Opinion  EC-COI-81-106

Date:	07/21/1981
Organization:	State Ethics Commission

A state consultant may not receive compensation under a separate state contract while simultaneously employed by a state agency, unless an exemption is obtained. Because the individual would have a financial interest in a contract made by a state agency, G.L. c. 268A, § 7 prohibits the arrangement absent disclosure and approval by the Governor and Executive Council. The individual may, however, accept such compensation after completing their state employment, provided the work is not connected to matters in which they previously participated, consistent with § 5.

Facts

You have been employed by the state agency ABC since (date omitted) as a consultant to the DEF Program. In your consultant capacity you assist the DEF director in (description of duties omitted). You are currently preparing suggestions and drafts for an assignment for the DEF, and your primary work contracts are with the DEF Director. Under the terms of your consultant contract with ABC, you will receive a maximum of omitted based upon a daily rate of compensation of $100 and travel expense reimbursement of up to $300. Earlier in (date omitted) 1981, you were also selected as the project director for the GHI. Pursuant to a contract with ABC, GHI has agreed to prepare a (description of project omitted). You would direct this project for GHI and would be responsible for the completion of the contracted tasks. Your duties would include conferring with the staff of the DEF, and your compensation would be paid by GHI pursuant to the contract with ABC. Under your work schedule, you expect to participate in both contracts during the same period of time, with a maximum of 60 days devoted to each contract. You state that your functions under the two contracts are not related.

Question

You wish to know whether G.L. c. 268A permits you to receive compensation under the GHI contract while you are employed as a consultant to the DEF.

Answer

For the reasons stated below, the Commission concludes that your dual compensation arrangement is prohibited by s.7 of G.L. c. 268A unless you receive an exemption from the Governor with the advice and consent of the Executive Council. However, the Commission further advises you that G.L. c. 268A permits you to engage in and receive compensation under the GHI contract following the completion of your consultant contract with ABC.

Discussion

ABC is a state agency within the meaning of G.L. c. 268A, s.1(p). See, (citation omitted). As assistant to the DEF project director, you are a consultant to ABC and are, therefore, a state employee within the meaning of G.L. c. 268A, s.1(g).^[1] However, since your position permits private or personal employment during normal working hours and you do not earn compensation as a consultant for more than 800 hours annually, the Commission concludes that you are a special state employee within the meaning of G.L. c. 268A, s.1(o).^[2] As a state employee, you are prohibited under s.7 from having a direct or indirect financial interest in a contract made by a state agency. Therefore, unless you comply with one of the exemptions contained in s.7, you may not have a financial interest in the GHI contract while you remain a consultant to ABC. As a special state employee, the exceptions contained in s.7(d) and (e)^[3] are relevant to your situation. Under s.7(d) the aforementioned prohibitions will not apply to you if you do not participate in any of the activities of ABC and file an appropriate disclosure.

Decision

On the basis of a review of your current responsibilities at ABC, the Commission concludes that you do participate in ABC activities. This conclusion is based upon your role in preparing management by objectives models for the DEF and on your regular working relationship with agency directors within ABC. Compare, EC-COI-79-128. Therefore, you may not have a financial interest in the GHI contract while employed as an ABC consultant unless you file with the Commission a statement making full disclosure of your interests in the contract and then only if the governor, with the advice and consent of the Executive Council, exempts you. G.L. c. 268A, s.7(e). The Commission further advises you that you may engage in and receive compensation under the GHI contract following the completion of your consultant contract with ABC. Upon completion of the ABC contract you will become a former state employee within the meaning of G.L. c. 268A, s.5. While s.5(a) prohibits you from receiving private compensation in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest and in which you participated while employed as a state employee, the GHI contract was not a particular matter in which you participated while employed at ABC You should be aware, however, that the prohibition of s.5(a) will continue to apply to your receipt of private compensation related to other particular matters in which you participated while employed as an ABC consultant.

Additionally, s.5(b) will prohibit you for one year from appearing personally before any state court or state agency in connection with any particular matter which was under your official responsibility at ABC at any time during a two-year period prior to the termination of your employment with ABC. While your factual situation relative to the GHI contract does not present a violation of s.5(b), you should refrain from representing GHI or any other private party before any state court or state agency in connection with particular matters which came under your official responsibility during the two year period prior to your termination of services with ABC.^[4]

End Of Decision

[1] G.L. c. 268A, s.1(q) defines "state employee", in relevant part, as "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 membership of the general court and executive council".

[2] "Special state employee, "a state employee: (1) who is performing services or holding an office, position, employment or membership for which no compensation is provided, or (2) who is not an elected official and (a) occupies a position which, by its classification in the state agency involved or by the terms of the contract or conditions of employment, permits personal or private employment during normal working hours, or (b) in fact does not earn compensation as a state employee for an aggregate of more than eight hundred hours during the preceding three hundred and sixty-five days. For this purpose compensation by the day shall be considered as equivalent to compensation for seven days per day. A special state employee shall be in such status on days for which he is not compensated as well as on days on which he earns compensation".

[3] The provisions of s.7 do not apply "(d) to a special state employee who does not participate in or have official responsibility for any of the activities of the contracting agency and who files with the State Ethics Commission a statement making full disclosure of his interest and the interests of his immediate family in the contract, or (e) to a special state employee who files with the State Ethics Commission a statement making full disclosure of his interest and the interests of his immediate family in the contract, if the governor, with the advice and consent of the Executive Council, exempts him".

[4] While G.L. c. 268A, s.23(d) prohibits employees from using their official position to secure unwarranted privileges for themselves or others, it does not appear that you used your position as ABC consultant to acquire the GHI contract inasmuch as your selection for the GHI contract predated your consultant contract with ABC.