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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.
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."
The state has a direct and substantial interest in:
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.
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.
Some state positions are automatically designated as "special state employees" under the law. State employees are "special state employees" if:
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:
There are a number of exemptions available to state employees including:
This exemption is not available to elected municipal employees.
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
There may be other exceptions that would apply to a particular situation. Please contact the Ethics Commission for advice at (617) 371-9500.