Opinion  EC-COI-88-16

Date:	06/14/1988
Organization:	State Ethics Commission

Members of the Massachusetts Museum of Contemporary Art (MOCA) Commission are considered municipal employees of the City of North Adams because the Commission is an agency of the City. A MOCA Commission member is thus subject to sections 17, 19, and 23 with respect to his private positions as adjunct professor at Williams College and as Director of the Guggenheim Foundation. 

Facts

You anticipate appointment as a member of the Massachusetts Museum of Contemporary Art Cultural Development Commission (MOCA Commission). The MOCA Commission will be established by the City of North Adams (City) to act on behalf of the City in entering into contracts for the design, construction and operation of a museum of contemporary art. See, St. 1988, c. 8. As proposed, the MOCA Commission will Consist of seven members representing the public
interest without compensation. Appointments will be made by the Mayor, with the consent of the City Council. The City Council envisions that the establishment of a museum will involve collaboration with Williams College (College), a private higher education institution which currently operates a museum. It is also likely that employees of the College will contract with the MOCA Commission for the design and operation phases of the museum's development.

You have served as the Director of the College Museum of Art and will continue to hold that position until July 1, 1988. After that date you will become an adjunct professor and you will teach courses at the College and receive compensation from the College for your teaching activities. You state that your College compensation will be limited to your teaching and will not be attributable to any contracts between the College and MOCA Commission. Your primary employment will be as a Guggenheim Foundation Director in New York City.

Question

Does G.L. c. 268A permit you to serve as a MOCA Commission member while also serving as a teacher at the College and as the Director of the Foundation?

Answer

Yes, subject to the limitations described below.

Discussion

A. Jurisdiction

The MOCA Commission was established pursuant to St. 1988, c. 8, an Act Assisting the City of North Adams in the Development of the Massachusetts Museum of Contemporary Art. Under c. 8, the Commonwealth is authorized to grant 35 million dollars to the City to acquire land and buildings to be used for the construction of the Museum. The City, in turn, has created and appointed members to the MOCA Commission to act on its behalf in carrying out the purposes of the act, pursuant to St. 1988, c. 8, s.1. In view of the accountability of the MOCA Commission to the City, and the authority which the Commission will exercise on behalf of the City, the MOCA Commission is a municipal agency of the City for the purposes of G.L. c. 265A See, EC-COI-83-74. Upon your appointment
as one of the seven members of the MOCA Commission, you will be subject to the four provisions of G.L. c. 268A which apply to municipal employees.

B. Substantive Restrictions
1. Section 19

As a municipal employee, you must abstain from participating in any contract, decision, application or other particular matter in which a business organization which employs you has a financial interest. As a visiting teacher at the College, you will be employed by a business organization for the purposes of G.L. c. 268A, s.19. See, EC-COI-88-4 (corporations, whether established on a for-profit or non-profit basis, are business organizations under s.19). Therefore, absent qualification for an exemption to s.19, you are required to abstain from participating as a MOCA Commission member in any particular matter in which the college has a financial interest.

One exemption available to you which would permit your participation in matters affecting the College is contained in G.L.c. 268A, s.19(b) (1). Following your disclosure of the relevant financial interests to your appointing official, that official may determine that the College's interest is not so substantial as to be deemed likely to affect the integrity of the services which the city expects from you.[1] The same exemption procedure would also be required if matters affecting the financial interests of the Guggenheim Foundation came before you on the MOCA Commission.

2. Section 17

This section places restrictions on your activities on behalf of non-City parties. Specifically, s.17 prohibits you from receiving compensation from or acting as agent of the College in connection with any particular matter in which either the MOCA Commission or any agency of the City is a party or has a direct and substantial interest. In view of your statement that your activities for the College will be limited to teaching, and that you will not be working for the College on any aspect of the MOCA Commission, this section should not pose problems for you. You should keep the principles of s.17 in mind, however, with respect to your Guggenheim assignments should those assignments involve the MOCA Commission. For example, you may not assist the Foundation in applying for contracts with the MOCA Commission.

3. Section 20

Under s.20, a municipal employee may not have a financial interest, directly or indirectly, in a contract made by any agency of the same municipality. As applied to you, s.20 prohibits you from having a financial interest in any contract awarded the MOCA Commission. For example, if the College were awarded MOCA
Commission contracts, your college compensation could not be attributable to those contracts. For similar reasons, your Guggenheim compensation may not be attributable to contracts which the Foundation may have with the MOCA Commission.

4. Section 23(b)(2)

This section establishes standards of conduct for municipal employees. Under s.23, a municipal employee may not use his official position to secure for anyone an unwarranted privilege of substantial value. To the extent that current or former college employees may be performing services for the MOCA Commission, issues under s.23 may come into play in your exercising your official responsibilities as a MOCA Commission member. To comply with s.23(b) (2), you may not accord such employees special treatment, and you must evaluate their work by the same objective standards by which other employees and applicants are evaluated.

* Pursuant to G.L. c. 268B, s.3(g), the requesting person has consented to the publication of this opinion with identifying information.

[1] We understand that the city Council, in it's proposed ordinance relating to the MOCA Commission, intends to grant written determinations on a limited basis to College employees pursuant to G.L. c. 268A, s.19 thereby permitting your participation in some matters affecting the College. we would note, however, that the
determination, in order to be effective, must be made by your appointing official. See, EC-COI-87-41. Because it appears that your appointing official under the proposed ordinance is the Mayor, rather than the City Council we believe that the Mayor is the appropriate official to grant exemptions under s.19(b)(1).

End Of Decision