Massachusetts General Laws c. 268A, the state's conflict of interest law, governs the conduct of state officials. In general, § 4 of the conflict law prohibits a state official from acting as an agent for anyone other than the state in connection with any matter in which the state is a party or has a direct and substantial interest even if the state official abstains from taking any official action on this matter. It also prohibits a state official from requesting or receiving compensation in relation to any particular matter in which the state is a party or has a direct and substantial interest. A state agency includes any board, commission, authority, other state body or instrumentality of the state.
These provisions are intended to prevent divided loyalties. As discussed below, they apply less restrictively to "special state employees" and to legislators.
What activities are considered "acting as agent"?
An agent is anyone who represents another person or organization in dealings with the state. Almost any instance where you are acting on behalf of someone else can be considered "acting as an agent." For example, contacting or communicating with the state on another person's or group's behalf, acting as a liaison with the state on another person's or group's behalf; providing documents to the state on another person's or group's behalf: or serving as a spokesperson before the state on another person's or group's behalf have been considered "acting as an agent."
When does the state have a direct and substantial interest in a matter?
The state has a direct and substantial interest in:
- any matter pending before, under the official jurisdiction of, or involving action by a state agency, board, commission, authority or other state body;
- any effort to change state regulations, policies or procedures;
- any contract, court case or other legal matter in which the state is a party, or
- any ruling or other action by a federal, regional or state agency involving matters which are subject to regulation by the state.
Can a volunteer board member appear before the board on which he or she serves on behalf of private clients?
No. A state employee, even one who serves as an unpaid volunteer on an appointed board is prohibited from acting as an agent for private clients before the board on which he or she serves. For example, an Ethics Commissioner who is an attorney may not represent a client before the Ethics Commission.
A state employee always may, however, represent him or herself before his or her own board. For example, the insurance commissioner may appeal an insurance surcharge. She may not, however participate as commissioner in any determination or decision regarding her appeal, unless she is able to get an exemption.
Can a volunteer board member appear before state boards other than the one on which he serves?
Yes, a volunteer board member is a "special state employee." A special state employee may act as an agent before state boards other than his own, provided that he has not officially participated in the matter, the matter is not now (and was not within the past year) within his official responsibility or the matter is pending in the state agency in which he is serving. For example, an unpaid member of an advisory board to the Department of Environmental Protection, which meets twice a week, may appear on behalf of a client of his private law practice before the division of industrial accidents. He may not appear, however, before the Department of Environmental Protection regarding a matter involving a client.
A state official who is not a special state employee may not appear before any state boards or agencies.
What is a "special state employee"?
Some state positions are automatically designated as "special state employees" under the law. State employees are "special state employees" if:
- they do not receive compensation; or
- they are not an elected official; and
- they hold a position which allows you to work at another job during normal working hours; or
- they were not paid for more than 800 working hours (approximately 20 weeks full-time or 15 hours or less per week part-time) during the preceding 365 days. Compensation by the day is equivalent to seven hours per day.
How does § 4 apply to members of the General Court (legislators)?
The law applies in a very limited way to legislators. A legislator may not personally appear before a state agency for any compensation other than his legislative salary unless:
- the matter before the state agency is ministerial, such as filing or amending tax returns, applications for permits or licenses, incorporation papers or other documents; or
- the appearance is before a court of the commonwealth; or
- the appearance is in a quasi-judicial proceeding, such as adjudicatory proceedings or proceedings that are appealable to the courts.
Are there any exceptions to these rules for state officials who are full-time employees and thus cannot be "special state employees"?
There are a number of exemptions available to state employees including:
- Testimonial Exemption: This allows a state employee to give testimony under oath. See EC-COI-98-1.
- Disciplinary or Personnel Administration Proceedings Exemption: This allows a state employee to aid or assist another person who is the subject of disciplinary or other personnel administration proceedings with respect to those proceedings. The state employee, however, cannot be paid to do so.
- Immediate Family/Fiduciary Exemption: This exemption allows a state employee to act as an agent for, or aid or assist members of his immediate family or any person for whom he is serving as guardian, executor, administrator, trustee or other personal fiduciary, except in those matters in which he, in his state role, has participated or which are the subject of official responsibility; provided, that his appointing authority approves.
This exemption is not available to elected municipal employees.
- State Tax Returns. Restrictions in § 4 “shall not prevent a state employee, other than an employee in the department of revenue, from requesting or receiving compensation from anyone other than the commonwealth in relation to the filing or amending of state tax returns.”
and one that allows a state official to hold elective or appointive office in a city, town or district with certain restrictions. For additional information, see Advisory 94-01: State Employees Acting as Agent.
The commission has also created a number of regulatory exemptions to § 4. These regulatory exemptions allow state employees to
- serve in volunteer positions (930 C.M.R. 6.02);
- advocate for their children with public employees, provided that certain restrictions are satisfied (930 C.M.R. 6.03);
- act on behalf of volunteer medical or rescue organizations in exigent circumstances (930 C.M.R. 6.04);
- for persons who are special municipal employees by reason of performing contracted legal or other professional services for a municipal agency, have a financial interest in an additional municipal contract, provided certain restrictions are satisfied (930 C.M.R. 6.13(3));
- hold a position with the federal census 930 C.M.R. 6.18; and
- participate as a board member in a determination of general policy, even if, in doing so, the board member gives the views of the entity, industry, constituency, or stakeholder group with which he or she is affiliated, where the public board is legally required by a legal requirement to have members who are affiliated with a specified entity, industry, constituency or stakeholder group (930 C.M.R. 6.23(3)(a).
There may be other exceptions that would apply to a particular situation. Please contact the Ethics Commission for advice at (617) 371-9500.