial interest. The races you contemplate entering at Foxboro Raceway are not connected with a Department-certified fair or otherwise sponsored by the state. However, the State Racing Commission (SRC) and its staff regulate, through supervision and licensing, horse and harness racing in the Commonwealth. G.L c. 128A, § 1 et seq.; 205 CMR 2.01 6.15. The extent of the SRC's regulation of such races includes, inter alia, the licensing of a horse owner, driver and trainer; the attendance of representatives of the SRC at races to ascertain if SRC regulations are being complied with; and the hearing of appeals brought before if. Id. Due to its pervasive regulation of horse racing, the SRC, and thus the state, would appear to have a direct and substantial interest in the races you wish to enter. You would not violate § 4(a) by entering your horses in these overnight races and receiving a portion of their winnings, however, because you would not be receiving "compensation" for § 4 purposes. "Compensation" is defined in G.L. c. 268A, 11(a) as "any money, thing of value or economic benefit conferred on or received by any person in return for services rendered or to be rendered by himself or another." See EC-COI-83-61. Your receipt of money would be based on your ownership interest in the horse, not due to your performance of services. Thus, despite the state's interest in the outcome of such races, your receipt of overnight race event monies would not violate § 4(a).[2]

Section 6 prohibits you from participating[3]as a state employee in a particular matter in which, in relevant part, you or an immediate family member has a financial interest. it does not appear that you would have any occasion in your official capacity to participate in any matter affecting the overnight races at Foxboro Raceway, inasmuch as they are not a part of a fair certified by the Department. Moreover, the purses to be won in these races are not state funded but rather are a percentage of the bets which individuals place with the Raceway.[4] In this regard, you participate neither in decisions affecting the eligibility for racing dates nor in decisions affecting the amount of purse money you would be competing for nor in overseeing the disbursement of the purses to the winners in these races. Therefore, § 6 would likewise not prohibit you from entering such races.

Section 23 sets forth standards of conduct for state employees, including that no state employee should use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others. G.L. c. 268A, § 23(¶2)(2). You state that to be eligible for these overnight racing events, you must enter qualifying races which are held under the rules and regulations of the U.S. Trotting Association. The horses which qualify as fast enough are then ranked by preference date; i.e. those which ran the qualifying race on the earliest calendar day receive top eligibility for the racing event. Actual post positions of the nine horses participating in the racing event are not appointed, but rather are drawn at random. From these facts, it again appears that you would have no opportunity to secure any special privileges from the Foxboro Raceway management for such a race based on your position as Director.[5] The Commission therefore concludes that the conflict of interest law does not preclude you from racing your horses in overnight events at Foxboro.

2. Dealings with Massachusetts Breeders

Section 23 prohibits a state employee from using or attempting to use his official position to secure unwarranted privileges or exemptions for himself or others and from by his conduct giving reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties. Prior to the establishment of the Division of Equine Programs in December of last year, you were the Department official responsible for overseeing the horse breeding programs in the state. Because of this fact, and the great likelihood that you will be called upon as a resource by the new Director of Equine Programs during this transition period, you must take great care to abide by the § 23 standards to avoid even the appearance of a conflict. Any favorable treatment of a breeder, either in your own official capacity until December of last year or in any current recommendation or advice to the Director of Equine Programs, could be viewed as a prelude to your private financial dealings with such a breeder. However, if you observe your proposed one year cooling off period before entering into any financial dealings with Massachusetts dealers, the Commission concludes that you would avoid giving such a impression.

 

End Of Decision

[1] Particular matter is defined in G.L. c. 268A, § 1(k) as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, or finding..."

[2] Section 4(c) prohibits a state employee from acting as agent or attorney for anyone other than the commonwealth or a state agency in relation to any particular matter in which the state is a party or has a direct and substantial interest. Because you cannot act as your own agent, you would not violate § 4(c) by applying for your own owner's or trainer's license.

[3] Participate is defined in G.L. c. 268A, § 1(j) as to "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."

[4] Because the purses are not state funded, no issues are raised under § 7 of the conflict law. Compare previous Commission advisory opinion EC-COI-82-30.

[5] Should you or your wife decide at a later date to enter horses in the Mass. Sire Stakes Program races, potential conflict issues would be raised under §§ 6 and 23 as well as under § 7 (see footnote 4). For example, you would be prohibited from participating (e.g. through the rendering of advice to the Supervisor of Standardbred) in the oversight of state purse allocation in the Program. If and when you or your wife enter a state sponsored race while you are still a state employee, you should renew your advisory opinion request with the relevant facts at that time.

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