Opinion  EC-COI-87-22

Date:	06/30/1987
Organization:	State Ethics Commission

Section 3 prohibits a state agency head from receiving for himself a gift of substantial value relating to duties which the official has performed.

Facts

You are the head of state agency ABC. In that capacity, you
oversee the supervision of employees in your agency.

Your sister is an attorney and is considering forming an
association with three lawyers. The association would include a
common letterhead and a sharing of office expenses, but would not
include a sharing of fees received from clients. Your sister's
practice is exclusively probate and does not include matters before
your agency. Two of your sister's prospective associates occasion-
ally represent clients in matters before your agency. By

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virtue of your sister's proposed association arrangement, she will
not share any fees received by her associates in connection with
their representation of clients in ABC proceedings.

Question

What limitations does G.L. c. 268A place on your activities as
ABC agency head in light of your sister's proposed association?

Answer

You are subject to the limitations set forth below.

Discussion

As ABC agency head, you are a state employee for the purposes
of G.L. c. 268A. Two sections of G.L. c. 268A are relevant to your
question.

1. Section 6

This section requires your abstention from participation as an
ABC employee in any particular matter[1] in which your sister has
a financial interest. Based on the information which you have
provided, we do not believe that the s.6 abstention requirements
apply to your oversight of the supervision of ABC employees in
matters in which your sister's associates represent a client. Even
assuming that your sister's associates could be regarded as having
a financial interest in the cases for which they serve as counsel,
their financial interest would not be imputed to your sister
because she is not eligible to share any fees received by her
associates in connection with their defense of cases before your
agency.[2]

2. Section 23(b)

In addition to s.6, you are also subject to certain standards
of conduct contained in s.23. Specifically, you may not use your
official position to secure unwarranted privileges or exemptions
of substantial value to your sister's firm s.23(b)(2). Issues would
arise under s.23(b)(2), for example, if you concurred in the
assignment of an inexperienced employee to handle a complex matter
involving your sister's firm. You must therefore keep the
principles of s.23(b)(2) in mind in carrying out your official
duties.[3]

Section 23(b)(3) also applies to your situation. That subsection
prohibits a public official from acting in a manner which will lead
a reasonable person to conclude that any person can unduly enjoy
his favor. To dispel any such appearance, the official must
"disclose in a manner which is public in nature, the facts
which would otherwise lead to such a conclusion." s.23(b)(3). Were you
to participate in cases involving your sister's associates, a
reasonable person might well conclude that they (and their clients)
would unduly enjoy your favor. Therefore, a public disclosure is
appropriate. Although the statute does not specify the precise
manner of providing public notice, the notice must provide the
public with access to relevant information concerning your sister's
association with a firm which is defending a case involving your
agency. You can satisfy this requirement by:

(a) filing a written disclosure to the Commission which will
keep your disclosure on file as a public record, G.L. c. 268A,
s.24; and

(b) filing a similar disclosure with the Court which reviews
decisions of your agency.

Alternatively, you may abstain from continuing your oversight role
in the supervision of cases in which your sister's law firm
represents a defendant. Aside from steps taken to dispel any
impression of undue favoritism, you must, of course, avoid actual
undue favoritism towards your sister's firm.

[1] "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 and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s.1(k).

[2] While her associates' financial ability to maintain their share
of the office expenses could conceivably have an affect on her
financial interest, in satisfying the terms of the association's
office lease, the interest is speculative. EC-COI-84-98; 87-16.

[3] Although largely self-explanatory, s. 23(c) prohibits you from
disclosing to your sister or her firm any confidential information
which you have acquired as a state employee.