You are currently employed as a (position omitted) with the Massachusetts Rehabilitation Commission (MRC) in the ABC Area. You are interested in developing concurrently a private practice in the field of vocational counseling in the Town of ABC.
You ask whether, consistent with the conflict of interest law, General Laws Chapter 268A, you may develop this private practice using a client pool of Massachusetts residents who do not live in the towns served by the ABC Area and/or non-Massachusetts residents.
The Commission concludes that you may develop your private practice in vocational counseling subject to the conditions discussed below.
In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not made any independent investigation of those facts. Pursuant to G.L.c.6, s.74, MRC is empowered to expend state, federal and other funds for the vocational rehabilitation of handicapped persons. The Commissioner of MRC prescribes, with the approval of the Governor and the Advisory Council, all rules and regulations relating to the vocational rehabilitation of handicapped persons. G.L.c.6, s.75. MRC also determines which handicapped persons are eligible for assistance from MRC. Those who are residents of Massachusetts at the time that they file their application with MRC and whose vocational rehabilitation MRC determines can be satisfactorily fulfilled and those handicapped persons who are eligible through an agreement that MRC has with another department of the Commonwealth, another state or the federal government will receive vocational rehabilitation services from MRC. G.L.c.6, secs.78 and 79. Moreover, MRC is empowered to enter into an agreement with the Division of Employment Security (DES) under which handicapped persons receiving vocational rehabilitation may be referred to the public employment offices of DES for pre-placement interviews or job placement. G.L.c.6, s.81 and G.L.c.23, s.9L.
As a (position omitted) with MRC, you (description of services omitted). Your present assignment requires you to serve individuals residing in the (municipalities omitted). You do not service the town of ABC. In your private capacity you intend to work with both handicapped and non-handicapped individuals. The focus of your practice will be to assist individuals, through a vocational counseling process, with their vocational concerns and choices. As a full-time (position omitted) with MRC, you are a state employee within the meaning of the conflict of interest law. See, G.L. c.268A, s.1(q). Section 4(a) of G.L, c. 268A prohibits you from directly or indirectly receiving or requesting compensation from anyone other than the Commonwealth or a state agency, in relation to any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest.[*]
The vocational counseling you intend to provide to handicapped persons is a particular matter, as defined by Section 1(k), of direct and substantial interest to the Commonwealth where those persons, irrespective of residence, are eligible for vocational rehabilitation services from MRC. The Commonwealth, through MRC and DES, has established a number of vocational counseling offices statewide. Through their state offices and programs handicapped persons are given guidance and instructions on how to enter into the labor force or become competent homemakers. The determination made by the Commonwealth regarding the best method(s) for handicapped persons to utilize in their vocational rehabilitation is a particular matter. Since your work and your goals are nearly identical to the Commonwealth's, you will be in violation of Section 4(a) unless you restrict your clientele to those handicapped persons who are not eligible for vocational rehabilitation services from MRC. By limiting your practice in this way, you and the Commonwealth will not be drawing applicants from the same client pool. This limitation is consistent with prior advisory opinions issued by the Commission which prohibit individuals from maintaining a private practice in the field of career counseling where the Commonwealth is involved in the field and where the individuals intend to draw clients from the same pool of applicants used by the Commonwealth. See, EC-COI-81-36 and 81-37.
The vocational counseling you intend to engage in with nonhandicapped residents of Massachusetts is also prohibited under section 4(a). The Commonwealth through DES, has established a number of employment counseling offices statewide. Unlike the MRC program, the DES program is open to anyone and both you and the state would be making certain determinations as to how an individual should conduct his job search. Therefore, you and the state would be providing similar services to clients from essentially the same pool. See, EC-COI-81-36 and 81-77. However, if you limit your non-handicapped client practice to non-Massachusetts residents, you would not be in violation of this section of the conflict of interest law.
Additionally, the restrictions of Section 23 of G.L.c.268A also prohibit your vocational counseling services to clients who are eligible for the MRC services. This section sets out standards of conduct which must be adhered to by all state employees, and involves the appearance of an impropriety as well as overt acts. Section 23(c) prohibits a state employee from improperly disclosing confidential information acquired by him in the course of his official duties or using such information to further his personal interests. Further, Section 23(d) and (f) prohibit a state employee from using or attempting to use his official position to secure unwarranted privileges for himself or others and from pursuing a course of conduct which will raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust. See In the Matter of Bernard J. Smith, State Ethics Commission Disposition Agreement (September 23, 1980). The nexus between your position with MRC and your private vocational counseling service violates these standards of conduct since your state position makes it possible for you to have access to confidential information which you could use in your private capacity.
In light of the above, the Commission concludes that you may establish a private practice in the field of vocational counseling as long as you limit your clientele to those persons, both handicapped and non-handicapped, who do not fall within the jurisdiction of the Commonwealth's programs.
End Of Decision
