Opinion  EC-COI-85-19

Date:	03/12/1985
Organization:	State Ethics Commission

A member of the Massachusetts Historical Commission (MHC) who also owns a corporation which may have an interest in a matter before the MHC must comply with § 4. Neither he nor his partner may appear on behalf of the corporation or receive compensation in relation to the matter. To avoid violating § 4 or § 5, the corporation should hire for the MHC proceedings an agent or attorney with no ownership interest in the company.

Facts

You are a member of the Massachusetts Historical Commission (MHC). Pursuant to G.L. c. 9, § 26C and 27C and 950 CMR 71.00 et seq: Procedures to Protect the Historic and Archaeological Properties of the Commonwealth, the MHC works with state agencies to protect historic properties which may be adversely affected by a proposed project. If a state agency determines that a project will have an effect on a historic property, the agency must notify the MHC. G.L. c. 29, § 27C. Within thirty days, the MHC executive director will determine whether the project will have an adverse effect on a historic property, 950 CMR 71.07(2), and will thereafter consult with the state agency over alternative steps to eliminate or mitigate the adverse effect. Id.

You have an ownership interest in ABC, a real estate development corporation. ABC plans to develop a parcel of land. You anticipate that ABC will be dealing with the state agency DEF in relation  to certain issues. As a result, DEF will be in a position to determine whether the project affects historic property and whether to institute further review by MHC. It is also possible that MHC will review ABC's proposals

Questions

Does G.L. c. 268A permit you to remain on the MRC while your company is involved in the project?

Answers

Yes, subject to the limitations described below.

Discussion

As an MHC member, you are a state employee for the purposes of G.L. c. 268A. EC-COI-83-83. Because you serve without compensation as an MHC member, you are also treated as a "special state employee" under G.L. c. 268A and are subject to fewer restrictions than those with which a full-time state employee must comply.

Two kinds of restrictions apply to you. The first, addressed under § 6, limits your official MHC actions. Under § 6, you may not officially participate^[1] in any particular matter^[2] in which either you or ABC has a financial interest. An example of a restricted matter would be an MHC proceeding to determine whether a project developed  by ABC would adversely affect an historic house. Should such a matter come before MHC, you must refrain from participation, notify your appointing official and make full disclosure of such financial interest; the appointing official shall thereupon either:

1. assign the particular matter to another employee; or
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 in which case it shall not be a violation for you to participate in the particular matter. Copies of such written determination shall be forwarded to you and filed with the Commission.

The second kind of restriction is addressed by G.L. c. 268A, § 4(a) and (c) and limits your outside activities with ABC. Under § 4, applied to you as a special state employee, you may not receive compensation from or act as agent for ABC in relation to any particular matter in which you have either participated or which falls within your official responsibility^[3]as an MHC member. The agency determination of whether a project may have an adverse effect on historic property is a "particular matter" which falls within your official responsibility. EC-COI-84-9. You are therefore required by § 4 to avoid appearing before the MHC or otherwise acting as agent for ABC with respect to the MHC adverse effect determinations. You are also prohibited from receiving compensation in relation to this determination, even if someone else represents ABC in the MHC determination process. Under § 5(d), your partner is similarly prohibited from acting as agent of ABC in those proceedings. To avoid placing either you or your partner in violation of § 4 or § 5, ABC should retain for the MHC proceedings an agent or attorney who does not have an ownership interest in ABC.

In response to the concerns which you raise in your opinion request, § 4 will not require you to resign from MHC to allow ABC to proceed with the development. The limitations of § 4 will apply only if an ABC project matter comes before MHC and will restrict your (and your partner's) involvement only with respect to the particular matters on which MHC or its staff must rule.

 

End Of Decision 

^[1] For purposes of G.L. c. 268A, § 1(j) "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."

^[2] For purposes of G.L. c. 268A, § 1(k) "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."

^[3] For purposes of G.L. c. 268A, § 1(i) "official responsibility" is defined as "the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action."