Opinion  EC-COI-85-33

Date:	04/23/1985
Organization:	State Ethics Commission

An administrative official at a state educational facility and a management representative on the Board of Regents' Health and Welfare Trust Fund may also serve on the Board of Directors of a health maintenance organization.

Facts

You are an administrative official at a state educational facility.  As part of your official duties, you have been appointed by the Board of Regents of Higher Education to serve as a management representative on the Health and Welfare Trust Fund (Fund) for employees covered by faculty collective bargaining agreements. You state that the Fund is under the jurisdiction of the Board of Regents. One of the responsibilities of the trust representatives is to negotiate with insurance carriers and service providers. You also serve in your private capacity as a member of the board of directors of ABC, a health maintenance organization. You receive no compensation as a Board member. It is likely that ABC will submit a proposal to the Fund to provide medical services to ABC members who are covered by the faculty collective bargaining agreements. The Fund trustees will determine what benefits will be offered and which company will receive the contracts to provide those services.

Question

What restrictions does G.L. c. 268A place on you as both a management representative on the Fund and as a member of the ABC board of directors?

Answer

You are subject to the following restrictions.

Discussion

As an official at a state educational facility, you are considered a state employee for the purposes of G.L. c. 268A. For the purposes of the question which you pose, the relevant sections of G.L. c. 268A are §§ 4 and 6.

1. Section 4

Outside of your official duties as a state employee, you are prohibited by G.L. c. 268A, § 4(c) from acting as the agent for ABC or any other non-commonwealth party 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. ABC's submission of a proposal to provide health service to the Fund is a particular matter as defined in G.L. c. 268A. Accordingly, you are prohibited by § 4 from acting on behalf of ABC in its submission of a proposal to the Fund, and from advocating for the contract on behalf of ABC. By merely participating in internal discussions or recommendations as an ABC board member, you would not ordinarily be acting as ABC's agent for § 4(c) purposes.^[2] See EC-COI-83-145, 84-28. On the other hand, by appearing before the Fund on behalf of ABC, by signing, in an ABC capacity, documents or correspondence directed to the Fund, or acting as a spokesperson for ABC in its dealings with the Fund, you would be acting as the agent of a non-state party in violation of § 4.

2. Section 6

Section 6 of G.L. c. 268A is relevant to your official activities as a Fund member. This section provides in relevant part that a state employee may not participate in any particular matter in which she or a business organization in which she is serving as officer, director, trustee, partner or employee has a financial interest. ABC is considered a business organization for the purposes of G. L. c. 268A. As a Fund trustee, particular matters affecting ABC's financial interest would ordinarily come before you. Whenever such matters arise, you must refrain from participation in the matters and notify your appointing official and the Commission in writing of the financial interest. Your appointing official shall than either:

1. assign the matter to another employee,
2. assume responsibility for the matter, or
3. make a written determination to be filed with the commission 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. Copies of that determination must be filed with the Commission.

You must continue to refrain from any further participation in matters affecting ABC unless you receive a written determination from your appointing official described above.

 

End of Decision

^[1] G.L. c. 268A defines "particular matter" 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. G.L. c. 268A, § 1(k).

^[2] However, you should be careful not to reveal any confidential information you obtained as a state employee as a Fund member. G.L. c. 268A, § 23(¶ 3).

^[3] For the purposes of G.L. c. 268A, "participate" is defined as participate in agency action or in a particular matter personally and substantially as a state employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, § 1(j).