November 9, 1982

 

FACTS:

You are presently a member of the undergraduate faculty at a state college, ABC.  Prior to September 1, 1982, you were part of the ABC administration serving as the Director of a department in the college. You are interested in accepting a part-time teaching assignment conducting a workshop for the Division of Graduate and Continuing Education (Division) at ABC.  You would also like to work on the catalog for the Division that is issued each semester.

 

QUESTION:

May you teach the workshop and work on the catalog for the Division?

 

ANSWER:

You may teach the workshop, but you may not work on the catalog.

 

DISCUSSION:

As a faculty member of ABC  you are a state employee as that term is defined in G.L. c. 268A, §l (q). Section 7 prohibits a state employee from having a direct or indirect financial interest in a contract made by a state agency in which the Commonwealth or a state agency is an interested party.  However, an exemption to §7 allows a state employee to teach, part-time, in an educational institution of the Commonwealth as long as the employee does not participate 1/ in or have official responsibility for2/ the financial management of the educational institution. Based on the information you have provided, as long as you do not participate in, or have official responsibility for, the financial management at ABC, you may conduct the workshop for the Division. See, EC-COI-82-86, 82-65. However, should you return to your former position as a department head or some other comparable position where you would necessarily participate in ABC's financial management, the teaching exemption would no longer apply.

Section 7 also applies to your inquiry regarding whether you may work on the Division's catalog. The provisions of §7 would prohibit you from contracting with the Division to work on the catalog since to do so would give you a financial interest in a contract made by a state agency, SSC, in violation of this section. See, EC-COI-82-41, 82-29, 82-12. However, there are two relevant exemptions to §7 which apply to those individuals who are "special state employees" as defined in §1(0).3/   Under the of §7(d), you are prohibited from having such an interest only where you participate in or have official responsibility for any of the activities of the contracting agency, provided that you must file, with the Commission, a statement making full disclosure of your interest in any state contract.  Alternatively, even if you do participate in or have official responsibility for the activities of the contracting agency, you may maintain your financial interest in a state contract under §7(e) if you file the above disclosure statement with the Commission and the Governor, with the advice and consent of the Executive Council, exempts you from this section.

Since your contract to work on the catalog would be with ABC the same agency for whom you already work, the §7{d) exemption, is not available to you. As an ABC   faculty member you participate in the activities of the contracting agency.  Therefore, you will have to obtain an exemption from the Governor and the Executive Council under §7(e) in order to receive compensation for your work on the catalog.

Date Authorized: November 9, 1982

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1/For the purposes of G.L. c. 268A, "participate" is defined as participate in agency action or in a particular matter personally and substantially as a state … employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, §l (j).

2/For the purposes of G.L. c. 268A, "official responsibility," is defined as the direct administrative or operating authority whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action.    G.L. c. 268A, §l(i).

3/For the purposes of G.L. c. 268A, "special state employee" means a state employee...(2) who is not an elected official and (a) occupies a position which, by its classification in the state agency involved or by the terms of the contract or conditions of employment, permits personal or private employment during normal working hours, or (b) in fact does not earn compensation as a state employee for an aggregate of more than eight hundred hours during the preceding three hundred and sixty-five days.    For this purpose compensation by the day shall be considered as equivalent to compensation for seven hours per day.    A special state employee shall be in such status on days for which he is not compensated as well as on days on which he earns compensation.  G.L. c. 268A, §l (o).  In view of your status as an ABC faculty member, you would be a special state employee.   See, EC-COI-81-64.