June 19, 1989

 

FACTS:


You are employed by the Perini Corporation (Perini), a company
which provides construction services. Perini intends to bid at some
future date on the planning and reconstruction work on the Central
Artery the Third Harbor Tunnel or adjacent access roads.

You have recently been invited to provide services on a
voluntary basis for the Artery Business Committee (ABC), a private
non-profit corporation established and funded by major Boston
businesses to provide advice and information to the Boston business
community in connection with the Third Harbor Tunnel and Central
Artery construction projects. You expect to engage in meetings with
state, municipal and federal agencies in connection with these
projects on behalf of the ABC.
 


QUESTIONS:


1. By performing advisory services to the ABC, will you be
considered a state employee for the purposes of G.L. c. 268A?

2. By performing advisory services to the ABC, will you be
considered a public employee for the purposes of G.L. c. 268B?

3. What limitations on your ABC activities will arise under G.L.
c. 268A if Perini is hired to perform planning and/or
reconstruction work?

Page 254
 


ANSWERS:


1. No.

2. No.

3. You will be subject to certain limitations described below.
 


DISCUSSION:

1. Jurisdiction under G.L. c. 268A


In order to be considered a state employee for G.L. c. 268A
purposes, you must either hold a position in or provide services
for a "state agency."[1] Based on the information we have received,
we conclude that the ABC is not a state agency for the purposes of
G.L. c. 268A. The ABC has been privately established and funded,
and represents the interests of its corporate membership, rather
than any state agency. In summary, your loyalty in performing your
services on behalf of the ABC will be to the ABC, and not to any
particular government agency. Accordingly, you will not be
considered a state employee through your performance of voluntary
services on behalf of the ABC. See, EC-COI-84-65; 83-3; 83-21.

We note that the definition of "state employee" in s.1(q) does
contain restrictions on subsequent construction work for
individuals who have performed engineering or environmental
analysis for major construction projects either as a state
consultant or as part of the consultant group for the state.
Because the services which you provide for the ABC do not appear
to be as state consultants or as part of a state consultant group,
the restrictions of s.1(q) will not place limitations on your
construction work based on your services for the ABC. See, EC-COI-
83-165
.


2. Jurisdiction under G.L. c. 268B


The mandatory fmancial disclosure requirements of G.L. c. 268B
apply to any individual who holds a major policy-making position
in a governmental body. G.L. c. 268B, s.1(h) defines a
"governmental body" as "any state or county agency, authority,
board, bureau, commission, council, department, division or other
entity." Based on the information we have received, the ABC does
not appear to qualify as a governmental body under G.L. c. 268B.
In particular, the membership, control, objectives and
responsibilities of the ABC are consistent with organizations which
the Commission has previously found to be excluded from the
definition of governmental body. See, EC-COI-FD-87-1; 86-1; 79-3.
Accordingly, the ABC is not a governmental body for G.L. c. 268B
purposes. Moreover, even if the ABC were treated as a goverrnnental
body, the fact that you perform the services for the ABC on an
uncompensated basis would exempt you from G.L. c. 268B. See, G.L.
c. 268B, s.1(o) (uncompensated individuals are not considered
public employees for the purposes of G.L. c. 268B).


3. Application of G.L. c. 268A Following Hiring of Perini


Should Perini be a successful bidder on the prospective planning
and reconstruction work for the Third Harbor Tunnel and Central
Artery, the provisions of G.L. c. 268A could potentially apply to
you or to certain other Perini employees. While the Commission
cannot render advice concerning hypothetical situations, you should
be aware that the Commission has previously addressed the
application of G.L. c. 268A to employees of corporations which
contract with public agencies. See, EC-COI-87-8; 86-22; 86-21; 83-
129
. As applied to Perini, these opinions hold that, while Perini
would not be considered a "state employee" through its contracts
with state agencies, key Perini employees who are either
specifically named in the state contracts or whose specialized
services the state is expecting to be performed under the contract
will be considered state employees for G.L. c. 268A purposes.

At this time, it would be premature to speculate on the effect,
if any, which any such "state employee" status would have on those
individuals who are performing advisory services for the ABC. While
G.L. c. 268A, s.4(c) does prohibit a state employee from
representing non-state parties in connection with matters of direct
and substantial interest to a state agency, s.4(c) might not
restrict activities on behalf of the ABC while holding state
employee status, depending on whether the employee is a "special
state employee" under G.L. c. 268A, s.1(o) and the extent of the
employee's activities on behalf of the ABC. We therefore suggest
that you renew your opinion request with us when and if Perini
enters into a contract status in connection with these state
projects.[2]

---------------

* Pursuant to G.L. c. 268B, s.3(g), the requesting person has
consented to the publication of this opinion with identifying
information.

[1] "State agency," any department of a state government including
the executive, legislative or

Page 255

judicial, and all councils thereof and thereunder, and any
division, board, bureau, commission, institution, tribunal or other
instrumentality within such departments and any independent state
authority, district, commission, instrumentality or agency, but not
an agency of a county, city or town.

[2] We would also note that, under G.L. c. 268A, s.23(b)(3), should
you be considered a state employee in the planning or construction
process, you should disclose to your state appointing official the
fact that you have previously provided services for the ABC in
connection with these construction projects. By such disclosure,
you will dispel any appearance of improper influence in the
performance of your duties under the state contract.

 

End Of Decision