March 13, 1991

FACTS:

Page 346

You are an Associate Professor at a State College (College).
In that capacity, you teach a course to College students involving
the instruction and coaching of elementary school students. As part
of your faculty position, you also teach physical education in K-6
classes at a campus center (Center) which is part of the College.
In addition to your faculty position, you coach crosscountry and
track teams in the fall and winter semesters. Your part-time
coaching position is a separate, paid position, funded by the
Athletic Trust Fund (Fund). Generally your faculty responsibilities
do not coincide with your coaching schedule. For instance, track
meets are usually held on weekends and your coaching takes place
after your faculty duties. The exception to this arrangement may
occur if a national track meet is scheduled out of town. In such
a case, you would reschedule your class or arrange for a substitute
instructor and would take personal leave to make such a trip and
if necessary, you would pay for the substitute instructor.


QUESTIONS:


Does your financial interest in your compensated cross-country
and track coaching position qualify for an exemption from G.L. c.
268A, s.7.


ANSWER:


Yes.


DISCUSSION:


In your capacity as an associate professor at the College, you
are considered a state employee of a state agency within the
meaning of G.L. c. 268A. See, G.L. c. 268A, s.1(p),(q).[ 1] As a
state employee, you are subject to the restrictions of G.L. c.
268A, s.7, which prohibits a state employee from having a financial
interest, direct or indirect, in a contract made by a state agency.
Quinn v. State Ethics Commission, 401 Mass. 210 (1987). By virtue
of your receipt of compensation from the Fund for your services as
a college crosscountry athletic and track coach, you have a
financial interest in a contract made by a state agency.

Prior to 1980, both the Commission and Attorney General
concluded that G.L. c. 268A, s.7 prohibits a state employee from
performing paid teaching services at a state college or university.
EC-COI-79-9; Attorney General Conflict Opinion No. 844. In response
to these conclusions under G.L. c. 268A, s.7, the General Court
enacted St. 1980, c. 303 which established the following exemption
from s.7:

This section 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.

Since the enactment of this exemption, state employees have
received compensation for teaching at state colleges and
universities, with the exception of those employees who hold
influential positions affecting the financial management of the
institutions at which they intended to teach. The Commission has
applied the exemption language to cover teaching services in state
and community colleges, EC-COI-81-85, as well as in institutions
which are required by state law to provide education and training.
EC-COI-81-15 (correctional facility), 81-39 (Criminal Justice
Training Council). On the other hand, the Commission has found the
exemption inapplicable to state employees who have official
responsibility for the financial management of the teaching
institution ( EC-COI-81-126; 83-90 ) or whose services are conducted
for state agencies which are not comparable to educational
institutions. EC-COI-81-40; 81-95.

While the Commission has not directly construed the meaning
of "teaching" under the exemption, the Commission found in
EC-COI-82-158 that a state employee who performed paid services in
the preparation of a college catalogue did not qualify for the
teaching exemption. The instances in which the Commission has

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applied the exemption have, without exception, involved instruction
to students in an academic classroom setting.

In 1990, the Massachusetts Teachers Association filed
legislation to clarify the meaning of the term "teaching" under the
exemption. The legislation, An Act Further Regulating Employment
in Higher Education,
was enacted as St. 1990, c. 487 and provides
that the state employee services eligible for the exemption will
include teaching as well as "performing other related duties."[2]
In declaring the act to take effect immediately upon signing, the
Governor stated that the act would "enable teachers to perform
related duties such as part-time coaching and teaching . . . " See,
Statement of the Governor,
December 31, 1990, filed with the
Secretary of State in connection with the enactment of St. 1990,
c. 487.

We conclude that the recently amended exemption to G.L. c.
268A, s.7 permits a state employee to perform instructional
services both within and outside of the traditional academic
classroom setting at a state educational institution as well as
services which are directly related to such instruction. The
clarifying language reflects an intent to assure that the exemption
covers instructional services performed outside of the classroom.
In particular, we regard as persuasive the statement of the
Governor that the amendment was intended to cover coaching. It is
well settled that the message of the Governor in connection with
the consideration and enactment of a bill is relevant to assist in the
construction of a statute. Taplin v. Town of Chatham, 390 Mass. 1
(1983); MacCuish v. Volkswagonwerk A.G., 22 Mass. App. 380 (1986);
Sands, Sutherland Statutory Construction, s.48.05 (4th Ed.).

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. See, EC-COI-87-2 citing Department of
Environmental Quality Engineering v. Town of Hingham
, 15 Mass. App.
Ct. 409, 412 (1983).

Based on the foregoing, we conclude that your cross-country
athletic and track coaching services for the College qualify for
an exemption under G.L. c. 268A, s.7, inasmuch as they are
performed on a part-time basis and you do not have responsibility
for the financial management of the College. We would caution you,
however, to maintain accurate records of your coaching activities
and to arrange to take personal or vacation leave if your coaching
activities overlap with your regular College employment schedule.
Under G.L. c. 268A, s.23(b)(2), a state employee may not we his
official position to secure for himself any unwarranted privileges
or exemptions of substantial value. By receiving dual compensation
from the College for the same hours, you will violate s.23(b)(2).
EC-COI-86-11 (a state employee may not receive additional
compensation on an educational leave day for which he already
receives regular state compensation). Your arrangement under which
you take personal leave for your cross-country and track coaching
must therefore be consistent with s.23(b)(2). In particular, it is
not appropriate to reschedule regular classes or to arrange for
substitute instructors to accommodate your track meet schedule.

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[1] Because your faculty contract expressly permits you to
engage in professional activities during customary working hours,
you are also considered a "special state employee" under G.L. c.
268A, s.1(o). EC-COI-81-64. Your status as a special state employee
will have no bearing, however, on the application of G.L. c. 268A
to your facts.

[2] We express no opinion as to the merits of this amendment.

End Of Decision