Opinion  EC-COI-87-30

Date:	08/17/1987
Organization:	State Ethics Commission

A state employee who has been accepted into an uncompensated college fellowship program must comply with section 23 whenever he participates as a state employee in matters affecting the college.

Facts

You are the head of state agency ABC. You have applied for a
Fellowship at the private college. The Fellowship is designed to
permit persons who have demonstrated leadership in particular
professions to pursue a program of independent study. Fellows take non-credit courses at the college or at certain other schools.
Fellows have an obligation to contribute to the educational
experience of students by giving talks and slide presentations,
advising students on their papers and thesis, or by serving, on
occasion, as consultants in courses and at studios. Before the end
of a year, Fellows prepare a written report describing their
activities and their contributions to the school.

You followed the same application process required for all
applicants. You state that you sought no special consideration
because of your ABC position and none was accorded. The only
significance of your ABC position was whether your duties were
germane to the subject matter of the program. Application
preferences were given to individuals in key professional positions
who were continuing in their leadership roles to improve their
professional environment, Applicants were asked to describe
specifically how a Fellowship would enhance their abilities to make
this kind of contribution. Applications were reviewed by a
screening Committee of Fellows, none of whom are college employees.

The award process is independent of the college and, once the
Selection Committee makes its decision, it is routinely affirmed
by the college.

You have identified three previous occasions in which you have
participated in decisions which potentially may have a financial
impact upon the college. Although there had been very few matters involving the college in the past, it is possible that you will be called upon to make decisions which may potentially have a
financial impact on the college.

Question

If you commence the Fellowship in mid-September, will you be
permitted to participate as an ABC employee in particular matters
which may potentially impact the financial interest of the college.

Answer

Yes, provided that you comply with the restrictions outlined
below.

Discussion

As a state employee you are subject to the restrictions in the
conflict law, the applicable sections of which are s.s.6 and 23.
Each will be discussed in turn.

1. Section 6

Section 6 prohibits you from participating as an ABC employee
in a particular manner in which to your knowledge, you or a
business organization in which you are serving as officer,
director, trustee, partner or employee, or any organization with
whom you are

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negotiating or have any arrangement concerning perspective
employment, has a financial interest. We conclude that a Fellow is
not an employee of the college within the meaning of the conflict
law. A Fellow does not receive compensation in exchange for
services rendered. Although the program provides Fellows with fixed allowances for certain incidental expenses, such allowances are more properly characterized as reimbursement rather than
compensation.[1] Given that you are not an officer, director,
trustee, partner or employee of the college by virtue of your
fellowship, s.6 would not prohibit your ability to participate in
decisions which may potentially have a financial impact upon
the college.

2. Section 23

Section 23(b)(3) prohibits a public official from acting in a
manner which would cause a reasonable person, having knowledge of relevant circumstances, to conclude that any organization or person can improperly influence or unduly enjoy his favor in the performance of his official duties as a result of the person's relationship with the organization. A reasonable person might conclude that you will be unduly influenced in the performance of your duties if you are called upon to make an objective unbiased decision regarding the college at the same time that you are a Fellow. There is, however, a mechanism by which you may dispel any appearance of undue influence or favoritism. Specifically, you may disclose in writing to the Governor the facts which would otherwise lead to such a conclusion. In other words, if prior to making any specific decision regarding the college you disclosed to the Governor the fact of your Fellowship, and the nature of the decision you are required to make, you will have fulfilled the requirements of s.23(b)(3), and will have dispelled any appearance of improper influence.[2]

[1] We understand that under limited circumstances scholarship
assistance may be available. Such assistance, if given an exchange
for specified services, may constitute compensation. We understand,
however, that you will not avail yourself with any scholarship
assistance. If this is not the case, you should seek further
clarification on this point.

[2] Because you have sought and received the approval of your plans
from the Governor and your cabinet secretary, it is unnecessary to
determine whether stricter standards on your activities would be
appropriate under G.L.c. 268A, s.23(e).