Section 23(b)(3) Legal Opinions

This section of the conflict of interest law prohibits a public employee from engaging in conduct which would cause a reasonable person to conclude that any person or entity can improperly influence the employee
  • EC-COI-82-33

    Section 4 of the conflict of interest law does not prohibit a state employee who is also an attorney in private practice from participating as an attorney in civil matters in federal district court or in matters before a municipality provided that the state neither was a party nor had a direct and substantial interest in those matters. Under section 23 of the law, the state employee should refrain from representing private clients in any proceedings which involve parties with whom he had dealings in his state capacity.

  • EC-COI-83-116 

    A District Court Judge may handle driver education/alcohol program referral cases while the Judge's step-son is employed by the non-profit that administers the program pursuant to a contract with the Department of Mental Health Division of Alcoholism.

  • EC-COI-84-16

    The conflict of interest law does not prohibit a state agency from entering into contracts with another state agency where the agency heads of each agency are married. Both spouses would be subject to § 23.

  • EC-COI-84-27

    A state employee does not violate § 7 of the conflict of interest law by seeking reimbursement for lodging and food expenses in connection with a temporary assignment where the reimbursed funds will be paid to another state employee who owns the property and will provide the lodging and food because expense reimbursements do not create a contract. A state employee who approves the expense reimbursements paid to a subordinate who then, in turn, pays the reimbursements to another subordinate, is subject to § 23.

  • EC-COI-84-30

    A law firm associate is subject to §§ 4 and 23 by serving as a legal consultant to the Department of Administration and Finance and representing the interests of the Commonwealth in matters before a state agency.  As a special state employee, the associate can represent law firm clients before the state agency as long as the Department of Administration and Finance is not an intervenor in the matter.

  • EC-COI-85-9

    A member of the General Court may also consult to a private company which does a small amount of business with state agencies. Because he will neither work on state contracts nor have his compensation attributable to those contracts, and has no propriety interest in the company, he will not have a financial interest in the company's contracts with the state.

  • EC-COI-85-14

    A member of the General Court would not be disqualified from voting on most banking legislation if his wife were named as a member of the board of directors of a bank, however, he should avoid making decisions which are unduly affected by his wife's affiliation with the bank.

  • EC-COI-85-15

    A developer who also serves as an unpaid member of a state board is a special state employee. He may neither submit private proposals on property under the control of his board, nor officially participate in decisions in which he has a financial interest. He may seek development financing from other state agencies following his compliance with the disclosure provisions of § 7(d).

  • EC-COI-85-16

    An assistant district attorney may serve as an incorporator of a non-profit corporation. He may not represent the corporation as its agent or attorney before state agencies and must abide by the standards of conduct in §23 whenever his public and private dealings overlap.

  • EC-COI-85-22

    A former member of the town planning board may not act as the agent for or receive compensation from a development team in which he is a partner, on matters in which he previously participated in as a board member. Further, he may not appear before the board on any matter which was pending before the board while he was a member. This restriction also prohibits the former municipal employee from sharing in the fee that the development team will receive for its work before the planning board. His partner is prohibited for one year from participating in any activity in which the former board member is prohibited from participating. A committee of church members promoting the development is not a municipal agency. However, the committee members who are also municipal employees should refrain from appearing on behalf of the committee before the town.

  • EC-COI-85-26

    A General Court member whose legislative employee plans to marry his daughter, is subject to the §23 standards of conduct in his official dealings with his employee. For example, he must grant salary increases, and vacation leave which are consistent with objective personnel criteria applicable to other employees. He is not subject to the mandatory disqualification of § 6 because his son-in-law would not be an immediate family member.

  • EC-COI-85-32

    An attorney who works in a state agency may conduct her own real estate business subject to certain limitations. In particular, she may not take any action as a state employee with respect to any property or person with whom she does, or expects to do, business, nor may her business receive a commission from the purchase or sale of state property unless certain special conditions have been satisfied.

  • EC-COI-85-34

    A full-time manager in a regional office of a state agency is prohibited from reviewing or recommending service contract proposals prepared by her husband for a vendor of that state agency and must also exercise caution in reviewing proposals submitted by competing vendors.

  • EC-COI-85-47

    A member of a quasi-public agency, who is also an officer of a bank, may in addition serve as an unpaid member of a municipal industrial development finance authority as long as he abstains from participation in matters overlapping any of the three entities and files appropriate.

  • EC-COI-85-54

    A president of a state educational institution may also serve as director of a bank. However, he may not receive compensation from or act as agent of the bank in matters such as bank audits and bank applications to state agencies, nor can he participate as president of the educational institution in maters in which the bank has a financial interest.

  • EC-COI-85-62

    A county board member may participate in a development proposal affecting a business the board member does business with provided that he complies with sections 23 and 13.

  • EC-COI-85-71

    The head of a state agency may hire an employee who is married to a unit manager within the same state agency as long as he complies with his customary agency hiring procedures and does not otherwise grant undue preferential treatment. Once the employee is hired, the unit manager will be subject to several restrictions in his official dealings with his wife. He may not participate as unit manager in any matters affecting his wife's financial interest, including salary and promotional determinations and other terms and conditions of employment because he will make job assignments to his wife and participate in strategic decisions regarding her handling of cases, there is a risk that he may create the impression of undue favoritism to her because of their marital relationship. To dispel any impression of favoritism, his deputy should oversee his exercise of these responsibilities to insure that the assignments and decisions are based on objective criteria.

  • EC-COI-85-76

    A clerk-magistrate for the district court department is a state employee for the purposes of G.L. c. 268A. He may purchase surplus property offered by a municipality because the commonwealth lacks a direct and substantial interest in the transaction. Should a matter come before him as clerk-magistrate during this period which involves the municipality's public facilities department, he must avoid creating the impression of undue favoritism. This can be achieved by either his refraining from participating in the case or by his disclosure of the facts to his appointing official and discussing safeguards which can dispel any improper impression.

  • EC-COI-85-80

    An unpaid member of a state agency board is a "special state employee" and so is permitted to have a financial interest in an employment contract with a second state agency because, in his unpaid board member capacity, he neither participates in nor has official responsibility for any of the activities of the second agency. Although the two agencies share some common subject matters, his involvement does not rise to the level of personal and substantial participation or official responsibility for activities of the second agency. He would be subject to § 23. To avoid creating the appearance of undue favoritism whenever matters involving the two agencies arise, he should abstain from involvement in any common matter.

  • EC-COI-85-81

    A full-time state employee may not work for a private company after hours under a contract made by his own state agency. If he leaves his full-time position to work for the company under the contract, he will remain a state employee if the contract contemplates that he will perform certain specialized functions.

  • EC-COI-85-85

    A lawyer designated to represent a public instrumentality of the Commonwealth as its general counsel is a state employee for the purposes of G.L. c. 268A. He may also represent two communities in matters in which the state is neither a party nor has a direct and substantial interest. Because the state will not be affected by his advice to the communities, the state will not have a direct and substantial interest in these matters.

  • EC-COI-86-3

    A state employee at the Secretary of State's office is considering a real estate venture that may seek limited partners which is overseen by the Secretary of State's office. Permissible but restrictions apply under sections 4, 5(d), 6 and 23.

  • EC-COI-86-19

    A city councilor may participate in an order authorizing the mayor to file a home rule petition with the General Court that would require drug testing of public safety personnel provided that he first publicly disclose that the petition could affect his police officer brother.
  • EC-COI-86-22

    A special state employee is subject to the restrictions of §§ 4(c), 6 and 23 of the conflict of interest law in matters involving her private business interests that may involve state agencies.
  • EC-COI-87-5

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

  • EC-COI-87-6

    The chief executive officer of a company which has performed services for the campaign committee of the head of a state agency may accept employment with that agency.

  • EC-COI-87-22

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

  • EC-COI-87-29

    A newly-hired state employee may receive deferred compensation from his former law firm for services performed prior to becoming a state employee, but must abstain from participating as a state employee in all matters affecting the financial interest of the firm's partners while he remains a partner in the firm's investment fund. His receipt from the firm of free tax preparation services for the current year would not violate section 23 because the firm makes the same service available to all former employees similarly situated.

  • EC-COI-87-30

    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.

  • EC-COI-89-9

    A member of the General Court may not have a financial interest in his family's business contract made with a state agency prior to his election. Notwithstanding his transfer of ownership of his business to his spouse, he retains a financial interest in the business, and therefore, in the contract with the state.

  • EC-COI-89-10

    A county commissioner may also represent clients in real estate and health care issues before municipal, state and federal agencies, inasmuch as these matters are not of direct and substantial interest to the county.

  • EC-COI-89-18

    An employee of a private construction firm will not be considered a state or public employee if he performs advisory services for a private, non-profit corporation that was established to provide advice to the Boston business community regarding the Third Harbor Tunnel and Central Artery construction projects. If his construction company is hired to do planning and/or re-construction work on the project, the employee should contact the Commission for further advice.

  • EC-COI-89-19

    A municipal official may participate in a local zoning amendment decision where the municipal official's spouse does not have a reasonably foreseeable financial interest in the decision because it is unknown how the decision will affect the real estate of a corporation in which the spouse owns stock.

  • EC-COI-90-5

    Partners in a law firm may perform legal services for a state agency subject to sections 6 and 23.

  • EC-COI-91-3

    Members of the Martha's Vineyard Commission are considered employees of an independent municipal agency for purposes of G.L. c. 268A. A commissioner may participate in a permit application when he is a party to a lawsuit challenging Commission approval of a prior permit if he complies with section 23(b)(3).

  • EC-COI-91-4

    A state employee who serves as a member of the boards of directors for two private corporations may accept compensation and otherwise act in such positions because the companies' activities do not relate to any contract or other particular matter in which the Commonwealth or an agency thereof is a party of has a direct and substantial interest. Similarly, a state employee may provide consulting services to a quasi-public agency of another state where none of the agency's activities relate to a contract or other particular matter in which the Commonwealth is a party or has a direct and substantial interest.

  • EC-COI-92-2

    A state legislator may not solicit donations for personal financial assistance from anyone with an interest in legislative business, broadly defined. He may not accept unsolicited donates of $50 or more from anyone with such an interest, nor from any combination of persons with a common interest in the same legislative business.

  • EC-COI-92-3

    A federal agency is an "organization" (but not necessarily a "business organization") within the meaning of G.L. c. 268A, section 6. Consequently, a state employee who negotiates for employment with a federal government agency may trigger the disclosure/determinations requirements of section 6. The federal government is not, however, treated as a single organization. Rather, each federal agency may be treated as a separate organization.

  • EC-COI-92-7

    A state employee may not enter a private business relationship with a subordinate (nor with a vendor he supervises, nor a person within his regulatory jurisdiction) unless: (1) the relationship is entirely voluntary; (2) the subordinate initiates the relationship; and (3) the supervisor publicly discloses facts clearly showing (1) and (2).

  • EC-COI-92-25

    A state environmental police officer may also be appointed to an unpaid municipal conservation commission, but he may not act as that commission's agent in relation to any particular matter within his state agency's purview. In effect, he may also not perform his state environmental police duties within that town.

  • EC-COI-92-31

    A housing inspector for a housing authority may (as a private landlord) receive housing assistance payments made on behalf of an eligible tenant, because the inspector does not have responsibility for the administration of the subsidy program. Since the inspector's role in the subsidy program is limited to conducting on- site inspections, he qualifies for the exemption found in section 20(h).

  • EC-COI-92-35

    Section 7 prohibits an employee of a state agency from having a financial interest in state subsidized rents (or other state benefits paid directly to the state employee in exchange for goods or services) unless she can rely upon an exemption to section 7. In addition, section 23 prohibits a state employee from initiating private business relationships with person over whom she exercises official authority.

  • EC-COI-92-38

    G.L. c. 268A, section 3 will not prohibit employees of the Executive Office of Economic Affairs from soliciting funds from private businesses who have official dealings with the agency in order to fund an agency program as a statute authorizes the solicitation and the solicitation is for the benefit of the agency, not a particular public employee. Section 23(b)(3) requires that state employees who have official dealings with contributing organizations file a disclosure with their appointing authority.

  • EC-COI-93-17

    A Selectman who is also a teacher cannot re-negotiate a Town Manager's contract (where re-appointment or conditions upon which the Manager can continue employment are at issue), but he may participate in the mere evaluation of the Manager's performance (where re-appointment is not at issue).

  • EC-COI-93-24

    268A and 268B would regulate the private law practice of a potential appointee to the State Ethics Commission. The potential appointee would be unable to take any official action on matters involving clients represented by her private law firm. Fellow members and associates of her firm (which is a Professional Corporation) are not "partners" for the purposes of section 5(d), unless there is reason to disregard the corporate entity.

  • EC-COI-95-10

    Using a four-factor jurisdictional test, the Commission finds that a Downtown Association, initially funded by an Executive Office of Communities and Development Downtown Partnership Program grant awarded to the city, is a private entity -- not a municipal agency -- for purposes of the conflict law. A member of the city's Historic Commission, who serves ex officio as a member of the Downtown Association's board, will be subject to the restrictions of G.L. c. 268A, sections 19 and 23 in the performance of her official duties. Also, her actions as a Downtown Association board member will be subject to the restrictions of G.L. c. 268A, section 17, unless the City Council determines that her municipal duties include representation of the Downtown Association.

  • EC-COI-95-11

    A former Chairman of a town Zoning By-Law Study Committee, who is a lawyer in private practice, may serve as paid counsel to the Committee. However, his private law practice will be subject to the restrictions of G.L. c. 268A, sections 17, 18, and 23, and his official actions subject to the restrictions of G.L. c. 268A, sections 19 and 23.

  • EC-COI-11-3

    A city council member may also serve as a library trustee and, as a city council member, vote on the library budget because the library is a municipal agency and not a business organization.

  • EC-COI-12-1

    A municipal employee may, consistent with the conflict of interest law, solicit donations to a municipal trust fund from persons and entities with whom he, or other municipal employees, has or expects to have official dealings, provided that (1) the solicitation is carried out in accordance with G.L. c. 44, § 53A; (2) the solicitation is not made in circumstances that are inherently coercive because the person or entity solicited may be directly and significantly affected by a pending or anticipated decision of the same municipality; (3) no overt pressure is exerted in connection with any such solicitation; (4) the municipality and its employees apply objective standards in all dealings with persons and entities solicited, and do not favor those who give or disfavor those who do not; and (5) the municipal employee principally responsible for making such solicitations discloses the names of all those solicited in any manner (oral, written, electronic, or other), by himself or other municipal employees; these disclosures must be made publicly and in writing pursuant to G.L. c. 268A, § 23(b)(3).

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