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Opinion

Opinion EC-COI-89-16

Date: 06/19/1989
Organization: State Ethics Commission

A state employee may participate in a matter involving a person who was, 10 years ago, a member of the same athletic club as the state employee, and whom the state employee has not seen in 10 years with the exception of three chance social occasions. To dispel the appearance of favoritism, however, the employee should make a public disclosure to his appointing authority of his past friendship, and be guided by the standards of conduct set forth in section 23.

Facts

You are a member of a state board (Board). Included in the petitions before you is one by a developer/manager (Petitioner) who was formerly a member of an athletic club of which you were also a member more than ten years ago. You have neither seen nor have been associated with the Petitioner for ten years, except for three chance social meetings, and have no current financial or personal relationship with him.

Question

Does G.L c. 268A prohibit your participation as Board member in the matter affecting the above-described Petitioner?

Answer

No.

Discussion

As a member of the Board, you are a state employee for the purposes of G.L. c. 268A. See, G.L. c. 268A, s.1(q). Two sections of G.L. c. 268A regulate the scope of official participation by state employees.

1. Section 6

Under s.6, you are required to abstain from participating as a Board member in any Board proceeding affecting the financial interest of either you, a member of your immediate family, a partner, an organization in which you serve as an officer, director, trustee, partner or employee, or any person or organization with whom you are negotiating or have an arrangement concerning prospective employment. The abstention requirement recognizes that a state employee cannot be expected to remain loyal to the public interest when matters affecting the financial interest of certain personal relationships come before him for decision. On the other hand, we note that the General Court did not extend the s.6 abstention requirements beyond matters affecting those core relationships listed in s.6. See, St. 1986, c.12, s.1 [citizens who serve in government cannot and should not be expected to be without any personal interest in the decisions and policies of government ...[s]tandards of conduct should separate those situations of conflicting interest which are inherent in a free society from those which are unacceptable]"). Accordingly, the Commission has determined that s.6 does not apply to matters affecting personal or business relationships which fall outside of the relationships listed in s.6. See, EC-COI-83-12 (spouse of state employee's sister-in-law is not an immediate family member); EC-COI-83-34 (occasional attorney services do not create an employee relationship); EC-COI-89-12 (hospital overseer is not an officer, director, trustee or employee of the hospital). This same conclusion would also apply to matters which affect friends or former friends of a state employee. Assuming that you have no ongoing or prospective business relationship with the Petitioner, the mere fact that you were once friends does not require your abstention from matters in which the Petitioner may have a financial interest.

2. Section 23(b)

Section 23 prohibits a state employee from using his official position to secure unwarranted privileges or exemptions of substantial value to anyone, G.L. c. 268A, s.23(b)(2), and from creating the appearance that anyone can improperly influence him or unduly enjoy his favor in the performance of his official duties, G.L. c. 268A, s.23(b)(3). These provisions place certain safeguards on your official dealings with past or current friends. To dispel any possible appearance of undue favoritism towards the Petitioner, you should publicly disclose to your appointing official the relevant facts surrounding you relationship with him.[1] You must also be guided by the standards of G.L. c. 268A, s.23(b)(2) and treat the Petitioner's petition according to the same objective procedural and substantive standards by which the Board treats other similar petitions. Insofar as the substantive provisions of G.L. c. 268A are concerned, then, you may participate in the Board matter involving the Petitioner's company. Whether Board members should be subject to

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abstention standards stricter than those contained in c. 268A is a policy question which is beyond the scope of this opinion and could only be addressed through legislative amendment or through the implementation of supplementary standards of conduct by the Board pursuant to G.L. c. 268A, s.23(e). We would also note that, irrespective of the application of G.L. c. 268A, the alleged bias of a state official can be addressed in the context of a petition for judicial review of the agency's decision. See, Attorney General v. Department of Public Utilities, 390 Mass. 208 (1983); EC-COI-82-31.

 

[1] We note that you have previously disclosed to the parties in the Board proceeding these relevant facts.

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