April 29, 1996

FACTS:



You are a full-time supervisor in an on-going protective
service unit within the Department of Social Services ("DSS"). You
have served as a DSS employee since 1978. In addition to the
foregoing, you are also employed on a part-time basis (20 hours per
week) as a Safe Home Coordinator and Counselor by Adult/Adolescence
Counseling, Inc. ("AAC") in its domestic violence program known as
"Services Against Family Violence" ("Services"). You applied for
this position in response to a job advertisement in the Boston
Globe.

As part of its Services program, AAC operates a Safe Home
Network ("SHN") which provides a safe place/shelter to women and
children seeking to escape domestic violence. Utilizing donated
space in hotels/motels or personal homes, individuals or families
seeking shelter contact a 24-hour hotline through which they are
directed to a safe home location. Such locations are not
publicized and change periodically for security purposes. The SHN
model is currently a popular adjunct to many battered women's
programs and provides the shelter function for most such programs.
You state that the SHN model is less costly than a single site
shelter. Moreover, the SHN model provides greater security than a
single site shelter because it is difficult for a batterer to track
a domestic violence victim where the safe home locations are not
publicly disclosed and such locations change periodically. The SHN
as well as the other domestic violence services offered by AAC are
available free of charge on a 24-hour per day basis.

The Services program is funded by various resources including
a contract with the DSS, community development block grants from
several area communities, corporate and foundation grants and
individual contributions. The DSS contract, which, among other
things, requires AAC to provide a domestic violence safe home,
constitutes approximately 81% of the total revenues for the
Services program.

With regard to your particular responsibilities at AAC, you
are involved in recruiting homes and/or hotels/motels for use as
SHN locations. You also participate in the training of volunteers
who provide services through the SHN program. You provide coverage
for the 24-hour hotline service and counseling services to SHN
clients when you work all night/on call shifts. You do not
participate in the financial management of the SHN. AAC's contract
with the

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DSS contemplates the particular services with which you are
involved as an AAC employee (the 24-hour hotline, individual and
group counseling, and safe home services).

QUESTION:


In light of your DSS employment, does the conflict of interest
law allow you to retain the above described part-time employment
arrangement?


ANSWER:


Yes, provided that you comply with certain conditions.


DISCUSSION:


In your DSS position, you are a state employee[1] for purposes
of the conflict of interest law.

Section 7 of G.L. c. 268A prohibits a state employee from
having a direct or indirect financial interest in a contract made
by a state agency unless an exemption applies. We have previously
found that the s.7 prohibition is relevant to a state employee who
is additionally employed by a private organization which has a
contract with a state agency to perform certain services. In
particular, where a state employee works for a state agency vendor
to provide services under a state contract, we have held that the
state employee has an indirect financial interest in the private
employer's state contract. See EC-COI-81-141; 85-81. In your
case, where the tasks which you perform in your private capacity
are contemplated under AAC's funding arrangement with DSS, we find
that you have an indirect financial interest in the contract
between AAC and DSS.


The last paragraph of s.7, commonly known as the "critical
need" exemption, provides that:

[t]his section shall not prohibit a state employee from
being employed on a part-time basis by a facility
operated or designed for the care of mentally ill or
mentally retarded persons, public health, correctional
facility or any other facility principally funded by the
state which provides similar services and which operates
on an uninterrupted and continuous basis; provided that
such employee does not participate in or have official
responsibility for, the financial management of such
facility, that he is compensated for such part-time
employment for not more than four hours in any day in
which he is otherwise compensated by the commonwealth,
and at a rate which does not exceed that of a state
employee classified in step one of job group XX of the
general salary schedule contained in section forty-six of
chapter thirty, and that the head of the facility makes
and files with the state ethics commission a written
certification that there is a critical need for the
services of the employee. Such employee may be
compensated for such services, notwithstanding the
provisions of section twenty-one of chapter thirty.


We have previously applied this exemption to group residence
homes operated by private vendors of the Commonwealth where the
major funding source for the group home is a state agency, where
the services provided are similar to those provided by similar
state facilities and where the program operates on a twenty-four
hour per day basis. See EC-COI-83-71. In contrast, we refused to
apply the exemption in a situation involving periodic daytime
respite care services because we found that services provided only
during the daytime on an "as needed basis" or under a regularly
scheduled basis of four hours per week were not sufficiently
continuous to meet the requirement of the exemption. As we have
previously concluded "[i]n order to qualify for the exemption,
employees must be working, at a minimum, in a program which
provides round-the-clock services." EC-COI-83-73.

In order to determine the applicability of the exemption to
the case at hand, we must decide whether the SHN is a facility
within the meaning of the final paragraph of G.L. c. 268A, s.7. We
note that the Legislature did not provide a definition for the word
"facility" as used in the critical need exemption. We therefore
look to other sources including the legislative history of the
critical need exemption. We are guided by the following premise of
statutory construction:

[The] intent of the legislature is to be determined
primarily from the words of the statute, given their
natural import in common and approved usage, and with
reference to the conditions existing at the time of
enactment. This intent is discerned from the ordinary
meaning of the words in a statute considered in the
context of the objective which the law seeks to fulfill.
Wherever possible, we give meaning to each word in the
legislation; no word in a statute should be considered
superfluous.

Int'l Organization of Masters, etc. v. Woods Hole, Martha's
Vineyard & Nantucket Steamship Authority,
392 Mass. 811, 813 (1984)
(citations omitted);

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O'Brien v. Director of DES, 393 Mass. 482, 487-88 (1984).

The word "facility" ("facilities" plural) as defined in
Webster's Third New International Dictionary (1961) means: ". . .
5 a: something that promotes the ease of any action, operation,
transaction, or course of conduct . . . b: something (as a
hospital, machinery, plumbing) that is built, constructed,
installed, or established to perform some particular function or to
serve or facilitate some particular end." As one court concluded,
after noting a dictionary definition and looking at relevant case
law, "the word facility is a very broad term and is intended to
embrace anything, including human agencies which aid or make easier
the performance of activities." Extendicare, Inc. v. State
Coordinating Council for Health Planning
, 532 P.2d 1119, 1122
(1975). Where courts, in seeking to define the word facility, have
been forced to look to broad dictionary definitions and have
recognized the ambiguous nature of the term, we find no generally
accepted common law meaning upon which we may rely in examining the
facts before us.

We therefore turn to the legislative history and purpose
underlying the critical need exemption. See generally, Commonwealth
v. Collett
, 387 Mass. 424, 433 (1982) ("when phraseology of statute
is ambiguous, court may look to various steps in its enactment to
resolve ambiguity"). Prior to 1983, the Ethics Commission
consistently advised full-time state employees that s.7 prohibited
them from being additionally employed by human services
providers[2] pursuant to contracts with the state agencies by which
they were employed. See State Ethics Commission Compliance Letter
81-21
(July 29, 1981); EC-COI-81-141, Attorney General Conflict
Opinion No. 798
. In late 1981, the Commission proposed a bill, H.
1235 (1982), which made various amendments to G.L. c. 268A. Among
those amendments was a new exemption to allow state employees to
work part-time in certain human service facilities, subject to a
series of restrictions. In 1982, the Legislature considered H.
1235, and the critical need amendment. With certain minor changes,
the Commission's original proposal[3] was later enacted (St. 1982,
c. 612, s.7, effective March 29, 1983).[4] As we have previously
recognized, in amending s.7, it was the intent of the Legislature
"to create an exemption which would permit state employees to work
in twenty-four hour human service programs which customarily have
difficulty obtaining sufficient staffing."[5] EC-COI-83-73.


As for the SHN, with regard to which you serve as a
coordinator and counselor, we acknowledge that AAC does not operate
its own shelter facility through which domestic violence services
are provided. However, there appear to be sound reasons, namely
cost and security, for providing domestic violence services through
a network of locations rather than a single, permanent AAC operated
facility. In order to find a facility within the meaning of the
critical need exemption, we will not therefore require that
providers of social service programs, which would otherwise meet
the requirements of the critical need exemption, provide services
at a particular fixed location.

We conclude that your part-time employment fits within the
range of situations about which the Legislature was concerned when
adding the 1982 exemption.[6] Where the SHN, in effect, is the
functional equivalent of a facility which is principally funded by
the state and the SHN offers services similar to those which would
otherwise be provided by the DSS itself,[7] we find that you are
employed in a facility which is covered by the critical need
exemption. Moreover, where through the SHN, AAC provides domestic
violence services on an around-the-clock basis, we find that the
exemption's requirement of uninterrupted and continuous operation
is met.[8] We believe that in applying the exemption to your
situation where, for good reason, AAC chooses not to operate its
domestic violence safe home out of a fixed facility, we are giving
G.L. c. 268A, s.7 a workable meaning which is consistent with the
statutory language, the legislative intent and our prior opinions
interpreting the exemption.

Accordingly, we find that you will meet the initial criteria
of the critical need exemption. We note that you do not
participate in or have official responsibility for the financial
management of the SHN.[9] Therefore, assuming that you comply with
the other exemption criteria,[10] you may continue your part-time
employment arrangement 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] "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. No
construction contractor nor any of their personnel shall be deemed
to be a state employee or special state employee under the
provisions of paragraph (o) or this paragraph as a result of
participation in the engineering and environmental analysis for
major construction projects either as a consultant or part of a
consultant group for the commonwealth. Such


Page 662

contractor or personnel may be awarded construction contracts by
the commonwealth and may continue with outstanding construction
contracts with the commonwealth during the period of such
participation; provided, that no such contractor or personnel shall
directly or indirectly bid on or be awarded a contract for any
construction project if they have participated in the engineering
or environmental analysis thereof. G.L. c. 268A, s.1(q).


[2] These providers included both state facilities and private
organizations providing services under contract with the
Commonwealth.

[3] As originally drafted the Commission's proposed exemption
was limited to state facilities providing services 24 hours per
day, 7 days per week. Through a proposal from the House floor on
July 1, 1982, Representative Cerasoli successfully amended the
exemption to include within the class of eligible institutions any
facility principally funded by the state which provides services
similar to those provided by (state) mental health care, public
health and correctional facilities and which operates on an
uninterrupted and continuous basis. Under the amended language, it
appears that the House sought to expand the exemption's coverage to
include private providers of social services which were principally
funded by the state and which operated on a 24-hour per day basis.

[4] The Commission conveyed to the Senate its support for
House 1235 as amended through the efforts of Representative
Cerasoli. See Memorandum to Members of the Massachusetts Senate
from Maureen McGee, Executive Director of the State Ethics
Commission
, dated July 8, 1982.


[5] This legislative intent may be discerned from the
Commission's stated purpose in proposing the exemption:

Because it appears to be difficult for such institutions
to hire sufficient staff to provide continuous coverage,
and because individuals who are already state employees
are often among those most qualified and willing to work
in state institutions, it seems appropriate to allow
state employees to accept such positions as long as
certain safeguards are met. An Act Amending The Laws
Regulating the Conduct of Employees: Overview of Major
Recommendations, Publication of the State Ethics
Commission, (undated).

[6] This conclusion is supported by the House floor amendment
to the original Commission proposal whereby the scope of the
exemption was expanded to cover a wider range of social service
facilities.

[7] We find that the services provided through the SHN are
intended to address the public health issues surrounding the
problem of domestic violence. Moreover, such services are
statutorily mandated by G.L. c. 18B, s.2(A)(14) which requires the
DSS to provide "temporary residential programs providing counseling
and supportive assistance for women in transition and their
children who because of domestic violence, homelessness, or other
situations require temporary shelter and assistance." See 110 CMR
7.091:(3) ("Services to women in transition shall be provided by
agencies or individuals under contract to the Department. Shelters
shall be located in facilities that provide a safe, temporary
residence in an anonymous location and shall be accessible on
a 24- hour-a-day, seven-day-a-week basis.").

[8] This application of the exemption is based on the fact that you work in relation to the SHN
which operates on a 24 hour per day basis. Were you to work in
other AAC programs which provide services on a limited, daytime
basis, the critical need exemption would not be applicable. See
EC-COI-83-73
(pursuant to critical need exemption, the fact that
provider runs certain programs on an around-the-clock basis does
not afford state employee the opportunity to work after hours in
all programs of that provider).

[9] This is the case in both your DSS position and with regard
to your work with AAC.

[10] The other requirements of the exemption are:

1. You may not be compensated in your AAC position for more
than four hours in any day in which you are otherwise compensated
by the Commonwealth;

2. You may not be compensated at a rate which exceeds that of
a state employee classified in step one of job group XX of the
general salary schedule contained in section forty-six of chapter
thirty; and

3. The head of the Services program must make and file with
the Ethics Commission a written certification that there is a
critical need for your services.

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End of Decision