Opinion

Opinion  EC-COI-85-80

Date: 10/29/1985
Organization: State Ethics Commission

An unpaid member of a state agency board is a "special state employee" for conflict of interest law purposes. Following disclosure, G.L. c. 268A, § 7(d) permits him to have a financial interest in an employment contract with a second state agency because, in his unpaid member capacity, he neither participates in nor has official responsibility for any of the activities of the second agency. Although the two agencies share some common subject matters, his involvement does not rise to the level of personal and substantial participation or official responsibility for activities of the second agency. He would be subject to § 23. To avoid creating the appearance of undue favoritism whenever matters involving the two agencies arise, he should abstain from involvement in any common matter.

Table of Contents

Facts

You are an unpaid member of state agency ABC. As an ABC member, you occasionally have been called upon to consider matters affecting state agency DEF although you understand that transactions between the two agencies are relatively infrequent.

You are a candidate for a full-time position with state agency DEF. You are not aware of any matters for which you would be responsible at the DEF involving issues which you would be called upon to consider as an ABC member.

Question

Does G.L. c. 268A permit you to serve as a DEF employee while you remain a member of ABC?

Answer

Yes, although you will be subject to certain restrictions in each position.

Discussion

As a member of ABC, you are a state employee for the purposes of G.L. c. 268A. EC-COI-81-153.[1] In view of your unpaid status in that position, you are also a special state employee" pursuant to G.L. c. 268A, § 1(o). As a special state employee you remain subject to most of the restrictions of G.L. c. 268A.

1. Section 7

This section generally prohibits state employees from having a financial interest in a contract made by a state agency. Included within the scope of the § 7 prohibition are employment contracts made by authorities. See, In the Matter of Henry M. Doherty, 1982 Ethics Commission, 115. Therefore, absent eligibility for an exemption, a state employee may not have a financial interest in an employment contract with DEF. Special state employees who wish to have a financial interest in a DEF contract are exempt from § 7 if, as special state employees, they neither participate[2] in, nor have official responsibility[3] for, any activities of DEF and they file with the Commission an appropriate disclosure of their financial interest. G.L. c. 268A, § 7(d).

Because you are a special state employee, your eligibility for the § 7(d) exemption depends on whether you participate in or have official responsibility as an ABC member for any of the activities of DEF. Based upon the information which you have provided, the Commission concludes that, upon your compliance with the disclosure procedure, you will be eligible for an exemption under § 7(d) because your ABC involvement with DEF activities does not rise to the level of participation or official responsibility.

The § 7(d) exemption is not available to special state employees who exercise jurisdiction over or manage the activities of the contracting agency. See, EC-COI-85-5 (contract with employee's own agency prohibited); 84-87 (contract with agency over which employee exercises broad powers prohibited). On the other hand, the mere fact that there is an interrelation between the employee and the contracting agency will not, without more, disqualify the employee from the § 7(d) exemption. Where the agencies are operationally independent, EC-COI-84-86, or where the connection between the agencies is remote, EC-COI-84-67, § 7(d) is available, even when the agencies share a common subject matter. EC-COI-84-59; 83-77. The Commission distinguishes those state agency relationships which have an indirect, incidental affect on the contracting state agency's activities from those relationships where one agency has determinative or regulatory authority over the other. EC-COI-84-68.

Your occasional involvement as an ABC member in the DEF activities which you have described would not disqualify you from the § 7(d) exemption. The definition of official responsibility requires the existence of direct administrative or operating authority to direct agency action. DEF is an independent state agency over which ABC does not exercise administrative or operating authority, jurisdiction or management. Although the two agencies share some common subject matters, your involvement in ABC votes concerning these issues does not rise to the level of personal and substantial participation in the activities of the DEF. EC-COI-84-68. Therefore, upon your compliance with the § 7(d) disclosure requirement, you will be eligible for an exemption which will permit you to accept the DEF position.

2. Section 23[4]

As a state employee in both your ABC and DEF positions, you are also subject to the standards of conduct contained in G.L. c. 268A, § 23.[5] Although nothing in § 23 inherently prohibits your serving both as an ABC member and as a DEF employee, you must take steps to avoid violating these standards whenever matters involving ABC and the DEF overlap. Compliance with these standards requires that you not only refrain from "playing both sides of the same fence" EC-COI-84-93, but that you avoid conduct which creates the reasonable impression that your ABC or DEF decisions are unduly influenced by your dual positions. The Commission recently addressed in EC-COI-84-40 a similar situation involving one of its members who had been appointed to City Corporation Counsel of Boston. In that opinion, the member was advised to insulate himself as both a Commission member and City Corporation Counsel from participating in any matters which the agencies had in common. A similar abstention would also be appropriate in your case. You should therefore review the agenda prior to each ABC meeting and refrain from participating in any matter in which DEF is also involved. You should also follow a similar abstention procedure if your official DEF duties involve your dealing with ABC employees or officials.

 

End Of Decision

[1] This citation refers to prior Commission conflict of interest opinions including the year they were issued and their identifying numbers. Copies of advisory opinions (with identifying information deleted) are available for public inspection at the Commission offices.

[2] "Participate" 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. § 1(j) 268A

[3] "Official responsibility." the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L. c. 268A  § 1(i).

[4] 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.

[5] G.L. c. 268A. § 23 provides as follows:

No current officer or employee of a state, county or municipal agency shall:

  1. accept other employment which will impair his independence of judgment in the exercise of his official duties;
  2. use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others;
  3. by his conduct give 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.

No current or former officer or employee of a state, county or municipal agency shall:

  1. accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority;
  2. improperly disclose materials or data within the exemptions to the definition of public records as defined by section seven of chapter four, and were acquired by him in the course of his official duties nor use such information to further his personal interests.

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