March 13, 1991

FACTS:

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You are an elected county official. You are also considering part-time employment with XYZ, a company which is under permit to provide disposal and treatment services for underground tanks and contaminated water which cannot be disposed of through normal sewage methods. In your position at XYZ, you would provide managerial and financial advice and, in consideration, would receive a 5% interest in the non-voting stock of the company. XYZ does not do any business with the county or any county agency, and does not expect to do so in the future with regard to any particular matter in which a county agency is a party or has a direct or substantial interest. You would perform services for XYZ outside of your normal work schedule for the county.


QUESTION:


Does G.L. c. 268A permit your part-time employment with XYZ?


ANSWER:


Yes, subject to certain conditions.


DISCUSSION:


You are a county employee for the purposes of G.L. c. 268A.  The primary provisions which limit the outside activities of county employees are s.11 and s.23. Under s.11, you are prohibited from either receiving compensation from or acting as an agent for XYZ in connection with any decision, contract or other particular matter[1] in which the county is either a party or has a direct and substantial interest. See, In the Matter of James Collins, 1985 SEC 228, 230. For example, the Commission concluded in EC-COI-89-10 that prohibited matters under s.11 would include decisions regarding the use of county retirement funds, In the Matter of James Collins; county insurance contracts, EC-COI-83-150 and civil actions in which the county is a party, EC-COI-80-42. On the other hand, where the interest of a county agency is too remote or tenuous, the prohibition of s.11 does not apply. See, EC-COI-85-46 (filing of documents with County Registry); EC-COI-81-21 (criminal prosecutions by district attorneys); EC-COI-81-166 (campaign manager activities on behalf of state office candidate). Your activities for XYZ do not appear to involve the interests of the county in any direct and substantial way inasmuch as XYZ has no dealings with the county or any county agency.

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Under s.23(b)(2), you must avoid using your official position to secure any unwarranted privileges or exemptions of substantial value for yourself or XYZ. To comply with s.23, you must conduct your XYZ activities entirely outside of your regular county work schedule, and must refrain from using any county resources such as clerical assistance, telephones, copy machines, word processors, stamps, and automobiles for your non-county-related activities. In particular, you should keep accurate records of your work schedule so as to avoid any ambiguity about the use of your time.

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[1] "Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, s.1(k).

 

End Of Decision