Opinion

Opinion EC-COI-86-22

Date: 09/15/1986
Organization: State Ethics Commission

A special state employee is subject to the restrictions of §§ 4(c), 6 and 23 of the conflict of interest law in matters involving her private business interests that may involve state agencies.

Table of Contents

Facts

You are the spouse of a state employee and also perform substantive policy-making and advocacy services for the executive branch in certain areas. Your services are uncompensated and consume more than sixty days annually. Among your responsibilities is the chairing of a working group comprised of representatives of several state agencies.

In addition to your state activities, you are the director of a privately funded business which has official dealings with some of the state agencies in your working group. You work for the business on an uncompensated basis, although you may receive a salary in the future.

Question

What limitations does G.L. c. 268A place on your activities in connection with the Commonwealth and the business?

Answer

You may continue to participate in both activities subject to the limitations set forth below.

Discussion

1. Jurisdiction

For the purposes of G.L. c. 268A, you are a "state employee".[1] While the spouse of a state employee does not ordinarily attain or otherwise share the employee's "state employee" status, the services which you provide for the executive branch make you a state employee within the meaning of G.L. c. 268A, § 1(q). Your substantive policy-making and advocacy services for the executive branch are services which would customarily be performed by state employees, EC-COI-81-117, and for which your loyalty would be to the executive department, a state agency for G.L. c. 268A purposes. In view of your uncompensated status, you are treated as a special state employee pursuant to G.L. c. 268A, § 1(o). As a special state employee, you remain subject to several prohibitions under G.L. c. 268A but also qualify for certain exemptions generally unavailable to full-time state employees. In general, the relevant provisions of G.L. c. 268A seek to preclude the overlap of your state and business activities.

2. Limitations on your state activities

(a) Section 6

This section prohibits your official participation as a state employee in any contract, decision or other "particular matter"[2] which affects the financial interest of a business organization for which you serve as a director. Because the business is treated as a business organization for the purposes of § 6, you must abstain from matters which affect the business's financial interest. For example, if the state working group were considering utilizing the business, you could not participate as chair of the working group in any discussions or decisions relating to the utilization of the business. This prohibition on your participation would also apply to contracts with business organizations which are in competition with the business.

(b) Section 23(b)(2)

As a state employee, you may not use your official position to secure unwarranted privileges of substantial value for yourself or others. Issues under this section arise in the context of your receipt of office space and the use of your status as a state employee.

Initially, nothing in § 23 would preclude your receipt of office space, telephones and support staff to carry out your responsibilities as a state employee. Because these resources are available to you as a state employee, however, you must continue to refrain from using these resources for business related activities. The incidental and occasional use of a state telephone to speak with other business employees would not constitute an unwarranted privilege of substantial value. See, Commonwealth v. Famigletti, 4 Mass. App. 363(1976); EC-COI-83-29.

Section 23(b)(2) also prohibits a state employee from lending the prestige of her office to a business organization for the purpose of advancing its services. Such conduct may create the impression of a state endorsement and imbue the private venture with a credibility which may be unwarranted. Compare, EC-COI-84-127 (judge prohibited from appearing in a television commercial endorsing a corporation's activities); 83-82 (state agency may lend employees to a commercial film project as long as steps are taken to dispel endorsement by the state). Inasmuch as the business is a private, as opposed to a state venture, you must be cautious in the advocacy role which you play as the director of the business and keep your status as a state employee separate from your business activities.

(c) Section 23(b)(3)

This section in effect prohibits a state employee from conduct which creates a reasonable impression that her official acts may be unduly affected by private loyalties and relationships. Issues under § 23(b)(3) inevitably arise whenever a state employee has an overlap of official and private dealings with the same agency or party. Because there are state agencies with which you have dealings as a working group member and business director, you must avoid creating the impression that your official dealings will be unduly affected by your business involvement with these same agencies.

3. Limitations on your business activities

Section 4(c) of G.L. c. 268A places limitations on the outside activities of state employees and is intended to preclude state employees from serving two masters in matters in which the state has a stake. As applied to you as a special state employee, you must refrain from acting as the business agent or spokesperson in connection with matters which are within your official responsibility as chair of the working group. For example, if the business were interested in submitting a proposal for consideration by the working group, § 4(c) would prohibit your dealing with the working group on behalf of the business.[3] You would also be prohibited from acting as agent for the business before a state agency in connection with a beautification proposal if the proposal were one that you had worked on, or within the past year had official responsibility for, as chairperson of the working group.

To the extent that you currently receive no compensation from the business, you are not limited by the § 4(a) prohibition covering the receipt of compensation from nonstate parties in certain state-related matters. Should your compensation situation change, you should renew your opinion request to ascertain what additional limits may apply under G.L. c. 268A.


End Of Decision

[1] "State employee," a person performing services for or holding an office, position, employment or membership in a state agency, whether by election appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis, including members of the general court and executive council. No construction contractor nor any of their personnel shall be deemed to be a state employee or special state employee under the provisions of paragraph (o) or this paragraph as a result of participation in the engineering and environmental analysis for major construction projects either as a consultant or part of a consultant group with the commonwealth. Such contractors or personnel may be awarded construction contracts by the commonwealth and may continue with outstanding construction contracts with the commonwealth during the period of such participation; provided, that no such contractor or personnel shall directly or indirectly bid on or be awarded a contract for any construction project if they have participated in the engineering or environmental analysis thereof. G.L.c. 268A, § 1(q).

[2] "Particular matter," 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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.

[3] This result would apply irrespective of the number of days you serve annually as chair of the working group.

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