Opinion  EC-COI-87-5

Date:	04/06/1987
Organization:	State Ethics Commission

A state employee may serve as a paid member of the board of directors of a bank.

Facts

You are a full time state employee and are considering serving as a member of the board of directors of a bank. You may also become a member of a bank sub-committee regarding community issues. For your services as a member of the board, you would be paid an annual retainer for each board of directors' meeting.

Question

Does the conflict of interest law permit you to serve simultaneously as a state employee and a member of a bank's board of directors?

Answer

Yes, subject to the limitations discussed below.

Discussion

You are a state employee within the meaning of G.L. c. 268A, the conflict of interest law, By virtue of your state employee status, you are prohibited from receiving compensation from the bank regarding any particular matter [1] in which the commonwealth or a state agency is a party or has a direct and substantial interest. G.L. c. 268A, s.4(a). This restriction, for example, would prohibit you from participating in a bank decision to seek accounts with state agencies or to establish a state scholarship program. You may not assist in bank determinations to lease space in state buildings for automatic teller machines. Furthermore, if the subcommittee of the board confronts a matter which concerns the State Division of Banking. you may not participate in that matter. In short, the bank may not compensate you to perform any bank director services concerning matters of direct and substantial interest to the state.

In addition, s.4(c) of the conflict law prohibits you from acting as bank agent in connection with a particular matter in which the commonwealth or a state agency has a direct and substantial interest. For example, you could not represent the bank in a meeting with state agency directors regarding state bank accounts. You may not approach or communicate with any state agency on the bank's behalf, whether formally or informally. Compliance with this restriction will avoid any question that you would or could influence a state agency on behalf of the bank.

Although there does not appear to be any current relationship between the bank and your state agency, we offer the following guidance if this situation changes. Generally, a state employee may not participate[2] in any particular matter in which a business organization in which he serves as director has a financial interest. Consequently, you would be prohibited from participating as a state employee in any matter in which the bank has a financial interest.[3]

Finally, the "standards of conduct" provisions of the conflict law prohibit a state employee from using his official position to obtain unwarranted privileges for himself or others. G.L. c. 268A, s.23(b)(2). For example, you may not conduct bank business on state time or use state resources for such work. You would be required to take vacation or personal time from your state job to attend daytime director meetings. You also must not engage in conduct which gives a reasonable basis for the impression that you could be improperly influenced by your relationship with the bank. G.L. c. 268A, s.23(b)(3). You should consider these principles any time your state job places you in a position to affect or favor, directly or indirectly, the bank.[4]

[1] "Particular matter," is defined as any judicial or other proceeding, application, submission, request for a ruling or other determination, contract,

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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] "Participate," is defined as participate in agency action or in a particular matter personally and substantially as a state, county and municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.6(b).

[3] There is an exemption to the prohibitions of s.6 if you receive written permission to participate from the official responsible for your appointment G.L.c. 268A, s.6(b).

[4] Section 23(b)(9) provides that "No current officer or employee of a state agency shall knowingly ... act in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, disclose in a manner which is public in nature, the facts which would otherwise lead to such a conclusion."