Opinion

Opinion EC-COI-85-21

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

A general partner of consulting firm may accept a consultant contract with the Executive Office of Energy Resources, subject to the limitations of §§ 4, 6 and 23. Specifically, he may not represent the firm before EOER, share in any fees received by the firm from EOER grant recipients, or participate officially in EOER matters in which the firm has a financial interest.

Table of Contents

Facts

You are a general partner of an engineering firm. Your firm has some involvement with the Alternative Energy Property (AEPP) program under the Executive Office of Energy Resources (EOER), although your firm contracts with the AEPP grant recipient and not with EOER. You have also applied for a consultant contract with EOER. [Description of duties omitted].

Question

What restrictions will G.L. c. 268A place on you if you accept the EOER position?

Answer

You will be subject to the limitations discussed below.

Discussion

As an EOER consultant, you will be a state employee as defined in the state conflict of interest law, G.L. c. 268A, § 1 et seq, and, as a result, will be subject to the provisions of that law. Because your consultant contract will be for thirty hours a week, thus permitting some private employment during normal working hours, you will be considered a special state employee. This status means that the conflict law will apply less restrictively to you under certain circumstances.

Section 4 of the conflict law prohibits a state employee from being compensated by, or acting as agent or attorney for, anyone other than the state in connection with a particular matter[1] in which a state agency is a party or has a direct and substantial interest. This section reflects the principle that a "person cannot serve two masters," and precludes circumstances which might lead to a conflict of loyalties by public employees. See Town of Edgartown v. State Ethics Commission, 391 Mass. 82, 89 (1984). As a special state employee, however, you are only subject to the § 4 prohibitions in relation to particular matters (a) in which you have participated[2] as a state employee or (b) which are or within one year have been a subject of your official responsibility[3] or (c) which are pending in your state agency, if you serve more than sixty days during a 365-day period.

Because it appears that you will be working for EOER for more than 60 days a year, clause (c) will apply to you. In that regard, § 4(a) would prohibit you from receiving compensation from any non-state party (e.g., your firm, a municipality) for work relating to the AEPP contract, since such a contract would be a matter pending in EOER. The § 4(a) prohibition on your receipt of compensation includes "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." G.L. c. 268A, § 1(a) (emphasis added). In other words, as long as you are a partner and may potentially share the assets of the firm, including the fees received from the AEPP grant recipient, you will be receiving "compensation" for the purposes of § 4(a). See, Buss, The Massachusetts Conflict of Interest Law: An Analysis, 45 B.U.L. Rev. 299, 349 (1965); Braucher, Conflict of Interest in Massachusetts in Perspectives of Law, Essays for Austin Wakeman Scott, 22 (1964). To avoid a § 4(a) violation, you must segregate, from the firm assets which you would otherwise share, the fees the firm receives from the AEPP grant recipient.

Similarly, § 4(c) would prohibit you from acting as the agent for a non-state a party in connection with a matter pending in EOER. Acting as agent for your firm or a municipality would include signing such an entity's contract under the AEPP, acting as its advocate in the AEPP application process, completing its AEPP funding application, giving or preparing supporting information on its behalf to EOER, or representing it in any way before EOER. However, you may act as your firm's agent with respect to particular matters which are not before EOER (e.g., before other state agencies). Your participation in internal discussions at the firm or with a municipality (e.g., on whether or not to seek additional funding) would likewise not violate § 4(c). See, EC-COI-83-76; 81-145.

Section 6 provides:

     Except as permitted by this section, any state employee who participates as such
     employee in a particular matter in which to his knowledge he, his immediate family
     or partner, a business organization in which he is serving as officer, director, trustee,
     partner or employee, or any person or organization with whom he is negotiating or
     has any arrangement concerning prospective employment, has a financial interest,
     shall be punished by a fine of not more than three thousand dollars or by
     imprisonment for not more than two years, or both.

     Any state employee whose duties would otherwise require him to participate in such
     a particular matte shall advise the official responsible for appointment to his position
     and the state ethics commission of the nature and circumstances of the particular
     matter and make full disclosure of such financial interest, and 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 the employee, in which case it shall not be a violation for the
            employee to participate in the particular matter. Copies of such written
            determination shall be forwarded to the employee and filed with the state ethics
            commission by the person who made the determination.

This section would prohibit you from participating in any EOER matters involving the financial interest of your firm (a business organization in which you serve as a partner). Because you state that you would not be involved in any way, while at EOER, with the AEPP, you would have no occasion to participate in such a matter. If that situation changes, and a matter concerning your firm's financial interest does come before you as an EOER consultant, you would have to comply with the disclosure and exemption procedure outlined above in order to participate.

Section 23 contains general standards of conduct applicable to all state, county and municipal employees. These provisions address courses of conduct raising conflict questions as well as the appearance of conflict. Section 23(¶2) prohibits the use or attempted use of one's official position to secure unwarranted privileges or exemptions for himself or others. It also prohibits one 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, or that he is unduly affected by the kinship, rank, position or influence of any party or person. G.L. c. 268A, § 23(¶2)(3). In this regard, you should be careful not to use your state position to obtain privileges not available to others for your firm or municipal agencies your firm is associated with. Finally, you should not disclose or use to your personal advantage any confidential information you gain by reason of your state position. See G.L. c. 268A , § 23(¶2)(3).

 

End Of Decision

[1] For the 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."

[2] For the 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."

[3] For the purposes of G.L. c. 268A, "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." G.L. c. 268A, § 1(i)."

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