October 13, 1988

FACTS:


You are a full-time employee of the District Court Department.
You have recently been offered a part-time position as an
instructor with a driver alcohol education program at a private
facility in the Commonwealth. The position would require
instruction of two classes, one evening per week. This facility is
one of several private agencies which contracts with the
Commonwealth to service first offender "operating under" clients
referred by the Court, pursuant to G.L. c. 90, s.24(d). You would
be paid with private funds and not from funds generated by the
state contract. Your class would be comprised of clients referred
from the District Court Department, but not from the specific court
where you are employed. Your work as a program instructor at the
facility would include teaching the course, recording the
attendance informa-

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tion that yields the pass or fail grade for the course, and
forwarding to the facility's director any information on the
facility's clients that should be forwarded to the District Court
Department.


QUESTION:


Does G.L. c. 268A permit you to accept this offer of part-time
employment as an instructor in a driver alcohol education program
where the class membership would be composed of clients referred
by state courts excluding the division of the District Court
Department where you are employed?


ANSWER:


No, as the instruction would inevitably involve participation
in matters of direct and substantial interest to the state.


DISCUSSION:



In your capacity as a full-time employee of one division of the
District Court Department, you are a state employee for the
purposes of the conflict of interest law. See, G.L. c. 268A,
s.1(q); EC-COI-87-41
. Section 4 of the conflict of interest law is
applicable to your situation.

Section 4(a) generally prohibits a state employee, otherwise
than as provided by law for the proper discharge of his official
duties, from directly or indirectly receiving or requesting
compensation from anyone other than the Commonwealth or a state
agency, in relation to any particular matter[1] in which the
Commonwealth or a state agency is a party or has a direct and
substantial interest. Long-standing Commission precedent indicates
that referrals from a state agency like the state court system are
particular matters in which the Commonwealth has a direct and
substantial interest. See, EC-COI-85-28; 83-101, 81-105.

The District Court Department is a state agency. EC-COI-84-127.
The division of the District Court Department that employs you is
part of that agency. See, EC-COI-84-53. Accordingly, your s.4(a)
problem is not cured by the elimination of referral clients from
the district court that employs you from the classes you propose
to teach at this private education program.

The state has a direct and substantial interest in referrals
from all the divisions of the District Court Department. See, EC-
COI-82-42
. This is because the agency made the referrals, the
agency will be supervising the referrals and the agency will be
evaluating the outcome of the referrals. Your role as instructor
would require your assistance in the attendance and cooperation
tracking of individual state court referred clients. The state has
a direct and substantial interest in the information you would
forward, through the facility's program director, to the District
Court Department's probation officers on the compliance or
noncompliance of various individuals with the program. In short,
your compensation from the education program would be in connection
with the referral. Compare, EC-COI-82-176 (indicating that a state
RMV inspector could be a classroom instructor for a driving school
because his compensation was only in connection with his teaching
and not with the state exam, the particular matter at issue). Your
s.4(a) problem is also not cured by the fact that the education
program facility proposes to compensate you out of private funds
and not out of funds received from the Commonwealth.[2] Section
4(a)'s restrictions specifically target private compensation in
relation to particular matters like these in which the state has
a direct and substantial interest.

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

[1] 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 ones,
towns, counties and districts for special laws related to their
govemmental organizations, powers, duties, finances and property.
G.L c. 268A, s.1(k).

[2] Section 7 of G.L c. 268A is not implicated in your situation
because you would not be compensated from funds received under the
facility's contract with the state.

End Of Decision