April 18, 1991

 

FACTS:

Page 352


You are a state employee in state agency ABC. You seek
guidance concerning the application of G.L. c. 268A to employees
of ABC who will be furloughed for a period of at least five (5)
consecutive days during the remainder of the 1991 Fiscal Year.
Under St. 1991, c.6, s.90, and regulations of the Commissioner of
Administration, each state employee must select one of several
options which would either defer or eliminate altogether the
employee's entitlement to compensation for periods of up to three
(3) weeks. One particular option, Option 1, would permit an
employee to take a period of unpaid leave. During the leave period,
an employee will not perform services for particular days and will
not receive compensation for those days, but will receive continued
health insurance, sick leave benefits and retirement credit.
 


QUESTION:


1. Is an employee of the ABC who selects a furlough option
under which the employee does not perform services for one to three
consecutive weeks and does not receive compensation during that
period considered a "state employee"[1] under G.L. c. 268A during
the furlough period?

2. Assuming the answer to Question No. 1 is yes, what
restrictions will apply during the furlough period?[2]
 


ANSWERS:

1. Yes.

Page 353

2. The employee will be subject to the restrictions set forth
below.
 


DISCUSSION:

1. State Employee Status


On three previous occasions, the Commission has addressed the
application of G.L. c. 268A to appointed employees who are on leave
of absence from their fulltime positions. Most recently, in
EC-COI-89-27, the Commission concluded that an injured municipal
employee would be considered a municipal employee under G.L. c.
268A during the injured leave period. In EC-COI-89-27, the
Commission announced the following factors as relevant in
determining jurisdiction:

In a determination of whether one continues to hold
employment within a municipal agency the Commission will
examine the characteristics of the relationship between the
employee and the agency. The Commission will consider whether
a previously compensated employee continues to receive
compensation from the municipal agency, whether the employee
continues to receive the same retirement, insurance,
collective bargaining, sick leave and other benefits available
to municipal employees, whether the parties have a reasonable
expectation that the employee will return to his municipal
position and what actions have been taken by the parties to
terminate the employment relationship. No one factor is
dispositive as the Commission considers the cumulative effect
produced by each factor, as well as analyzing each factual
situation in light of the purpose of the conflict of interest
law. (citations omitted)

The Commission applied these standards to establish jurisdiction
in EC-COI-89-27 inasmuch as the injured employee continued to
receive health insurance and other economic benefits from the
municipality during the leave period and had a reasonable
expectation that he would return to work.

The Commission reached a similar conclusion in EC-COI-84-46,
an opinion addressing the application of G.L. c. 268A to state
institutional teachers during the two month summer period in which
these teachers neither teach nor receive compensation. The finding
of continuing state employee status rested on the continuity of
retirement, insurance, collective bargaining and sick leave
benefits to institutional teachers during the two month leave. This
opinion distinguished EC-COI-84-17 in which the Commission held
that state employee status does not continue during a leave of
absence in which the employee receives no compensation, fringe
benefits or retirement credit attributable to that leave period.
The Commission noted, however, that a period of absence due to
vacation, holidays, personal time or illness would not affect state
employee status where the employee was receiving benefits during
the leave period. EC-COI-84-17.[3]

Applying the EC-COI-89-27 factors to your question, we
conclude that a state employee who chooses Option 1 and who takes
unpaid leave will retain state employee status under G.L. c. 268A
during the leave period, inasmuch as the employee will be receiving
continued health insurance and other benefits and has a reasonable
expectation of returning to work. EC-COI-89-27; 84-46.

We also conclude that, during the period of uncompensated
leave under Option 1, a state employee will be considered a special
state employee pursuant to G.L. c. 268A, s.1(o).[4] This conclusion
is consistent with both the language of s.1(o) granting special
employee status for a position for which no compensation is
provided, as well as Commission precedent. See, EC-COI-84-46
(institutional school teachers are special state employees during
their uncompensated summer leave).[5]


2. Application of G.L. c. 268A During Leave Period


Although your opinion request does not identify the specific
types of outside activity in which employees intend to engage
during the unpaid leave period, we can offer the following general
guidelines.


(a) Section 4


If an employee receives compensation from or represents a
party other than the commonwealth or a state agency during the
leave period, G.L. c. 268A, s.4 will apply. Under s.4, a state
employee may neither receive compensation from nor act as agent or
attorney for anyone other than the commonwealth or a state agency
in connection with any lawsuit or other particular matter[5] in
which the commonwealth or a state agency is a party or has a direct
and substantial interest. As a special state employee, however, the
employee is exempt from the restrictions of s.4 except for those
particular matters in which the employee participates, has official
responsibility for, or which are pending in the employee's state
agency. EC-COI-91-5. Thus, an ABC employee would be prohibited
during the unpaid leave period from receiving compensation from or
representing a client in any matter pending in ABC. On the other
hand, the employee could work on civil matters and other particular
matters which are outside of the ABC's jurisdiction, since those
matters would not be pending in the ABC's office.


(b) Section 7


If an employee receives compensation from or works for another
state agency during the unpaid leave period, G.L. c. 268A, s.7 will
apply. Under s.7, a state employee may not have a financial
interest, direct or indirect, in a contract made by a state agency.
As a special state employee, however, the employee is exempt from
s.7 except for financial interests in contracts made by the same
state agency, e.g., the ABC's office. G.L.

Page 354

c. 268A, s.7(d).[7] Thus, an ABC employee could contract with a
state agency independent of the ABC's office during the leave
period.

In addition to the restrictions of s.s.4 and 7, employees
should also be aware of the following point.

1. Under G.L. c. 268A, s.23(c), a state employee may not
disclose to anyone, including a law firm, any confidential
information which the employee has acquired as a state employee.

2. If, prior to the leave period, a state employee has an
arrangement for employment with a law firm, G.L. c. 268A, s.6
requires the employee to abstain from any official participation
in cases involving that firm and to disclose the employment
arrangement to both the employee's appointing official and the
Commission. See, {Commission Advisory No. 14}.


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

[1] "State employee," a person performing services for or
holding an office, position, employment, or membership in a state
agency, whether by election, appointment, contract of hire or
engagement, whether serving with or without compensation, on a
full, regular, part-time, intermittent or consultant basis,
including members of the general court and executive council ...
G.L. c. 268A, a.1(q).

[2] This opinion is limited to the application of G.L. c.
268A. To the extent that you seek guidance as to the application
of other statutes to the outside activities of ABC employees on
furlough, you should continue to pursue an answer to this question
from the Attorney General.

[3] While not directly related, EC-COI-83-84 concluded in that
an elected municipal official retained municipal employee status
during the period of a brief leave of absence. This conclusion
rested on the fact that the official continued to hold the elected
position.

[4] "Special state employee," a state employee:

(1) who is performing services or holding an office, position,
employment or membership for which no compensation is
provided, or

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, provided that
disclosure of such classification or permission is filed in
writing with the state ethics commission prior to the
commencement of any personal or private employment, 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 a status on days for which he is not
compensated as well as on days on which he earns compensation.
G.L. c. 268A, s.1(o).

[5] In EC-COI-84-46, the Commission left open the question of
whether special employee status would apply during a comparatively
short unpaid leave, specifically noting that a state employee would
not be a special state employee during the weekend between his or
her normal work week. The circumstances surrounding the enactment
of St. 1991, c.6 and the resulting employee obligation to choose
options to generate savings for the commonwealth at the immediate
expense of the employee distinguish unpaid leave under Option 1
from weekend leave. We note that special state employee status does
not accrue to employees who elect furlough options for periods in
which they perform services and agree to receive deferred
compensation or vacation days for those periods. On the other hand,
a period of uncompensated leave, under Option 1, even for a period
of less than five continuous days, would result in eligibility for
special state employee status.

[6] "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).

[7] A special state employee qualifies for a s.7(d) exemption
where the financial interest is in a contract made by an agency in
whose activities the employee neither participates nor has official
responsibility as a state employee, and the employee discloses the
financial interest to the Commission.

 

End Of Decision