March 30, 1993

FACTS:

You are a full-time employee of the Department of
Environmental Management (DEM). The Janas Skating Rink (Rink) is
owned by the Commonwealth and operated by DEM. DEM has contracted
with a private vendor to manage the Rink's operation. You have
been offered a part-time employment position with the Rink's
management vendor as a Zamboni driver.



QUESTION:

Can you be employed by a private vendor on a part-time basis
at the Janas Rink?

ANSWER:

No, unless your current DEM position is structured to
qualify as a special state employee position and the Governor
approves of your exemption pursuant to G.L. c. 268A, s. 7(e).


DISCUSSION:

Section 7 prohibits a state employee from having a direct or
indirect financial interest in a contract with a state agency,
unless an exemption is available. Your contemplated part-time
employment by the Rink management vendor would result in you
having an indirect financial interest in the vendor's management
contract with DEM.

A general exemption provided in s. 7(b) is available to a
state employee who is not employed by the contracting agency or
an agency which regulates the activities of the contracting
agency and who does not participate in or have official
responsibility for any of the activities of the contracting
agency if the contract is made after public notice, and who files
a disclosure with the State Ethics Commission [1]. See EC-COI-90-
3
. This exemption, however, is unavailable to you because you are
currently employed by the contracting agency, the DEM. See EC-
COI-85-81
(full-time state employee who sought to be employed by
agency vendor under state contract could not avail himself of s.
7(b) exemption where his full-time employment was with
contracting agency).

If your DEM position is restructured to allow you to engage
in personal or private employment during normal business hours,
you will qualify for special state employee status [2]. You must,
however, file with the State Ethics Commission a written
disclosure of your part-time classification or permission to be
privately employed during normal working hours prior to engaging
in any such private employment. As a special state employee, you
could overcome the s. 7 prohibition by relying upon the exemption
found in s. 7(e). That exemption, however, requires that you

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file a written disclosure with the State Ethics Commission of
your financial interest in the vendor's management contract with
DEM. In addition, in order to avail yourself of the s. 7(e)
exemption, you would need to receive approval of the exemption
from the Governor [3].

In conclusion, because you will not qualify for the s. 7(b)
exemption as a full-time employee of DEM, you cannot be employed
on a part-time basis by the Rink management vendor. Only as a
special state employee, and with the approval of the Governor,
could you engage in your contemplated part-time employment
without violating s. 7.


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


[*] Pursuant to G.L. c. 268B, s. 3(g), the requesting person
has consented to the publication of this opinion with identifying
information.

[1] If the contract is for personal services, additional
requirements must be met.

[2] "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).


[3] We note that even if you were a special state employee,
you could not avail yourself of another exemption, provided by s.
7(d), because that exemption requires that you, as a special
state employee, not participate in or have official
responsibility for any of the activities of the contracting
agency. In your case, because you are employed by the DEM, you
necessarily participate in the activities of the contracting
agency.

End Of Decision