| Date: | 09/11/1985 |
|---|---|
| Organization: | State Ethics Commission |
The conflict of interest law does not prohibit the spouse of a state employee from contracting with the state agency that employs his wife because she has no financial interest in the company and does not participate in the management or control of the company. The state employee is subject to §§ 4, 6, 7 and 23 of the conflict of interest law.
You are employed on a full-time basis as a secretary by state agency ABC. Your responsibilities are secretarial and do not include making purchasing decisions, nor is your department involved in making purchasing decisions. Your spouse is the sole proprietor of DEF, a recently formed printing company.
Your spouse makes all decisions regarding the company and you have no role in the company's management. Further, you state that you have no financial interest in the company.
Does G.L. c. 268A permit DEF to contract with ABC for printing services?
Yes, although you will be subject to certain limitations discussed below.
As a secretary with ABC, you are considered a "state employee" for the purposes of G.L. c. 268A, the conflict of interest law. See, EC-COI-82-60.[1] At the outset, nothing in G.L. c. 268A will inherently prohibit DEF from contracting with ABC due to your employee status with ABC. Section 7 generally prohibits you from having a financial interest in a contract made by a state agency. While it is true that your spouse would have a financial interest in a contract made by a state agency if DEF were to contract with ABC for printing services, his financial interest will not be imputed to you for the purposes of § 7. This result will continue to apply as long as you do not have a financial interest in DEF and do not participate in the management or control of the company. Compare, EC-COI-83-111; 83-37.
Although DEF may contract with ABC and other state agencies without placing you in violating of G.L. c. 268A, § 7, you are subject to certain restrictions in both your public and private capacity.
Two provisions of G.L. c. 268A are relevant to you. The first, G.L. c. 268A, § 6, prohibits your official participation[2] in any contract or other "particular matter"[3] in which your spouse has a financial interest. Because such matters do not currently come before you, it is unlikely that your official abstention will be necessary. However, you should keep the limitations of § 6 in mind if your ABC job responsibilities change and you are in a position to participate in matters affecting your spouse's financial interest. The second provision, § 23 (¶ 2(2)),[4] prohibits you from using your official position to secure unwarranted privileges for DEF. For example you may not use ABC resources such as copy machines, telephones, or automobiles for your spouse's business. You must also refrain from discussing the merits of DEF's application with or otherwise attempting to influence the individuals within ABC who will be deciding which vendor should be awarded a printing contract.
Section 4 prohibits you from receiving compensation from DEF or acting as DEF's agent in relation to any contract or other particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. For example, you may not act as DEF's representative in seeking printing contracts with state agencies. As the Commission recently stated In the Matter of James Collins, 1985 Ethics Commission 228 (April 2, 1985) "merely speaking or writing on behalf of a non-state party would be acting as 'agent'. . .Absent some clearly applicable exemption, state employees would be well-advised to avoid doing any 'favors' which involve intervening in any sort of state matter." You should also be aware that if DEF offers you an opportunity to perform clerical services for compensation, you may not be paid in relation to any printing contracts made with state agencies.
End Of Decision
