Opinion  EC-COI-85-71

Date:	09/11/1985
Organization:	State Ethics Commission

The head of a state agency may hire an employee who is married to a unit manager within the same state agency as long as he complies with his customary agency hiring procedures and does not otherwise grant undue preferential treatment. Once the employee is hired, the unit manager will be subject to several restrictions in his official dealings with his wife. He may not participate as unit manager in any matters affecting his wife's financial interest, including salary and promotional determinations and other terms and conditions of employment because he will make job assignments to his wife and participate in strategic decisions regarding her handling of cases, there is a risk that he may create the impression of undue favoritism to her because of their marital relationship. To dispel any impression of favoritism, his deputy should oversee his exercise of these responsibilities to insure that the assignments and decisions are based on objective criteria.

Facts

You are an appointing official for state agency ABC. Employee DEF manages a unit within ABC. You recently initiated an application and interview process to fill an employee vacancy within the unit managed by DEF. Among the candidates whom you are considering is the wife of DEF. You have concluded that she is the most qualified candidate and are interested in hiring her. DEF has played no role in helping you reach this decision.

If you were to hire her, she would be assigned to the unit headed by her husband. The unit also employs a deputy chief to whom she would directly report. The deputy chief would be solely responsible for performing her biannual performance review and making any recommendations regarding her salary or job status. The ultimate decision for salary reviews, hiring, firing or discipline would rest with you. Her job assignments would be made by her husband who would also periodically be involved in decisions regarding the handling of her cases.

Questions

1. Would you violate G.L. c. 268A by hiring the wife of DEF?

2. Assuming that you may hire her, what limitations will G.L. c. 268A place on DEF's official dealings with his wife?

Answers

1. No.

2. He will be subject to the limitations of § 6 and 23, as discussed below.

Discussion

1. Application of the law to you

You are a "state employee" for the purposes of the conflict of interest law, G.L. c. 268A. Section 23(¶ 2)(2) of G.L. c. 268A prohibits a state employee from using his official position to secure an unwarranted privilege for anyone. For example, a state employee could be subject to scrutiny under this section if he granted undue preferential treatment to an individual by disregarding normal agency hiring procedures. See, In the Matter of James Craven, 1980 Ethics Commission 17, aff'd 390 Mass. 191 (1983). To be sure, appointing officials are granted substantial flexibility in making personnel decisions, and the Commission will not customarily apply § 23 to "second-guess" justifiable personnel decisions. Given your selection criteria, including white collar crime investigative experience and favorable job references, you would not be granting an unwarranted privilege to Mr. and/or Ms. DEF if you hired her.

2. Application of the law to DEF

DEF is also a "state employee" for G.L. c. 268A purposes. Two sections of the law are relevant to his situation. The first, G.L c. 268A, § 6. prohibits his official participation^[1] in any "particular matter"^[2] in which his wife has a financial interest. Should such a matter come before him, absent receipt of an exemption under § 6(b)(3),^[3] he must abstain from participation in the matter and disclose to you and the Commission the financial interest which his wife has in the matter. Examples of matters requiring his abstention include recommending her appointment or promotion, determining her salary and other terms and conditions of employment, and evaluating her job performance. See, EC-COI-83-174.^[4] As long as he is insulated from participation in those matters, he will be in compliance with § 6.

The second section of G.L. c. 268A relevant to his situation is § 23(¶ 2)(2, 3). As a state employee, he is prohibited from using his position as unit head to secure unwarranted privileges for his wife and from engaging in conduct which creates a reasonable impression that his wife is unduly enjoying his favor in the performance of his official duties. Whenever an employee is in a position to review the merits of a family member's work, issues under § 23 inevitably arise, and it is the responsibility of the appointing official to establish safeguards to dispel any impression of favoritism. See EC-COI-85-34. To the extent that DEF will not be reviewing the merits of his wife's work or otherwise evaluating her work and that those responsibilities will be delegated to the deputy chief to whom she would directly report, you have initiated appropriate safeguards. There is a risk, however, that official making job assignments to his wife and his participating in strategic decisions regarding the handling of her cases may pose problems under § 23. At a minimum, you or your deputy should oversee his exercise of these responsibilities to insure that these assignments and decisions are made based on objective criteria, as opposed to his marital relationship.^[5] To avoid the impression of favoritism altogether, the safest avenue, of course, would be to remove DEF from any official responsibilities over his wife's work.^[6]

 

End Of Decision

^[1] For the purposes of G.L. c. 268A, "participation" ii defined as "participate in agency actions 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).

^[2] For the purposes of G.L. 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).

^[3] Following disclosure, an employee may participate in the matter only if his appointing official makes a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the employee's services.

^[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] The problems associated with the impression of favoritism are not limited to case assignments and can arise in many other contexts. For example the complexity of her cases, her office location, her secretarial assignments, her attendance eligibility for skills workshops and other desirable staff benefits may not be unduly influenced by the fact that she is married to DEF.

^[6] On July 9, 1983, 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.