Opinion  EC-COI-85-34

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

A full-time manager in a regional office of a state agency is prohibited from reviewing or recommending service contract proposals prepared by her husband for a vendor of that state agency and must also exercise caution in reviewing proposals submitted by competing vendors.

Facts

You are a manger in a regional office of state agency ABC. One of your responsibilities is the review of service contract proposals submitted by vendors.  Following your review of each proposal, you make oral presentations and recommendations to the Area citizen review board which, in turn, makes its funding recommendations to the Area director. Following the Area director's final decision, you negotiate with the successful vendors over the allocation of ABC funds for the specific purposes covered in the contract.

Your husband is a financial consultant to public and private sector agencies and consults on a part-time basis to the (Center), a private entity which currently receives ABC funding, and which is in the process of preparing new service contract proposals to ABC. The Center also receives funding from other state and private sources, and you estimate that approximately 35 to 40% of its funding is derived from ABC contracts. The amount of time in which your husband consults. to the Center varies, depending on the Center's needs. You estimate that he works on the average of two hours weekly outside of the grant proposal period and ten hours weekly during that period. He will be assisting the Center in its upcoming contract proposal to ABC.

Question

What limitations does G.L. c. 268A place on your official ABC activities in view of your husband's consultant status to a ABC vendor?

Answer

You will be subject to the limitations discussed below.

Discussion

In your capacity as an ABC business manager, you are a state employee for the purposes of G.L. c. 268A, the conflict-of-interest law. While nothing in G.L. c. 268A inherently prohibits your husband from consulting to an ABC vendor while you serve as an ABC area business manager, you will be subject to certain limitations on your official actions.

Section 23(¶ 2) (3) prohibits you, as a state employee, from engaging in any conduct which gives reasonable basis for the impression that any person can improperly influence or unduly enjoy your favor in the performance of your official ABC duties, or that you are unduly affected by the kinship or influence of any person. These standards are designed to avoid situations in which the integrity and credibility of your duties as an ABC employee may be called into question. Compliance with these standards requires safeguards to ensure that your decisions and recommendations as an ABC employee will not be clouded by personal or private loyalties. See EC-COI-83-128.^[1]

In EC-COI-84-47, a state official was about to leave state government to work for a private company which prepared financial reports which he in turn reviewed as a state official. The Commission advised him that, to avoid creating an impression prohibited by §23(¶ 2) (3), he would have to disqualify himself from his agency's proceedings which were based on a review of financial reports prepared by the company. Similarly in EC-COI-84-53, the Commission advised a court employee that §23(¶ 2) (3) prohibited her from participation in any case in which her husband had filed an appearance.

Consistent with these precedents, the Commission advises you that, in view of your marital relationship, you must disqualify yourself from reviewing, evaluating or recommending a Center service contract proposal which your husband has assisted in preparing. Otherwise, you would be reviewing the merits of your husband's work. You should also keep the principles of §23(¶ 2) (3) in mind when reviewing the merits of other organizations which are competing with the Center for ABC contracts. As a safeguard, you should notify your appointing official of your husband's consultant relationship with the Center. While §23(¶ 2) (3) does not prohibit your official participation in the review of proposals filed by competing organizations, you should discuss with your appointing official further safeguards, if any, which should be established to avoid creating the impression of Center favoritism which §23 was intended to prohibit.^[2]

^[1] This 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.

^[2] Because your husband would not, strictly speaking, have financial interest in the outcome of the Center contract proposal, the restrictions of G.L. c. 268A, § 6, will not apply to you. The conclusion is based upon the current facts as you have described them and might change if either the Center's contracts with ABC substantially increased, or your husband's hourly consultant commitment to the Center substantially increased. You should renew your opinion request with the Commission if either of these changes occurs.