June 30, 1987

FACTS:


You are employed by state agency ABC. You have been requested
by a member of the Board of Bar Examiners to serve as a
reader/grader of bar examinations of the applicants for admission
to practice law in Massachusetts. Your employer, state agency ABC,
does not regulate any activities of the Board of Bar Examiners. In
your ABC capacity, you neither participate in nor have any official
responsibility for the activities of the Board of Bar Examiners.
The services that you have been requested to perform would be
provided outside of the normal working hours of the Trial Court,
are not required as part of your regular duties for the Trial
Court, and would be completed in substantially less than 500 hours
in any calendar year.

There is no public notice of the opportuniry to serve as
reader/grader of bar examinations. The process by which an attorney
becomes a reader/grader is entirely by "word of mouth." There is
no formal procedure or application process for the selection of
reader/grader. The only qualification is that you be an attorney
at law. As a matter of policy the Board of Bar Examiners will not
hire a reader/grader who is also a state employee, so as not to
cause any appearance of conflict, unless the potential
reader/grader has a written opinion from the State Ethics
Commission authorizing such employment.


QUESTION:


Does G.L. c. 268A permit you to receive compensa-

Page 158

tion for your service as a reader/grader of bar examinations?


ANSWER:

No.

DISCUSSION:


The Commission concludes that your receipt of compensation from
the Board of Bar Examiners will give you a financial interest in
a contract made by the Board, and that you do not qualify for an
exemption permitting such an interest because the process of
appointment is not sufficiently open to satisfy the public notice
requirement. G.L. c. 268A, s.7(b).

A state employee may not have 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, G.L. c.
268A, s.7, unless an exemption applies. The general rule is that,
absent such an exemption, when a state employee is appointed by
another state agency such as the Board of Bar Examiners, and
performs services for that agency and receives compensation, the
employee violates s.7. Prior to 1983, for all practical purposes,
full-time state employees, like yourself, were prohibited by s.7
from financial interests in other state contracts. See, EC-COI-80-
117
. In 1982, the General Court established an exemption, s.7(b),
which allows in a limited way, certain full-time state employees
to have a financial interest in state contracts. Several statutory
conditions, which were designed as safeguards against potential
insider influence, include a requirement that the contract be "made
after public notice or where applicable, through competitive
bidding."

The term "public notice" is not defined in the conflict of
interest law. As the agency authorized to enforce and administer
that law, the Ethics Commission possesses the authority to
interpret it. Grocery Manufacturers of America, Inc. v. Department
of Public Health
, 379 Mass. 70, 75(1979). Such an interpretation
must keep in mind the "cardinal rule" that exemptions from general
statutory provisions are to be strictly construed. Department of
Environmental Quality Engineering v. Town of Hingham
, 15 Mass. App.
Ct. 409, 412 (1983). In this case, any such interpretation of
"public notice" must also take into account the pairing of the term
in the statute with "competitive bidding" and the stated purpose
of the drafter that "the general public [have] equal access to the
contract through notice ... "[1] Generally, s.7 is designed to
eliminate the public impression that state employees have an
"inside track" for the opportunity to compete for state jobs or
contracts. Where applicable, the mechanics of the competitive
bidding process are sufficient to meet that goal. Such competition
is not appropriate in many personal service employment
arrangements. Therefore, a process other than competitive bidding,
but addressing the concerns satisfied by that mechanism, must be
adopted. Both the public notice and the competitive bidding process
must meet the goal of facilitating public access to state contracts
which the s.7(b) exemption was intended to achieve.

The Commission has had occasion to define public notice in the
context of specific factual situations. The Commission has been
flexible in the kind of advertising necessary for a s.7(b)
exemption; for example, by permitting advertising in trade or
professional journals designed to be circulated to all eligible
appointees within a geographic area. See, EC-COI-83-97. The
Commission's policy of departing from a hard and fast requirement
that advertising be in a newspaper of general circulation is based
on the common-sense notion that targeted advertising in trade or
professional journals is more likely to reach the field of
potential eligible candidates than is an advertisement in a
newspaper of general circulation. Similarly, the Commission has
concluded that a "process based primarily on word-of-mouth between
a state agency and potential eligible employees does not possess
sufficient vestiges of openness to satisfy the public notice
requirement. See, EC-COI-83-95. In EC-COI-85-7, the Governor was
looking for a representative of the public on a seven member board.
The Governor did not publicize the current public member vacancy
in a newspaper or other periodical of general circulation. The
search was limited to a word-of-mouth request to three institutions
seeking resumes from qualified women and minorities interested in
health care issues. The Commission concluded that this was not
"public notice" within the meaning of s.7(b).

In the circumstances of this case, publication in a professional
periodical such as the Massachusetts Lawyers Weekly would appear
to be the minimum requirement to satisfy the public notice
requirement of s.7(b).

The Commission will not waive the public notice requirement upon
a theory that public advertising would be impractical or not
effective. There is no language in s.7(b) which exempts public
agencies from the public notice requirement for "good cause." If
such an exemption were intended by the General Court, it could have
so explicitly stated, See, e.g., Federal Administrative Procedures
Act, s.553(b)(B), which explicitly permits deviation from public
notice if "impractical."[2] It is not for the Commission to waive
the public notice require. mentor broaden its scope by
interpretation. Any such change in law or policy must emanate from
the General Court.

In conclusion, equal access to the opportunity to be appointed
to serve as reader/grader for bar examinations has not been
provided to the members of the Bar. The Commission cannot waive a
requirement which is

Page 159

explicitly mandated by the General Court. Therefore, the Commission
concludes that your situation is indistinguishable from EC-COI-85-
7 and that you may not be a paid reader/grader for Bar examinations
under the present circumstances.

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

[1] Summary statement accompanying House 1235, p. 10(1982).

[2] This exemption from public notice requirements if "impractical"
or for "good cause" is viewed narrowly by the courts and, indeed,
it is not infrequent that an administrative agency's interpretation
of circumstances under which public notice will be "impractical"
will be overturned by a court of law. See, Independent Brokers
Realtors, Trade Associations v. F.E.C.,
442 F. 2nd 132 (D.C. Cir.
1971).

End Of Decision