Opinion

Opinion EC-COI-86-24

Date: 10/06/1986
Organization: State Ethics Commission

A member of the General Court may represent his family farm in connection with applying for an agricultural restriction from the Department of Food and Agriculture subject to the restrictions of §§ 4, 6, 7 and 23(b)(2) of the conflict of interest law.

Table of Contents

Facts

You are a member of the General Court. Outside of your legislative duties, you assist your family in managing a family' farm. The farm, which was owned by your father, was placed in Trust upon his death. Under the terms of the Trust, you, your brother and sister are trustees and have certain rights to profits, if any, from the farm. The beneficiaries of the Trust are the grandchildren and the assets of the Trust will be distributed to the grandchildren following the deaths of the three trustees. You do not receive compensation for your trustee services.

Your family is interested in selling its development rights in the farm to the Department of Food and Agriculture (DFA) pursuant to the Agricultural Preservation Restriction Program. See, G.L. c. 132A, § 11. Under the Program, farm owners who are interested in selling their development rights to the commonwealth make application to the APR. If the APR board members deem the farmland appropriate for purchase of its development rights, an independent appraisal of the value of those rights is made. If the farm owner finds the figure derived from the appraisal acceptable, the commonwealth, acting through the APR, purchases the development rights in exchange for an agreement from the farm owner that the only permissible use of the land will be agricultural. This restriction on land use is permanent and runs with the land; it can be removed only by a two-thirds vote of the General Court.

Your family has asked you to approach DFA to ascertain DFA's interest in purchasing the development rights to the farm. Your activities on behalf of the farm would be uncompensated.

Questions

  1. Does G.L. c. 268A permit you to act as your family's agent in its dealings with DFA?
  2. If DFA agrees to purchase your family's development rights to the farm, will you be placed in violation of G,L. c. 268A, § 7?
  3. What limitation does G.L. c. 268A place on your official activities as a member of the General Court with respect to the DFA?

Answers

  1. Yes.
  2. No.
  3. You will be subject to certain limitations described below.

Discussion

As a member of the General Court, you are a state employee for purposes of G.L. c. 268A and are subject to certain restrictions in both your official and private capacities.

1. Private Dealings with DFA

Section 4 of G.L. c. 268A places limitations on the outside activities of state employees whenever the state has a stake in those matters. Specifically, under § 4, a state employee may not receive compensation from, or act as agent for a non-state party in relation to any application, contract or other particular matter in which a state agency is a party or has a direct and substantial interest.

As applied to members of the General Court, § 4 is less restrictive and applies only to certain paid appearances before state agencies. See, EC-COI-86-15; 86-12. Inasmuch as your appearance on behalf of your family will be on an unpaid basis, § 4 will not restrict your private dealings with DFA.

2. Financial Interest in a State Contract

Under § 7, a state employee, including a member of the General Court, is subject to substantial limitations on acquiring a financial interest in a contract made by a state agency. For example, in EC-COI-84-51, the Commission concluded that DFA's purchase of development rights under the APR Program constitutes a contract for § 7 purposes and that a DFA employee who would be the direct recipient of the contract funds would have a financial interest in a DFA contract in violation of § 7. By similar reasoning, if you have a financial interest, direct or indirect, in the DFA development rights contract with the Trust, you will also violate § 7.

Based upon the information you have provided, including the trust documents, it appears that you will not have a financial interest in any contract development rights made by the Trust; the contract funds will be treated as the assets of the beneficiaries (grandchildren) to be distributed to them following the deaths of the trustees. Therefore, as long as you do not have a financial interest in the assets of the Trust, including the DFA contract, you will not violate § 7. Because you may be eligible for certain rights to profits, if any, from the operation of the farm, the profits which you receive may not be calculated on a base which includes the DFA contract. Stated in another way, to avoid violating § 7, you must forego any profits which are attributable to the DFA contract.

3. Limitations on Your Official Activities

In view of the likelihood that you will have private dealings with DFA, G.L. c. 268A establishes guidelines and limitations on your official dealings with DFA. In particular, § 6 requires your abstention from any "particular matter"[1] in which you or your immediate family, or the Trust has a financial interest. Issues under § 6 will arise if DFA grants an APR contract to the Trust and you are called upon to vote as a legislator on the line item in the annual appropriation bill which funds the APR contract. In such a case, the line item would be treated as a particular matter, see EC-COI-82-9, and you would be required to abstain from participation in the matter.

Under § 23(b)(2), a state employee may not use his official position to secure unwarranted privileges or exemptions of substantial value which are not properly available to similarly situated individuals. For example, a member of the General Court was found to have violated this provision by pressuring a state agency to award a contract to his family's company, Craven v. State Ethics Commission, 390 Mass. 191 (1983). While the principles of § 23(b)(2) are largely self-explanatory, you should keep these principles in mind whenever you have dealings with DFA.[2]


End Of Decision

[1] "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.

[2] Absent a formal request, we cannot provide an advisory opinion as to the conduct of DFA officials who would be reviewing your APR request. In general, DFA officials should be aware that the § 23(b)(2) restrictions apply to them and that they may not grant to the Trust an unwarranted privilege of substantial value. We are available to provide more detailed guidance to them if they so desire.

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