Opinion  EC-COI-85-26

Date:	04/02/1985
Organization:	State Ethics Commission

A General Court member whose legislative employee plans to marry his daughter, is subject to the §23 standards of conduct in his official dealings with his employee. For example, he must grant salary increases, and vacation leave which are consistent with objective personnel criteria applicable to other employees. He is not subject to the mandatory disqualification of § 6 because his son-in-law would not be an immediate family member.

 

Facts

You are a member of the General Court. For approximately one year, you have employed ABC. He has recently become engaged to your daughter, and they plan to marry.

Questions

What limitations does G.L. c. 268A place on your official activities with respect to your employee in view of his relationship with your daughter?

Answers

You are subject to certain guidelines discussed below.

Discussion

As a member of the General Court, you are a state employee for the purposes of G.L. c. 268A. Two sections of that law are relevant to your situation.

The first, G.L. c. 268A, § 6, prohibits your participation^[1] in any particular matter^[2] in which, in relevant part, a member of your immediate family has a financial interest. For example, you could not participate in recommending the appointment of an immediate family member as your employee, in determining the employee's salary or terms and conditions of employment, or in evaluating the employee’s job performance. EC-COI-83-174.^[3] See, generally, Sciuto v. City of Lawrence, 389 Mass. 939 (1983). However, § 6 does not extend to all family relationships but only to those which fall within the definition of immediate family, namely the "employee and his spouse, and their parents, children, brothers and sisters." G.L. c. 268A, § 1(e). While your daughter would be a member of your immediate family for § 1(e) purposes, your son-in-law would not be.^[4] Therefore, the mandatory disqualification requirements of § 6 do not apply to your official dealings with your legislative employee.^[5]

Under G.L. c. 268A, § 23(¶2), you may neither use your official position to secure an unwarranted privilege for someone, nor, by your conduct, give reasonable basis for the impression that your official acts are unduly affected by the kinship of any person. While nothing in G.L. c. 268A inherently prohibits you from participating in personnel or other decisions affecting your son-in-law's financial interests, questions may inevitably be raised under § 23 because of your relationship with your aide. To avoid creating the impression of undue favoritism, you should guide your official dealings with your son-in-law according to the same standards applicable to other aides. For example, the awarding of salary increases or vacation leave should be consistent with objective personnel criteria applicable to other employees. Additionally, as a safeguard, you may wish to review with the head of your branch of the General Court the basis of any decision for your reappointment of your son-in-law.

 

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] These citations refer to previous advisory opinions issued by the Commission. Copies of these and all other advisory opinions may be obtained at the Commission's offices.

^[4] The definition is, by  nature, arbitrary. "An employee may have a close cousin or grandparent (or friend or enemy) and be influenced by his or her interest in a particular matter; but the statute must draw a line somewhere, and the interests of such persons, who are less likely to have an identity of interests with the employee, are not attributed to him." Buss, The Massachusetts Conflict of Interest Law: An Analysis, 45 B.U.L. Rev.  299, 356 (1965).

^[5] For the purposes of G.L. c. 268A, your daughter would not be deemed to have a financial interest in her husband's employment contract by virtue of their marriage relationship. See, EC-COI-83-123.