November 21, 1988

FACT:


You are a full-time police officer with a state agency. For a
number of years, you have held the position of traffic reporter.
In this capacity, it has been your responsibility to gather traffic
information and to provide commuter traffic information to the
local media. Specifically, for the past year, you have been
providing, consistent with the station's agreement with your state
agency,, a local television station with traffic reports for their
evening newscast[1] Your compensation for the position of state
agency traffic officer consists solely of your pay as a state
agency police officer. You work a split shift as a traffic
reporter, so that you are off duty for several hours in the middle
of the day. The local television station that airs your reports has
now offered you a part-time job as a traffic analyst where you
would use your off-duty time to gather information on and to
produce reports for broadcast on matters such as major construction
projects in the Boston area and the effect they would have on
traffic. You propose to use your name in producing these reports
as well as to use only private vehicles, materials and equipment
in your private work.


QUESTIONS:


Does G.L. c. 268A permit you to accept this offer of part time
employment as a private individual and traffic analyst for this
local television station?


ANSWER:


Yes, subject to certain limitations set forth below.


DISCUSSION:


In your capacity as a state agency police officer, you are a
state employee for the purposes of G.L. c. 268A, See, G.L. c. 268A,
s.1(q); EC-COI-84-124. Three sections of G.L. c. 268A are relevant
to your question.[2]


1. Section 4


Section 4(a) generally prohibits a state employee, otherwise
than as provided by law for the proper discharge of his official
duties, from directly or indirectly receiving or requesting
compensation from anyone other than the Commonwealth or a state
agency, in relation to any particular matter[3] in which the
Commonwealth or a state agency is a party or has a direct and
substantial interest. Although the local television station is
someone other than the state, the compensation which you would
receive from the station would not be in relation to a particular
matter in which the state has a direct and substantial interest,
The compensation, rather, would be in relation to the reporting you
would do on general traffic issues in the area. The Commission has
held that general policy issues, EC-COI-85-16, and entire
construction projects are not particular matters within the meaning
of the statute. EC-COI-85-22. Indeed, although the state agency
police department that employs you has a direct interest in traffic
information, as a result of its traffic supervision function, we
conclude that the interest of the state agency in general traffic
stories is not substantial. Although the Commission has held that
certain matters which the state extensively regulates or supervises
are of direct and substantial interest to the Commonwealth, e.g.,
cable television licenses (EC-COI-79-6) and local liquor licensing
(EC-COI-79-6), the production of general traffic stories is not one
of these matters. In addition, Commission precedent indicates that
radio broadcasts are not particular matters of direct and
substantial interest to the Commonwealth merely because they are
subject to state regulation. EC-COI-82-47. Therefore, s.4(a) does
not apply.


2. Section 6


Section 6 prohibits a state employee from participating[4] as
a public official in any particular matter in which he, his
immediate family[5] or partner or business organization in which
he is serving as officer, director, trustee, partner or employee,
or any person with whom he is negotiating or has any arrangement
concerning prospective employment, has a financial interest. Under
this section, you would be prohibited from participating as a state
agency traffic reporter in any particular matter in which the local
television station had a financial interest, Were a contract,
submission or other particular matter affecting the station's
financial interest to come before you in your state agency
position, you would have to advise your appointing official and
this Commission in writing of the nature and circumstances of the
particular matter and make full disclosure of the financial
interest involved. You may not thereafter participate in the mat-

Page 217

ter unless your appointing official makes a written determination
that the interest is not so substantial as to be deemed likely to
affect the integrity of the services which the Commonwealth may
expect from you.


3. Section 23


Two provisions in G.L. c. 268A, s.23 are also relevant to your
question. First, s.23(c) prohibits a state employee from disclosing
confidential information which he has acquired in his state
position or from using such information to further his personal
interest. See, EC-COI-85-23.

Section 23(b) (2) prohibits a state employee from using or
attempting to use his official position to secure for himself or
others unwarranted privileges or exemptions of substantial value[6]
which are not properly available to similarly situated individuals.
To comply with this provision, you must keep your private traffic
analyst duties separate from your state agency work schedule and
not use state resources to assist you in your capacity as a local
television station's traffic analyst You must also avoid giving
preferential treatment to the local television station vis-a-vis
other television and radio stations who enter into agreements with
the state agency for your services as traffic reporter. See,
EC- COI-87-13
. Finally, you must avoid using your status as a state
agency police officer to gain access to information or to
individuals which would be unavailable to you as an employee of a
local television station.

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

[1] You also, at the direction of your agency, provide traffic
reports to a local radio station under the same stage name.

[2] So long as your private employment with the local television
station is not intended to compensste or reward your prior state
agency traffic reporter work and is intended to compensate you for
separate traffic analysis work you will do for the local television
station, s.9 of G.L c. 268A is not implicated despite the fact that
your private work would reflect the expertise you have acquired as
a state agency traffic reporter. S ee, EC-COI-81-154. Your proposed
salary is, as we understand it, comparable to what other similarly
situated individuals earn for these services.

[3] "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).

[4] "Participate," participate in agency action or in a particular
matter personally and substantially as a state, county or municipal
employee, through approval, disapproval, decision, recommendation,
the rendering of advice, investigation or otherwise. G.L. c. 268A,
s.1(j).

[5] "Immediate family," the employee and his spouse, and their
parents, children, brothers and sisters. G.L. c. 268A, s.1(e).

[6] An item of substantial value is anything valued at $50 or more.
See, Commonwealth v. Famigletti, 4 Mass. App.584 (1976).

End Of Decision