Opinion  EC-COI-85-53

Date:	07/16/1985
Organization:	State Ethics Commission

A full-time state employee may serve on the board of directors of a non-profit corporation. She may not act as the agent or attorney for the corporation before any state agency nor may she participate as a state employee in matters affecting the corporation. Since her spouse, the director of a state agency, may have subsequent official dealings with the corporation, his future decisions should be based on objective standards and should not create the impression of being unduly affected by her position on the board.

Facts

You are an employee of state agency ABC and have been invited to serve as a member of the board of directors of XYZ. XYZ is a non-profit corporation which receives a portion of its funding from the Bay State Skills Corporation and local organizations funded under the Job Training and Partnership Act (JTPA). ABC does not provide funding to XYZ but does have official dealings with XYZ. You also state that XYZ may be receiving funding from a state agency in which a member of your immediate family is an employee.

Question

Does G.L. c. 268A permit you to serve on the XYZ board of directors while you remain employed by ABC?

Answer

Yes, although you will be subject to certain restrictions in both your ABC and XYZ positions.

Discussion

As an ABC employee, you are a state employee for the purposes of G.L. c. 268A. Three sections of that law are relevant to your situation.

Section 4(c)

This section limits your activities as an XYZ director. Under § 4(c), you may not act as the agent or attorney for XYZ 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 For example, you could not act as XYZ's spokes-person in connection with its funding applications to or contracts with state agencies such as the Bay State Skills Corporation, or agencies funded under JTPA The prohibition would also require that you not sign the funding applications or contracts. On the other hand, you could participate in internal XYZ board discussions concerning such matters as long as you did not take any action which might be perceived by outsiders as your acting on behalf of XYZ.

Section 6

This section prohibits you from participating^[2] in your ABC capacity in any particular matter in which XYZ has a financial interest. For example, you may not approve the referral to XYZ of an individual who receives unemployment compensation. Although you indicate that this scenario does not occur frequently, § 6 places certain disclosure requirements on you. In addition to abstaining from the referral, you must notify your appointing official and the Commission of the nature of your relationship to XYZ and XYZ's financial interest. Your appointing official may then 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 you may participate in the particular matter. Copies of such written determination shall be forwarded to you and filed with the Commission.

Section 23^[3]

This section applies to both you and your family member. As applied to you, § 23 prohibits you from using your official ABC position to secure unwarranted privileges or exemptions for XYZ, or from disclosing to XYZ confidential information which you have acquired at ABC. Your family member must abide by § 23(¶2)(3) in her official dealings with XYZ. Although there is nothing in § 23 that inherently prohibits your family member's participation, to avoid raising such issues, her decisions with regard to XYZ must be based on objective standards. Specifically, she must avoid conduct which gives the reasonable impression that her funding decisions will be unduly affected by your affiliation with XYZ.^[4]

 

End Of Decision

^[1] G.L. 268A  § 1(k) 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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties. finances and property."

^[2] G.L. 268A  § 1(j) defines "participate" 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] On July 9, 1985, the Supreme Judicial Court ruled that the commission does not possess the jurisdiction to enforce G.L. c. 268A. § 23. The discussion contained above is based on prior Commission rulings and is intended to provide guidance to you.

^[4] If this situation should arise, your family members may seek guidance from the Commission.