Opinion

Opinion  EC-COI-85-67

Date: 08/13/1985
Organization: State Ethics Commission

A member of a state board who is also a trustee of a local board which receives state board funds may not act as agent for his local board in connection with funding applications to the state board. He is further prohibited from taking actions as a state board member in connection with any matters in which his local board has a financial interest.

Table of Contents

Facts

You are the chairperson of a state Board (Board). The Board has nine members, all of whom are appointed by the governor. Board members do not receive compensation for their services but they are reimbursed for their expenses. The Board is responsible for administering state and federal monies which are allocated for library services. The funds are used for direct aid. Local entities compete among each other for many of these funds.

Three of the Board members have affiliations with entities or institutions that receive funding from the Board. One of these members is president of the board of trustees of a municipal entity and another is a member of the board of trustees of a municipal entity. The third member is an officer in a state agency.

Question

What limitations does G.L. c. 268A place on Board members who are trustees or employees of institutions that receive funding from the Board?

Answer

Those members are subject to the following limitations.

Discussion

The Board is a state agency as that term is defined in G.L. c. 268A, and its members are state employees. Because the members serve on a part-time, uncompensated basis they are considered special state employees. While Board members are subject to the provisions of the conflict of interest law, certain sections of that law apply less restrictively to special state employees.

The sections of the law applicable to the question you have asked are §§ 4, 6, 7 and 23. Section 4 prohibits a state employee from receiving compensation from or acting as agent or attorney for anyone other than the commonwealth or a state agency in connection with any particular matter[1] in which the commonwealth or a state agency is a party or has a direct and substantial interest Grant applications and budget allocation decisions are examples of particular matters. Thus a Board members who is a trustee for a local library may not act as agent for his institution before the Board in connection with such matters. Acting as agent includes not only personal appearances on someone else's behalf but also such activities as making telephone calls and signing correspondence on behalf of a person or institution. See e.g. EC-COI-84-28.[2]

Section 6 in relevant part prohibits a state employee from participating as such an employee in a particular matter in which he or a business organization in which he is serving as trustee has a financial interest. Should the employee's duties otherwise require him to participate[3] in the particular matter he must advise his appointing official and the State Ethics Commission of the nature and circumstances of the particular matter and make full disclosure of the financial interest. The appointing official shall 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 the employee, in which case it shall not be a violation for the employee to participate in the particular matter.

Section 6 would prohibit the Board member who is a local library trustee from participating in matters in which his library has a financial interest unless his appointing official permits it. For example, a public library trustee could not participate in any vote or discussion leading up to a vote on any decision to award a grant to the library. This prohibition on participation would extend to matters involving libraries which are in direct competition with the public library for funds. See e.g. EC-COI-84- 1; 82-95. It should be noted that when one is required to refrain from participating in a matter the proper course is for that person to leave the room altogether. Graham v. McGrail, 370 Mass. 133, 138 (1976).

Section 7 of the statute prohibits a state employee from having a financial interest, directly or indirectly, in a contract[4] made by state agency in which the commonwealth or a state agency is an interested party. This section does not place any restrictions on the members who are local library trustees because it is their institutions and not themselves who have a financial interest in any award of state money. Section 7 would, however, be applicable to the Board member who is also a state employee. Generally a person is prohibited by § 7 from holding more than one state position. There are exemptions to this prohibition, one of which appears to be applicable to the Board member. The prohibition does not apply to a special state employee who does not participate in or have official responsibility for any of the activities of the contracting agency. As long as the Board member does not participate as a Board member in any of the activities of his state agency, there is no problem under § 7. Thus when matters come before the Board involving the state agency, the Board member must refrain from participating. He must also file a statement with the State Ethics Commission making full disclosure of his interest in his employment contract with his agency.

Finally, § 23 contains certain standards of conduct which are applicable to all state, county and municipal employees.[5] It provides in part that no public employee shall use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others. It also prohibits an employee from, by his con-duct, giving 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. Under these provisions Board members with institutional affiliations should take care to avoid using their Board membership to secure for their institutions unwarranted privileges such as extensions of application deadlines or relaxed monitoring of contract performance.[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..." G.L. c. 268A, § 1(k).

[2] This citation refers to a previous advisory opinion issued by the Commission. Copies of this and all other opinions are available for public inspection, with identifying information deleted, at the Commission offices.

[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, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise." G.L. c. 268A, § 1(j).

[4] The term "contract" is interpreted broadly to include such things as grants awarded by the state to individuals or institutions EC-COI-81-64.

[5] On July 9, 1983, the Supreme Judicial Court ruled that the Commission 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.

[6] The advice contained in this advisory opinion is prospective only and cannot address the propriety of conduct that has already occurred.

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