| Date: | 01/10/1979 |
|---|---|
| Organization: | State Ethics Commission |
Section 7 prohibits an administrative official of a state hospital, a "state employee", from receiving compensation for consulting services from an Association where the funds are derived from a contract between the Association and a state agency. Sections 4(a) and 6 also restrict his participation in decisions concerning the placement of hospital residents in Association programs.
You have stated that you are employed by the Department of Mental Health on a full-time basis at a State Hospital. You have requested an opinion on the question whether the conflict of interest statute, G.L. c. 268A, prohibits your working as a paid consultant to an Association (Association). For the reasons discussed below, we conclude that G.L. c. 268A, § 7, prohibits your performing these compensated consultant services under the funding arrangement you have described.[1]
You have provided the following information. You are a licensed psychologist specializing in behavioral therapy and in counseling retarded persons. You serve as a full-time administrative official of a State Hospital, an institution under the jurisdiction of the Department of Mental Health (DMH). Accordingly, you are a "state employee" under the conflict of interest statute. See G.L. c. 268A, § 1(q). At the present time you work one evening a week as a consultant for the Association in two of its programs, working with the Association's staff and counseling its clients. The Association pays you for these services. You have recently learned, however, that while you are paid with checks of the Association, DMH reimburses the Association for most expenses of these two programs, including consultant services, under a contract between DMH and the Association.
General Laws, c. 268A, § 7, prohibits a state employee from having. . . a financial interest, directly or indirectly, in a contract made by a state agency, in which the commonwealth or a state agency is an interested party, of which interest he has knowledge or reason to know. . . . Under the Association's contract with DMH, it receives funds to pay for consultant services for its programs, including those you perform. While you indicate that you are paid by checks of the Association, the terms of its contract with DMH make clear that you have an indirect financial interest in the contract. See Conf. Op. Atty. Gen. Nos. 805, 798; see also Conf. Op. Atty. Gen. No. 833. Accordingly, § 7 prohibits you from receiving such compensation, knowing it to derive from a contract between DMH and the Association.[2] It does not prohibit, however, your performing consultant services for the Association on a voluntary basis, or your receiving compensation that comes from Association funds which are neither received from nor reimbursed by DMH or another state agency: in either of these two situations, you would not have "a financial interest . . . in a contract made by a state agency . .. ."
You have also asked about the effect of the conflict statute on your activities as a consultant for the Association if a resident of the State Hospital is placed in one of the Association's program. The statutory provisions applicable here are G.L. c. 268A, § 4 and 6. Under § 4, a state employee may not receive compensation from, or act as an agent on behalf of, anyone other than the Commonwealth in relation to a particular matter in which the Commonwealth or a state agency has a direct and substantial interest. The definition of "particular matter" includes decisions and determinations. See G.L. c. 268A, § 1(k). Section 4 would therefore prevent you from acting in any way as the Association's representative or agent in relation to a decision or determination to be made by employees of the hospital on whether a particular resident should be placed in an Association program. See § 4(c). It might also preclude your receiving compensation from the Association for counseling a former hospital resident or working with its staff on the former resident's treatment plan if the hospital or DMH continues to have a responsibility for that resident's treatment or welfare. See § 4(a).[3]
Section 6 of c. 268A prohibits a state employee from officially participating in any particular matter in which he, or an organization by which he is employed, has a financial interest. If you were to continue to serve as a consultant to the Association, you could not participate in your official capacity as an administrative employee of the State Hospital in any decisions concerning the possible placement of hospital residents in Association programs. See Conf. Op. Atty. Gen. No. 821.
In summary, G.L. c. 268A, § 7, prevents your accepting compensation from the Association for consultant services you render to its programs so long as the Association is reimbursed for those services by DMH or any other state agency. If you continue to work as a consultant for the Association under a different arrangement, G.L. c. 268A, § 4(c) and 6, respectively, would preclude your acting as the Association's representative and participating as a state employee in any decisions concerning the placement of hospital residents in Association programs. Section 4(a) might also prohibit you from receiving compensation from the Association for certain types of consultant services depending on the nature of the relationship between DMH and a hospital resident once he or she leaves the hospital and becomes a client of the Association.
End Of Decision
