May 10, 1995

FACTS:

Pursuant to state law, certain state employees conduct tests
of persons who are applying for a certain state license. The tests
are generally conducted on Monday through Friday. These state
employees receive no additional compensation beyond their "straight
time" salary for these tests.

There is currently a backlog of tests. Additionally, a number
of private schools have requested that the state agency conduct
tests on Saturday mornings because of the great convenience to
their customers and themselves.[1] You state that the assignment
of additional state employees during the week could handle any
backlog, but the convenience of Saturday testing will always
remain a significant issue. The supervisor of the state employees
would like the state employees to conduct Saturday tests on "straight
time", however, the current union contract prohibits Saturday work
at "straight time" and requires overtime compensation at a rate of
time and one-half.[2] Neither the state agency that conducts the
test, nor the state agency that issues the licenses, has the funds
to pay for such overtime.

Recently, at the request of several private schools,
approximately 20 state employees have been conducting tests on
Saturday mornings. Each state employee has been assigned a
specific work period. The schools have paid the time and one-half
hourly rate by depositing it into an existing state agency fund
designated for this purpose. Each state employee is compensated
with a Commonwealth of Massachusetts check drawn from that account
(less appropriate payroll deductions). Each state employee
conducts about 12 tests in the four hour period. The school may
not select or request the specific state employee that will be
assigned on a particular Saturday. These state employees are
assigned by their agency from a list of personnel.

In general, pursuant to an article in the contract between the
state employees' union and the Commonwealth, such work periods
"shall be in accordance with" the terms of a certain agency
memorandum ("Memorandum"). Under the Memorandum, state employees
may perform work "involving the construction and/or maintenance or
repair of state highways and/or properties owned by the
Massachusetts Port and Turnpike Authorities" or "of any type
approved by the Executive Officer, or his designee." Such work may
be performed on days off; on holiday days off; during vacations; on
any day on which the state employee starts days off, holiday day
off, or vacation; "and at such other times as may be established by
agreement and announced by the [state agency]." The Memorandum
further provides that "[a]ll work will be distributed to members
fairly and equitably [from lists established in accordance with a
procedure set forth in the Memorandum] as to number of work
periods, type, hours and compensation thereof, and averaged on a
continuing monthly basis."

The method by which each school finances the additional costs
associated with this work is not standard. One method is for the
school to surcharge each student being tested nine dollars, which
is paid directly to the school. This additional cost is not paid
by persons taking tests given by the state employees during Monday
to Friday.

You and the administrative head of the state agency[3] have
approved Saturday testing period "as a short term measure",
provided that such testing periods are consistent with the
requirements of the Massachusetts conflict of interest law.[4] As
a long term remedy, the state agency's managers are negotiating
with their employees' union to find a way to assign state employees
to Saturday tests and to pay for such service on "straight time".



QUESTION:



Does G.L. c. 268A permit state employees to be paid for
working at private schools which may or may not charge their
students a surcharge in connection with that work?


ANSWER:


No, unless legal authority for such work is established
through statute or regulation.


DISCUSSION:


Except as "otherwise provided by law for the proper discharge
of official duties," s.4 of the conflict law prohibits a state
employee from being compensated, directly or indirectly, by anyone
other than the Commonwealth in relation to any particular

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matter[5] in which the Commonwealth or a state agency is a party or
has a direct and substantial interest. The rationale behind s.4
"is that public employees should be loyal to the state and, where
their loyalty to the state conflicts with their loyalty to a
private party or employer, the state's interest must win out." EC-
COI-82-176
.

In deciding the current question, we need not decide the
extent to which the proposed work periods, in general, are or are
not in relation to particular matters. Rather, it is enough that
state licensure of an individual or entity, as we have previously
found, is a particular matter of direct and substantial interest to
the Commonwealth. See, e.g., EC-COI-82-105 (description omitted);
80-95 (state has direct and substantial interest in decision to
grant a cable television license); see also EC-COI-79-6 (liquor
licensing is a matter of direct and substantial interest to the
municipality). Thus, unless such compensation is "otherwise
provided by law for the proper discharge of official duties," s.4
prohibits a state employee's receipt of compensation from a private
school (i.e., a non-state party) in connection with a state agency-
sponsored test. Compare EC-COI-82-176 (state employee, for private
compensation, may teach at school because his compensation is not
in relation to the test). That is, because there is the potential
that a state employee might feel beholden to the private school
that pays him at the expense of the state's interest in licensing
only qualified persons, express statutory authority for the private
payment is required.

Our examination of the facts reveals that nothing in the
General Laws or the state agency's enabling act authorizes these
work periods. Instead, such work hours are governed by the
collective bargaining agreement and a specific agency memorandum.
Although the agency's administrative head is authorized to make all
necessary rules and regulations for the performance of the duties
of the state's employees, including rules and regulations relating
to compensation of affected state employees [citation omitted],
these provisions do not, of themselves, amount to statutory
authority for work periods in connection with particular matters of
direct and substantial interest to the Commonwealth. See, e.g.,
EC-COI-92-4
n. 9 (the statute or regulation must specifically
authorize receipt of compensation from the non-state party); see
also EC-COI-89-5
. Thus, the privately paid work in question
violates s.4 of the conflict law.

In EC-COI-92-4, we recognized that the "as provided by law"
language in s.4 can be met by "a regulation duly promulgated by a
government agency authorized to do so." We also note that, at the
municipal level, there exists statutory authority for payment for
work similar to that at issue here. [citation omitted]

We think that enactment of a statute or promulgation of a
regulation pursuant to the General Laws, similar to the statute
governing municipal affairs, would satisfy the s.4 requirement.
However, because such authorization is presently lacking, a state
employee's receipt of compensation from a private school in
relation to a state agency-sponsored test violates s.4.


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


[1] Each location of each private school must be licensed to operate by the Commonwealth pursuant to statute. Such licenses
must be renewed annually.

[2] (statutory reference omitted)

[3] (footnote omitted)

[4] Saturday examinations have been suspended pending the
outcome of this opinion.

[5] "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).

Page 624

End Of Decision