January 26, 1993

FACTS:

You are a full-time Agent (Agent) in the Investigative Unit
of the Division of Registration. In addition, you are a
registered pharmacist. You are assigned matters involving
individuals and facilities regulated by the Pharmacy Board of
Registration (Board). As an Agent, you initiate and receive
complaints concerning registered pharmacists in addition to
nurses, dentists, nurse practitioners, respiratory therapists and
veterinarians. You also conduct inspections of controlled
premises, including retail pharmacies, chain pharmacies,
institutional pharmacies, clinics and wholesale pharmacies. You
sometimes coordinate investigations in conjunction with the
Massachusetts State Police and the federal Drug Enforcement
Agency.

Regulations promulgated by the Board provide standards of
conduct as well as various procedures concerning records keeping
and the filling of prescriptions by pharmacists. 247 CMR 3.00 et
seq. Pharmacies are subject to inspection on a regular basis to
assure compliance with these regulations. Specifically, with
regard to records keeping detailing the refilling of
prescriptions, state inspectors confirm only the existence of
daily logs as required by Massachusetts regulation. Any
examination of the content of the logs would occur on the federal
level in the nature of a Drug Enforcement Agency audit.
Additionally, records or other data required to be submitted to
other state agencies such as the Department of Public Welfare
(for Medicaid billing purposes) or to the Department of Public
Health (for monitoring the prescription writing habits of
physicians or other practitioners) would not be the
responsibility of the dispensing physician, but rather would be
handled by the pharmacy owner or other administrators.

You are contemplating working on a part-time basis for a
pharmacy which is subject to regulation by the Board. You would
not, however, be the "principal" registered pharmacist for the
pharmacy. As a part-time dispensing pharmacist, it is therefore
unlikely that you would have dealings with the Board or any other
agency of the Commonwealth.


QUESTION:


May you be employed as a registered pharmacist outside of
your normal state working hours in a pharmacy regulated by the
Board?


ANSWER:


Yes, subject to the limitations set forth below.


DISCUSSION:


As a full-time Agent of the Division, you are a state
employee for purposes of the conflict of interest law. G.L. c.
268A, s. 1(q).


Section 4


Section 4(a) prohibits a state employee from receiving
compensation from anyone other than the Commonwealth in relation
to a particular matter [1] in

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which the Commonwealth or one of its agencies is a party or has a
direct and substantial interest.

Although pharmacies are owned by private entities, the
operation of a retail pharmacy is nevertheless regulated by the
Board. G.L. c. 112, s. 37. By statute, a retail drug business
must obtain a permit or license to operate from the Board. The
Commonwealth therefore has a direct and substantial interest in
the application for and issuance of an operation permit, a
"particular matter" under the conflict of interest law. G.L. c.
268A, s. 1(k). The issue, therefore, is whether the compensation
you receive as a part-time pharmacist would be "in relation to"
the permit or license to operate.

In EC-COI-87-31, n.7, the Commission first recognized
that certain work done pursuant to a permit may not be considered
"in relation to" that permit for purposes of applying the
conflict of interest law. The Commission in that case stated:

For example, a municipal employee, who is one of many
privately paid employees or independent contractors on a
major construction project, and who has no responsibility
for dealing with the town on any matter, might not be
considered to be privately compensated "in relation to" the
permit which allows the construction.

More recently in EC-COI-92-1 the Commission again noted that "not
all work pursuant to such permits [city building permits] is `in
relation to' the permit." See also EC-COI-92-40.

The Commission has previously distinguished between cases
where a public employee would be part of a privately paid crew
and those instances where the public employee is doing all of the
work pursuant to a permit himself. Where the public employee is
presumably the person who will have to interact with public
officials, the Commission has been more likely to find that the
privately paid for work is in connection with the permit, i.e.
the particular matter in which a public agency will have a direct
and substantial interest. See EC-COI-88-9 (carpentry work would
be completed by public employee himself rather than by him as
part of a crew, therefore work would be done pursuant to the
building permit).


In addition, in EC-COI-90-13 we recognized that where an
agency exercises substantial regulatory authority and oversight
of an activity, the Commonwealth may have a direct and
substantial interest in the activity. However, regulatory
authority and oversight of an activity alone are not sufficient
to find a particular matter in which the Commonwealth has a
direct and substantial interest. Rather we must determine whether
the regulated activity itself involves a "particular matter" (as
defined by the conflict of interest law) in which the employee is
likely to become involved [2] -- such as the submission of
reports for approval; a submission to a state agency is a
particular matter in which the Commonwealth has a direct and
substantial interest. The Commission has previously held that
regulations, in and of themselves, are not particular matters.
EC-COI-81-34.

Applying this precedent to your circumstances, we find that
the compensation you will receive in your contemplated private
employment is not "in relation to" the permit to engage in the
retail sale of drugs. We so conclude because you will serve as
one of several registered pharmacists employed by the private
pharmacy, and you yourself are unlikely to have responsibility
for dealing with the Board or another state agency on any matters
concerning the retail sale of drugs. The compensation for your
services would not therefore be in relation to the pharmacy's
operating permit. We note nevertheless, that should you discover
that you are required to deal with state agencies as a part-time
pharmacist, the s. 4 restriction will prohibit your proposed
employment.

Additionally, while we recognize that the Board's
regulations require various procedures for the dispensing of
drugs and related records keeping, this does not, without more,
result in our finding that the compensation of an individual
pharmacist is "in relation to" a particular matter in which the
Commonwealth has a direct and substantial interest. Because
regulations are not in and of themselves particular matters,
regulatory compliance alone will not raise an issue under s.
4(a). See EC-COI-87-34 (under s. 5, former state employee could
receive private compensation in case involving interpretation or
application of regulation in which he had previously participated
in drafting as a state employee; absent a challenge to the
validity of the regulation, private compensation not "in
connection with" the promulgation of the regulation); 81-162; 81-
34
.

We might, however, find that certain of your required tasks
as a registered pharmacist involve particular matters in which
the Commonwealth has a direct and substantial interest were you,
yourself responsible for reporting information or otherwise
making submissions to the state. Again, should you find yourself
responsible for making such submissions to the state, s. 4 will
prohibit your proposed employment.

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In summary, we conclude that your activities as a privately
compensated registered pharmacist will not be in connection to
the private pharmacy's operating permit if you will not be
serving as the principal pharmacist and will not have dealings
directly with the Board or any other agency of the Commonwealth.
In addition, your proposed activities as a part-time (assistant)
pharmacist, although prescribed by regulation, would not
themselves involve particular matters in which the Commonwealth
or one of its agencies has a direct and substantial interest.
Under these circumstances, your proposed private compensation
will not therefore violate s. 4(a) [3].


Section 6


Section 6 provides that a state employee may not participate
as such in any particular matter in which, among others, his
private employer, or any person with whom he is negotiating or
has any arrangement for prospective employment, has a financial
interest. If a state employee's duties would normally require him
to participate in such a matter, he must in writing advise his
appointing authority and the Ethics Commission of the nature and
circumstances of the particular matter and the financial
interests involved. The appointing authority must thereafter
assign the matter to another employee, assume responsibility for
the matter himself or make 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 the employee. A copy of such a determination must be filed
with the Ethics Commission.

The Commission has previously held that a pharmacy has a
financial interest in Board inspections and investigations of
pharmacies with which it is in geographic competition. EC-COI-82-
95
. Therefore, the s. 6 restrictions will apply to you with
regard to inspections or investigations of the pharmacy by which
you are privately employed or of any of the geographic
competitors of that pharmacy. Therefore, before inspecting or
investigating your pharmacy or any such competitive pharmacy, you
must disclose the financial interest of your private employer in
that matter to your appointing authority and the Ethics
Commission and then your appointing authority must comply with
the requirements of s. 6. Your appointing authority should
determine which retail pharmacies are the geographic competitors
of the pharmacy by which you seek to be employed. See EC-COI-86-
13
.

Section 23


Section 23 imposes standards of conduct applicable to all
public employees. Specifically, s. 23(b)(2) prohibits a state
employee from using or attempting to use his official position to
secure unwarranted privileges or exemptions for himself or for
others.

In applying s. 23 to your facts, you may not use your state
position to secure any unwarranted privileges for yourself or for
others. For example, you could not use your relationship with
other agents to seek to influence the outcome of an inspection or
investigation of the pharmacy by which you are employed. In
addition, pursuant to s. 23(c), you may not disclose any
confidential information to which you may have access as a state
employee. Confidential information is information which is not
available to the public in a "public record" as defined by G.L.
c. 4, s. 7(26) [4].


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


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

[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).

[2] We recognize that a literal reading of s. 4(a) provides
a prohibition against receiving compensation "in relation to,"
rather than compensation which is "likely" to be in relation to a
particular matter in which the Commonwealth has a direct and
substantial interest. We nevertheless are satisfied that in
interpreting and applying the "in relation to" statutory
requirement, it is appropriate to examine whether a state
employee, in his private employment, is "likely" to have dealings
with a state regulator or agency in a particular matter on behalf
of a private party. The underlying principle behind s. 4 is that
"public officials . . . should not in general be permitted to
step out of their official roles to assist private entities or
person in their dealings with government." Buss, The
Massachusetts Conflict of Interest Statute: An Analysis
, 45
B.U.L.Rev. 322, n.135 (1965) citing Perkins, The New Federal
Conflict of Interest Law
, 76 Harvard L.Rev. 1120 (1963). In
seeking to effectuate this statutory purpose, we find it useful
to determine the likelihood that a public employee will be placed
in a position where the employee will have an opportunity to have
dealings with government officials on behalf of a private party.
Where we find such a likelihood, we will apply the restrictions
of s. 4.

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[3] We note that s. 4(c) prohibits you from acting as agent
for anyone other than the Commonwealth in connection with a
particular matter in which the Commonwealth or one of its
agencies is a party or has a direct and substantial interest. It
appears unlikely, however, in light of the duties of a part-time
pharmacist and the s. 4(a) restriction, that you will have any
contact with a state agency as agent for the pharmacy by which
you will be employed. Moreover, submissions made by the pharmacy
to the Department of Public Welfare and the Department of Public
Health do not contain the names of the dispensing pharmacists
among the data required to be reported. We caution you, however,
that you may not act as agent for the pharmacy before any non-
state entity as well (such as at a press conference or before a
federal agency) in connection with matters in which the
Commonwealth is a party or has a direct and substantial interest.

[4] Section 23(e) provides that the head of a state agency
may establish and enforce additional standards of conduct. You
should therefore consult with your agency before beginning your
proposed private employment to ascertain whether the agency has
adopted any such additional standards.

End Of Decision