July 16, 2010

 

All identifying information has been deleted from this opinion as required by Chapter 268B, § 3(g).

 

QUESTION: 

 

Does the conflict of interest law permit an investigator/inspector for the Division of Professional Licensure (“DPL”), who is not involved in creating, evaluating, or administering examinations by the Board of State Examiners of Plumbers and Gas Fitters (“Board”) and has no role in the Board’s policies, approvals or audits of education programs, to be paid by a private school or by another non-state educational program provider[1] to teach plumbing and gas fitting courses required for state licensure during his time off from his state position?

 

ANSWER:

 

The conflict of interest law does not prohibit a DPL investigator/inspector, who is not involved in creating, evaluating, or administering examinations by the Board and has no role in the Board’s policies, approvals or audits of education programs, from, during his time off from his state position and in his private capacity, engaging in private or other non-state plumbing and gas fitting course teaching activities for private or other non-state compensation, provided that those teaching activities are limited exclusively to actual teaching of course subject matter and do not include curriculum development, student evaluation, testing, grading, attendance keeping or reporting, or any other activity relating to the process of initial or ongoing state licensing.

 

FACTS:

 

You are a licensed master plumber and gasfitter employed as an investigator/inspector by the DPL in its Office of Investigations.  As such, you have two areas of responsibility: First, investigating complaints against licensed plumbers and gas fitters or unlicensed persons engaging in plumbing and gas fitting work; and, second, conducting permit inspections of all plumbing and gas fitting work performed by or under contract to a state agency or entity on state-owned, leased or occupied buildings.  

In your DPL position, you are not involved in the state licensing of plumbers and gas fitters. You are not involved in the evaluation of education or experience requirements for applicants for examination and licensure by the Board. You are also not involved in creating, evaluating, or administering examinations by the Board and have no role in the policies, approvals or audits of continuing education programs.

You would like, during your off hours from your DPL position, to teach plumbing and gas fitting courses to students at a private school who are completing the primary education hours needed to qualify for admission to the Board examination for either a journeyman or master plumbing or gas fitting license. The courses, which are part of an educational program certified by the Board, are taken to fulfill the Board’s requirement, in order to qualify for examination, for specified numbers of “clock hours of plumbing and gasfitting theory,” [2] which the Board requires to be divided into five year-long “tiers” of 110 clock hours each covering Board-specified subject areas and which must be completed in order.  (Students must pass a school or instructor designed examination for each tier before progressing to the next.)[3]  The Board has also specified the particular subject matter to be covered in each of five to twelve lessons in each tier, further determining the subjects to be taught and the order of their presentation.

In addition, or alternatively, you would like, also during your time off from your DPL position, to teach, at a private school or other non-state educational program provider, continuing education courses which licensed journeyman and master plumbers and gas fitters are required to take in order to renew their licenses. Mandatory continuing education (“MCE”) courses for plumbers and gas fitters may only be provided by Board-approved schools and programs which have applied for and entered into a Provider Agreement with the Board, pursuant to which a detailed outline and lesson plan of each course offered and the name and license number of all course instructors is provided annually to the Board together with proof of an indemnification bond and liability insurance satisfactory to the Board. MCE instructors may only use course materials which have been approved by the Board, and the materials must contain a Board-specified statement of that approval.  MCE instructors may teach no less than three and no more than six hours per day to classes no larger than 49 students.  MCE providers are required to report class attendance to the Board and to issue certificates of completion, including the course subject matter and clock hours and the instructor’s name, license number and signature signed under the penalties of perjury.[4]  

For both your proposed pre-licensing course teaching and your proposed MCE course teaching, you would be compensated by the private school or other non-state course provider for which you will perform your teaching and not by the Commonwealth or a state agency. [5]  

 

DISCUSSION:

 

As a state employee, you are subject to § 4 of G. L. c. 268A which, in relevant part, prohibits a state employee from being compensated by or acting as agent for anyone other than the Commonwealth or a state agency in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest.[6] The purpose of § 4 is to avoid the creation of divided loyalties which could cause a state employee to compromise the public interest out of his loyalty or obligation to his non-state employer or principal.

Prior Commission advisory opinions have considered potential § 4 issues in the context of a public employee who wanted to teach privately and be paid for so doing.  In EC-COI-82-176, the Commission was asked whether a Registry of Motor Vehicles inspector would violate § 4 by teaching a driver education class, and concluded that he would not because his compensation as a private teacher would not be “in connection with” the state-required driver examination.  In EC-COI-85-16, the Commission was asked whether an assistant district attorney could, consistent with § 4, form a non-profit corporation to sponsor educational conferences and training courses for law enforcement personnel.  The Commission stated that he could because the corporation’s program was not of direct and substantial interest to the state because it was for the enrichment of attendees, a supplement to other required training and “did not rise to the level of formalized training.”  The Commission, however, further stated that “if the course offered by the corporation became mandatory for state law enforcement personnel, then it would be of direct and substantial [interest] to the state.”

The courses that you wish to teach are mandatory for those seeking to gain or retain state plumbing or gas fitting licenses and are of direct and substantial interest to the Board which has required, delineated and, as to the MCE cases, approved them.  Thus, the answer to the question of whether you may for non-state compensation[7] teach Board-required plumbing or gas fitting courses for a private school or another non-state course provider turns on whether the mandatory courses are also particular matters within the meaning of § 4. 

The Commission in EC-COI-85-16 did not address the question of whether and, if so, under what circumstances, a mandatory course is itself a “particular matter” for § 4 purposes.  Here, we determine that the individual plumbing and gas fitting courses which are offered by private schools and non-state course providers to students seeking to meet the requirements for initial and continued licensing are not, in and of themselves, particular matters as that term is used in § 4 of G. L. c. 268A, for the following reasons. 

The state licensing of a plumber or gas fitter, including the determination that the plumber or gas fitter has satisfied all requirements, including the requisite number of clock hours of plumbing and gas fitting theory courses to qualify for examination for such licensing, is a particular matter in which the Board, the DPL and the Commonwealth are parties and have a direct and substantial interest.  By comparison, the individual courses in required subject areas which plumbers and gas fitters must successfully complete in order to be eligible for admission to the licensing examination or to renew or continue their state licensing, while of direct and substantial interest to the Board, are not, in and of themselves, “particular matters.”  

As defined in G. L. c. 268A, §1(k), the term “particular matter” means and includes, with certain exclusions not here relevant, “any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination [or] finding.”  Thus, although the plumbing and gas fitting courses are of direct and substantial interest to the Board, which requires them and determines their subject area and content, they do not fall within the definition of a particular matter, as a course is not a judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination or finding.  By contrast, the determinations that particular students attended and passed a required course, or completed a required number of hours of education in a required subject area, and the recording and reporting of that information in connection with the licensing of the students are particular matters of direct and substantial interest to the Commonwealth.

Accordingly, some teacher or instructor activities when conducted on behalf of, or for compensation from, a private school or other non-state course provider raise issues under § 4 and some do not. This is because not all teacher or instructor activities relate to the state licensing process; many, if not most, relate instead to the imparting of technical skills and knowledge from teacher to student by the teaching of the subject matter of courses. Teacher activities which relate to the state licensing process raise conflict of interest law issues, and those which relate solely to the imparting of technical skills or knowledge by teaching the subject matter of courses, even required courses or courses in required subject areas, do not. 

Therefore, under § 4, you may not for private or other non-state compensation, or on behalf of a private school or other non-state course provider, engage in teacher or instructor activities which relate to the state plumber or gas fitter licensing process, as distinct from those teacher or instructor activities which consist solely of teaching course subject matter or content.  Thus, under § 4, for example, you may not, as part of your paid non-state teaching activities or on behalf of or as agent for your non-state employer, record, certify or report class attendance or hours; you may not evaluate, test, examine or otherwise determine the competence of students; and you may not assist in the creation of examinations or other tests of student competence; nor may you determine or assist in determining the curriculum or syllabus for any course.  You further may not, as part of your paid non-state teaching activities or on behalf of or as agent for your non-state employer, make or assist in making any report or certification to any state agency concerning students or your non-state teaching activities.[8]

By contrast, § 4 will not prohibit you from, during your time off from your DPL position and in your private capacity,[9] teaching or instructing the technical skills and knowledge, including knowledge of plumbing and gas fitting theory and applicable state codes, which must be mastered in order to become a competent plumber or gas fitter and to qualify for initial or ongoing state licensing.  Nor will § 4 prohibit you from receiving private or other non-state compensation provided exclusively for that actual subject matter teaching.[10]

 

CONCLUSION:

 

For the above-stated reasons, we conclude that the conflict of interest law, G. L. c. 268A, does not prohibit a state DPL investigator/inspector, who is not involved in creating, evaluating, or administering examinations by the Board and has no role in the Board’s policies, approvals or audits of education programs, from, on his time off from his DPL position and in his private capacity, engaging in private or other non-state teaching activities for private or other non-state compensation, provided that those teaching activities are limited exclusively to actual teaching of course subject matter and do not include curriculum development, student evaluation, testing, grading, attendance keeping or reporting, or any other activity relating to the process of initial or ongoing state licensing.[11]

 

DATE AUTHORIZED:   July 16, 2010



[1] “Non-state educational program provider” or “non-state course provider” refer to and include any educational program not operated by the Commonwealth or a state agency, including municipal or regional vocational or technical schools, association-sponsored programs, labor training programs, employer training programs or other private programs.

 

[2] 248 CMR 11.02.

 

[3] 248 CMR 11.06.

 

[4] 248 CMR 11.04 and 11.05.

 

[5] Previously, the Commission’s Legal Division informally advised you that § 4 of G. L. c. 268A would bar you from participating in these non-state paid teaching activities.  The informal opinion indicated, however, that the DPL might be able allow such teaching through a regulation.  The Board subsequently adopted  regulations regarding such teaching, 248 CMR 11.05(2)(f) and 11.06(2)(a)(4) which state, in relevant part, that a DPL employee may “when not on duty” serve as an instructor for a licensing education program or a continuing education course put on by a private or non-profit entity “so long as [the employee takes] no part in any Board function regarding policies, procedures, approvals, or other official actions which would create a conflict of interest pursuant to relevant public laws.”   The regulations, however, do not eliminate the § 4 concerns created by these teaching activities.  Under §4(a), a state employee may only receive compensation from a non-state source in connection with a particular matter involving the Commonwealth when the payment is “as provided by law for the proper discharge of official duties” (emphasis added), meaning where the non-state payment is authorized by law or regulation to be paid as compensation for the employee’s performance of his duties as a state employee.  The regulations instead authorize non-state compensated teaching by DPL employees “when not on duty,” making clear that the teaching being compensated for is not part of the DPL employees’ official duties and that, thus, the non-state compensation for such teaching is not “as provided by law for the proper discharge of official duties” within the meaning of § 4.  As a result, the regulations have no affect on the application of § 4 to your proposed private teaching activities.

 

[6] Section 4 more specifically prohibits a state employee from (a) “otherwise than as provided by law for the proper discharge of official duties” directly or indirectly requesting or receiving compensation from, or (b) “otherwise than in the proper discharge of official duties” acting as agent or attorney for anyone other than the Commonwealth or a state agency in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest. 

 

[7] “Non-state compensation” means and refers to pay or other compensation received from a source other than the Commonwealth or a state agency, including compensation received from a private school or a non-state course provider.

 

[8] It appears that the Board Regulations may require MCE instructors to perform some of the activities which § 4 prohibits you from performing.  If this is the case, you will be prohibited from acting as a MCE instructor at a private school or for any other non-state course provider.

 

[9] Section 23(b)(2) of G. L. c. 268A would prohibit you from using any state resources, including, for example, your DPL work time, your DPL title, or DPL office equipment in connection with your teaching for a private school or non-state course provider.

 

[10] If you do become a part-time teacher or instructor at a private school or other non-state course provider, you must be careful in your actions as a DPL employee to avoid violating §§ 6 and 23(b) in any dealings that you may have with your non-state employer or your students.  Thus, § 6 will generally prohibit you from participating as a DPL employee in any particular matter in which your private school or non-state course provider employer has a financial interest.  Under § 23(b)(3), you should make a written disclosure to your DPL appointing official before participating in any matter relating to a current or former student, such as, for example, the inspection of a former student’s plumbing or gas fitting work, and, under § 23(b)(2), you must act fairly and impartially should you participate in any such matter after making your disclosure.

 

[11] As a practical matter, the restrictions imposed by G. L. c. 268A, § 4, as described above, may significantly limit your opportunities to teach plumbing or gas fitting for a private school or other non-state course provider either because the Board Regulations require instructors to perform certain activities which § 4 prohibits you from performing or because potential employers will be unwilling to hire a teacher subject to the many restrictions imposed on you by § 4.