Opinion

Opinion  EC-COI-85-9

Date: 01/31/1985
Organization: State Ethics Commission

A member of the General Court may also consult to a private company which does a small amount of business with state agencies. Because he will neither work on state contracts nor have his compensation attributable to those contracts, and has no propriety interest in the company, he will not have a financial interest in the company's contracts with the state.

Table of Contents

Facts

You are a member the Massachusetts General Court. In the past, you have been employed by ABC, a private business. ABC has sold goods and materials to various state agencies for at least ten years. These sales are based on a uniform pricing policy of ABC applicable to all its customers, and generally are not made through competitive bidding. The total volume of sales to these state agencies represents less than 3/8 of 1 percent of ABC's annual sales. Your father has a greater than 10 percent proprietary interest in ABC, but you do not now have, nor have you ever had, any propriety interest in ABC.

You would like to maintain a relationship with ABC as a paid consultant. You will not have any contact with or control over contracts between state agencies and ABC, either as a member of the General Court or as a consultant.

Question

May you serve as a paid consultant to ABC while that firm contracts with state agencies?

Answer

Yes, subject to the limitations set forth below.

Discussion

As a member of the General Court, you are a state 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. The sections of the law applicable to the question you have asked are §§ 4, 7 and 23.

1. Section 4

Section 4 provides in relevant part that no state employee may act 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. Members of the General Court are exempt from this provision; however, no member may personally appear for any compensation other than his legislative salary before any stat agency unless:

  1. the particular matter before the state agency is ministerial in nature; or
  2. the appearance is before a court of the Commonwealth; or
  3. the appearance is in a quasi-judicial proceeding.

For the purposes of this paragraph, ministerial functions include, but are not limited to, the filing or amendment of tax returns, applications for permits or licenses, incorporation papers, or other documents. For the purposes of this paragraph, a proceeding shall be considered quasi-judicial if:

  1. the action of the state agency is adjudicatory in nature; and
  2. the action of the state agency is appealable to the courts; and
  3. both sides are entitled to representation by counsel and such counsel is neither the attorney general nor the counsel for the state agency conducting the proceeding.

Thus, this section prohibits you from appearing for compensation before state agencies in connection with the formation or performance of ABC contracts with state agencies, since those contracts would be particular matters. As long as you comply with your stated intention to avoid any contact with contracts between state agencies and ABC, you will not violate § 4.

2. Section 7

Section 7 provides in relevant part that a state employee may not have a financial interest, directly or indirectly, in a contract made by a state agency in which the Commonwealth or a state agency is an interested party. While there are statutory exemptions to § 7, it is unnecessary to address them in your case. As long as you are not working for ABC on state contracts and your compensation is not attributable to those contracts, you will not be considered to have a financial interest in them. In addition, you do not have any proprietary interest in ABC. Therefore, you will not be considered to have a financial interest prohibited by § 7 in the contracts between ABC and the state agencies with which it does business if you are employed as a consultant by that firm.

3. Section 23

As a state employee, you are also subject to the provisions of G.L. c. 268A, § 23 which, in relevant part, prohibit you from using your official position to secure unwarranted privileges for yourself or others, and by your conduct giving reasonable basis for the impression that any person can unduly enjoy your favor in the performance of your official duties. The Commission has previously found a member of the General Court in violation of § 23 when he used his position in the legislature to influence the award of a state agency contract to a community development corporation in which members of his immediate family were financially interested. In the Matter of James J. Craven, Jr., 1980 Ethics Commission 17. You should remain aware of these provisions of § 23 whenever you have official dealings as a legislator with state agencies which contract with ABC.

 

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..."G.L. c. 268A, § 1(k).

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