April 10, 2001

FACTS:

You are a member of the General Court. In addition to your
legislative duties, you have two different part-time contractual
arrangements with an educational institution of the Commonwealth
("College"). Under one agreement, you teach a course each semester
to College students. Under a second agreement, you serve as the
Coordinator of Evening Services (Coordinator) at the College. You
have indicated that these positions do not overlap. That is, you do
not teach your course at the same time as you are acting as
Coordinator.

Traditionally, the College has had a difficult time filling
the Coordinator's position. In the past, the College has assigned
College administrators and faculty to rotate and cover one day per
week. The College posted the position of Coordinator, you applied,
and were hired for the position. When classes are in session you
work three days a week in the early evening and Saturday mornings.
You describe your actual duties as follows. You make sure there is
appropriate staff on duty. You check to make sure that all the
equipment that the faculty may need that evening is in good working
order. You verify that classrooms are available, and, if there is
a problem, such as two professors assigned to the same room, you
find other teaching space. You are a resource to the faculty and
coordinate any problems or needs that the faculty may request. For
example, if audio-visual equipment is needed, you will arrange to
get it. On occasion you have also served as a teaching assistant.
Because you have extensive knowledge of the College computer
system, you fill in to register students at the beginning of the
semester. You also register students for the numerous community
service educational programs that the College offers throughout the
year. Finally, you provide assistance to students by directing them
to their classes, offering guidance regarding available College
services, and counseling students about courses.


QUESTION:


Does paragraph 5 of G.L. c. 268A, s.7, that allows state
employees to receive compensation for "teaching and other related
duties" in the state college system, permit you to receive
compensation from an educational institution of the Commonwealth
for employment as an adjunct faculty member and as the coordinator
of evening services?


ANSWER:


Yes. Paragraph 5 of G.L. c. 268A, s.7 will permit you to
receive compensation from an educational institution of the
Commonwealth for employment as an adjunct faculty member and will
also permit you to be compensated as the coordinator of evening
services because your coordinator duties are predominantly
associated with the instructional function of the College, and
therefore, "related" to teaching.



DISCUSSION:


G.L. c. 268A, s.7 prohibits a state employee, including a
state legislator, from having a financial interest, directly or
indirectly, in a contract made by a state agency, unless an
exemption applies. Paragraph 5 of s.7 states:

This section [s.7] shall not prohibit a state employee
from teaching or performing other related duties in an
educational institution of the commonwealth; provided, that
such employee does not participate in, or have official
responsibility for, the financial management of such
educational institution; and provided, further, that such
employee is so employed on a part-time basis. Such employee
may be compensated for such services, notwithstanding the
provisions of section twentyone of chapter thirty. (emphasis
added) ("teaching exemption").

Clearly, the plain meaning of the statutory language will
permit you to receive compensation for teaching your government
course. However, an issue is raised of whether your Coordinator
duties are "other related duties" as contemplated by the statutory
exemption so that you may receive compensation for these duties.

When analyzing statutory language, the "language itself is the
principal source of insight into the legislative purpose."[1] The
common dictionary meaning of the term "related" is "having
relationship: connected by reason of an established or discoverable
relation (such as painting and the arts) . . . ."[2] In using the
term "related," the Legislature employed language that evidences an
intent to include activities in addition to and related to
teaching, but the Legislature did not further define the parameters
of the exemption. Thus, the Commission has the power to give the
phrase a workable meaning.[3] In interpreting the parameters of a
general classification created by the Legislature, it is helpful
for us to review prior legislative history and Commission rulings
to consider "conditions existing at the time of enactment" and the
"objectives the law seeks to fulfil."[4]

The "teaching exemption" was enacted in 1980 in response to
Attorney General and Ethics Commission rulings. Prior to 1980, both
the Attorney General and the Ethics Commission interpreted s.7 to
prohibit a state employee from entering a part-time teaching
contract with a state educational institution.[5] In reaction to
these opinions, legislation was proposed to add an exemption
concerning teaching to G.L. c. 268A, s.7. This legislation was
strongly supported by the Commonwealth's higher educational
institutions and the Department of Education. According to the
educational institutions, s.7, as written and interpreted, unduly
restrained the institutions from obtaining quality faculty for
evening continuing education courses and from permitting day
faculty to also teach in the evening division.[6]

St. 1980 c. 303 amended G.L. c. 268A, s.7, stating:

this section [s.7] shall not prohibit a state employee from
teaching in an educational institution of the commonwealth;
provided, that such employee does not participate in, or have
official responsibility for, the financial management of such
educational institution; and provided, further, that such
employee is so employed on a part-time basis. Such employee
may be compensated for such services, notwithstanding the
provisions of section twenty-one of chapter thirty.

Following enactment of this amendment, the Ethics Commission
advised state employees that they were permitted to have part-time
teaching arrangements with state colleges. But, in one opinion,
EC-COI-82-158, the Commission declined to interpret the word
"teaching" to include activities other than actual instruction. In
EC-COI-82-158, a state college faculty member was interested in
teaching part-time in the graduate and continuing education
division of the college, as well as working on the division catalog
issued each semester. The Commission advised the state employee
that he could accept the teaching assignment but could not be paid
to work on the catalog.[7]

In 1990, a bill was submitted to the Legislature seeking to
amend the teaching exemption, by adding the phrase "or performing
other related duties." This amendment was passed, becoming St. 1990
c. 487. Governor Dukakis, in a letter to the Secretary of the
Commonwealth, declared the act to be an emergency act and indicated
in his letter that the act was to "enable teachers to perform
related duties (such as part-time coaching and teaching).

In the only formal opinion issued by the Commission following
enactment of this amendment, the Ethics Commission was asked
whether a state college professor could be compensated in a
separate college position as track coach.[8] The Commission,
relying on the Governor's letter discussed above, concluded that
the teaching exemption would permit the professor's second
contractual arrangement with the college as a coach. Additionally,
while noting that the Commission expressed no opinion on the merits
of St. 1990, c. 487, the Commission provided the following guidance
concerning how it would interpret the parameters of the exemption.

With respect to the type of services implicated by the amended
exemption, we conclude that, while the General Court intended
more flexibility than under the original 1980 amendment, the
permissible services are not unlimited and must be directly
related to the content of instruction and how that content is
taught. Thus, services related to the development of
curriculum, the selection and evaluation of teachers, course
scheduling, and the advising of students in connection with
courses would fall within the statutory exemption. On the
other hand, purely administrative or custodial functions such
as record-keeping, facility management, financial and
budgetary services and personnel administration, while
indirectly supporting the ultimate educational objectives of
the institution, do not have a sufficiently direct
relationship to instruction and therefore do not qualify under
the amended exemption. In construing this exemption, we note
our customary reluctance to expand unduly language contained
in statutory exemptions to G.L. c. 268A.[9]

Thus, the 1990 legislative amendment evidences an intent to
permit state employees, including elected state officials, to be
compensated for providing some services to state educational
institutions, other than classroom teaching. Further, the
Legislature limited the expansive language, by keeping two limiting
requirements: (1) only part-time work is permitted and; (2) those
individuals, who in their primary employment, are involved in the
financial management of the educational institution are not
eligible to use the exemption. Presumably, the latter requirement
reflects a legislative concern that the top administrative and
managerial employees at the educational institution can not use
their positions to obtain an "inside track" on additional
positions.

The Commission has not, since 1991, taken formal opportunity
to review the teaching exemption 11. EC-COI-91-7, issued shortly
after the enactment of the amendment, the Commission alerted state
employees that it would require the proposed activity to be closely
connected to actual teaching and/or curriculum activities I order
to be covered by the exemption. In that case, base on a reading of
the legislative history, the Commission permitted an
extracurricular activity, namely coaching sport, to be covered by
the exemption. We continue t believe that, to benefit from the
"teaching exemption, the proposed compensated activities should be
associate with the teaching component of the state college. If the
proposed duties include both administrative and instructional
responsibilities, we conclude that the "teaching ex emption" will
be applicable if the duties predominantly support the instructional
function of the college.

Turning to a review of your coordinator responsibilities, your
contractual duties include both teaching an administrative
obligations. For the following reasons w conclude that your
coordinator arrangement is permissible under the teaching
exemption. First, your duties do not implicate the two limiting
requirements in the exemption. Your coordinator duties are
part-time and, as a legislator, you do not participate in the
financial management of the institution. The majority of your
coordinator duties are directly supportive of the classroom
teaching and ar necessary faculty support. Additionally, at the
College the coordinator duties have, in the past, been a share
faculty/administration responsibility. Some of your duties are
tasks in which faculty would traditionally be involved For example,
teachers generally advise students about course offerings, provide
guidance about College services and monitor students as they go to
classes. These obligations are supportive of the instructional
function at the College. Given the legislative intent to include
activities other than direct teaching, and the expansive language
used by the Legislature, your coordinator duties at the College are
predominantly associated with teaching and therefore, are "other
related duties" for the purpose o the law.


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

[1] Leary v Contributory Retirement Appeal Board, 421 Mass.
344, 345 (1995).

[2] Webster's Third International Dictionary; see also
American Heritage Dictionary ("connected; associated").

[3] See e.g., Life Insurance Assoc. of Massachusetts v. State
Ethics Commission
, 431 Mass. 1002, 1003 (2000).

[4] Int'l Org. of Masters, etc, v. Woods Hole, Martha's
Vineyard & Nantucket Steamship Authority
, 392 Mass. 811, 813
(1984).

[5] EC-COI-79-9; Attorney General Conflict Opinion No. 844.

[6] See Memorandum of Corinne Martin, dated June 13, 1980 a
(Executive Office of Educational Affairs) to the Governor's Office.

[7] Id.

[8] EC-COI-91-7.

[9] Id.


End of Opinion