Opinion  EC-COI-85-60

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

A county commissioner may also accept a marketing position with a management consulting firm. He is prohibited from soliciting county business on behalf of the firm, from acting as county commissioner in any matter in which the firm has a financial interest and from being paid by the firm with funds derived from any county contracts it may have.

Facts

You presently serve as an ABC County Commissioner. You are considering accepting a senior position in sales and marketing with a professional group benefits management and consulting firm (Firm). The Firm offers cost containment services in the specific areas of Group Life and Accident and Health Coverages, its services interfacing between the employer and the insurance carrier. Currently, the Firm represents several Massachusetts municipalities including a few located within ABC County. You also state that a principal in the Firm, but not the Firm, has a contractual, relationship with ABC County for other unrelated services concerning workers compensation.

Question

What limitations does G.L. c. 268A place on your proposed sales and marketing activities for the Firm while you serve as a County Commissioner?

Answer

You will be subject to the limitations set forth below.

Discussion

As a County Commissioner, you are a county employee as defined in the state conflict of interest law, G.L. c. 268A, § 1 et seq., and as a result are subject to the provisions of that law.

Section 11 of the conflict law prohibits a county employee from being compensated by, or acting as agent or attorney for, anyone other than the county by which he is employed in connection with any particular matter^[1] in which that county is a party or has a direct and substantial interest. For example, § 11 would prohibit you from soliciting County business for the Firm. On the other hand, this section would not limit your activities on behalf of the Firm dealing with municipalities because the County would not have a direct and substantial interest in the contracts between the Firm and such municipalities regarding cost containment services.

Section 13 prohibits a county employee from participating^[2] as such an employee in a particular matter in which to his knowledge he, a partner, or a business organization in which he is serving as officer, director, trustee, partner or employee has a financial interest. Accordingly, you would have to abstain from any discussion or vote concerning a proposal submitted by the Firm to the County Commissioners. If you became a partner in the Firm, § 13 would also prohibit your participation as a County Commissioner in matters in which your fellow partners had a financial interest, including the workers compensation contract one Firm principal currently has with the County. Section 13 further provides that any county employee whose duties would otherwise require him to participate in a prohibited matter must disclose to the Commission the nature and circumstances of the matter and the financial interest involved. Although certain exemptions are provided when county employees have appointing officials, you, as an elected official, cannot obtain such an exemption.

Section 14 of G.L. c. 268A prohibits a county employee from having a financial interest in a contract made by an agency of the county which employs him. For example, you would violate this section if any of your salary from the Firm derived from the Firm's contracts with the County. Because this section's prohibition only applies to contracts made by agencies of the County, it would not apply to Firm contracts with municipalities, even if you were considered to have a financial interest in such contracts. However, if the principal in the Firm who has contracted individually with the County shares his profits with the Firm, you would be deemed to have an indirect financial interest in a County contract in violation of § 14. You should therefore take steps to ensure that you do not share in such profits.

Finally, § 23 of the conflict law contains certain standards of conduct which apply to all state, county and municipal employees. That section provides that no county employee shall:

1. accept other employment which will impair his independence of judgment in the exercise of his official duties [G.L. c. 268A, § 23(¶ 2)(1)];
2. use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others [G.L. c. 268A, § 23(¶ 2)(2)]; 
3. by his conduct give a 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)];
4. accept employment or engage in business activity which will require him to disclose confidential information he has gained in his official position, nor use such information or materials^[3] to further his personal interests [G.L. c. 268A, § 23(¶ 3).

To avoid violating § 23, you should not exploit or otherwise utilize your position as County Commissioner to assist your efforts on behalf of the Firm. If you deal privately with municipalities within ABC County, the tenor and result of your private dealings may affect your recommendations and advice concerning County matters which uniquely impact those specific municipalities, in violation of § 23(¶ 2)(1). See, e.g. EC-COI-82-124.^[4] Likewise, the overlap of public and private dealings with such municipalities may give the impression that you may be influenced in the performance of your official duties by virtue of your private business dealings, in violation of § 23(¶ 2)(3). See, e.g. In the Matter of John J. Rosario, 1984 Ethics Commission 205. To avoid such violations, you should refrain from participating as County Commissioner in any determination which would affect a municipality you are dealing with privately.^[5] By virtue of § 23(¶ 2)(2), prohibiting your using your official position to gain unwarranted privileges for yourself or others, you also should not use County office supplies, space, or personnel for non-County purposes.^[6]

 

End Of Decision

^[1] For the purposes of G.L c. 268A, "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 properly. G.L. c. 268A, § 1(k).

^[2] Participation is defined in § 1(j) as "personal and substantial participation "through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise."

^[3] These materials are defined as "materials or date within the exemption to the definition of public records as defined by G.L. c. 4, § 7."

^[4] This citation refers to a prior Commission conflict of interest opinion including the year it was issued and its identifying number. Copies of advisory opinions (with identifying information deleted) are available for public inspection at the Commission offices.

^[5] You may, however, participate in County decisions involving determinations of general policy which would affect the majority of municipalities within ABC in a similar fashion.

^[6] 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 and your appointing official.