You are a faculty member at a private college and you have been retained as a consultant to a state agency (ABC).You serve without compensation as a member of the Board. You also serve as the President of the Board of directors of, a non-profit corporation which provides particular types of services.
You ask whether you may continue to serve in these capacities without violating General Laws Chapter 268A.
In rendering this opinion, the Commission has been guided by, and will continue to follow for the near future, the interpretations and opinions of the attorney General issued prior to November 1, 1978, the effective date of the Commission's jurisdiction over Chapter 268A matters.
You advise us that you serve as a consultant to an office in ABC approximately ten (10) hours each week. That office conducts annual reviews of programs run by or funded by ABC. Your duties include developing a uniform methodology for the annual review of programs run by or funded by ABC. In this regard, you prepare summaries of completed reviews for the head of the agency, meet with the regional coordinators to provide technical assistance with the review process, and collect information on problems with the review instrument and process in order to recommend changes. You do not participate in writing review summaries of providers in the region, which includes Inc. and the Area Board. You participate occasionally in review teams conducting the direct reviews, but not in that Region. As a part-time consultant to ABC, you are a "special state employee". As a member of the Area Board, you are also a "special state employee", citation omitted. General Laws Chapter 268A, § 1(o); Attorney General Conflict Opinion Nos. 613, 742. Therefore, § 4, 6 and 7 of the conflict of interest law apply to you.
Section 4(a), which generally prohibits a state employee from receiving compensation from anyone other than the Commonwealth in relation to particular matters of direct and substantial interest to the state, does not prohibit any of your activities since your compensation as a consultant is paid by the state and since the compensation you receive from the College does not relate to any particular matters of direct and substantial interest to the state. Section 4(c), however, prohibits you from acting as the agent for anyone other than the Commonwealth or a state agency in relation to any particular matter which the state is a party to or in which it has a direct and substantial interest and in which you have participated, or which is under your official responsibility, or which is pending before ABC (since you serve as a consultant to that agency for more than 60 days per year). You have advised us that Inc., has several contracts with ABC. These contracts are "particular matters" which the state is a party to and has a direct and substantial interest in (s. 1(k); Attorney General Conflict Opinion No. 613, 777). Even though you may not have participated in any of these contracts as a Board member, some of these contracts appear to fall within your "official responsibility" as an Area Board member citation omitted, and they are pending in the agency in which you serve as a consultant. As a result, § 4(c) prohibits you from acting as the agent of Inc. on these contracts(for example, by signing them in your capacity as President of the Board of Directors) or from otherwise acting as the advocate for the corporation in its dealings with the Area Board or ABC on particular matters.
Section 6 prohibits you from participating in a particular matter in which you or a business organization in which you are serving as officer or director has a financial interest. You have advised us that as a consultant, you do not participate in review summaries of the regions area programs or direct reviews of Region programs. Section 6 also requires you to advise the official responsible for your appointment (the head of the agency) and the Ethics Commission of the nature of your duties and of your financial interest therein. The agency head may then assign these matters to another employee or make a written determination that your interest is not so substantial as to affect the integrity of your service. Section 6 requires that this written determination be filed with the Ethics Commission. Furthermore, you advise us that as an Area Board member, you have abstained from voting on any issue affecting, Inc., or competing vendors in areas where Inc., is involved.
Participation, as defined in § 1(j), includes making recommendations or rendering advice. Therefore, you should not participate as a Board member in any discussions regarding these matters unless and until you comply with the disclosure requirements and obtain the written determination required by § 6.
Finally, § 7 prohibits you from having a financial interest in a contract made by a state agency. Although Inc. has contracts with ABC you are not compensated for your service as President of the Board and therefore you do not have a financial interest in those contract. However, because you are a state employee by virtue of your membership on the area Board, you have a prohibited financial interest in your consulting contract with ABC. Since your duties on the Area Board include participating in the activities of ABC you may not continue to serve on the Board and receive compensation from ABC for your consulting services unless or until you obtain an exemption under § 7(e) from the Governor and his Executive Council. A copy of this section is enclosed for your convenience.
In rendering this opinion, the Commission has not considered whether another statute is applicable to you as a consultant. We recommend that you seek a determination from the General Counsel of ABC on that statutes application to your circumstances.
End Of Decision
