You are employed full-time at a State School. As such, you possess and exercise expertise in the treatment of certain disabilities and the design of therapeutic adaptive equipment. You ask whether you may use this expertise as a compensated consultant during your non-working hours without violating the state conflict of interest law, G.L. c. 268A. The Commission concludes that you may subject to the restrictions outlined below.
In rendering this opinion, the Commission has relied on the facts as you have stated them and has not made any independent investigation of those facts.
As a full-time employee of a State School, you are a state employee for purposes of the conflict law. See, G.L. c. 268A, § 1(q). As such, § 7 of G.L. c. 268A prohibits you from having a financial interest, either direct or indirect, in a contract in which the Commonwealth or a state agency is an interested party. Any arrangement by which the Department of Mental Health (DMH), Medicaid, or any other state agency or program provides funding for services which you would provide would be a contract by a state agency in which you would have a financial interest. The fourth paragraph of § 7 provides an exemption in cases where you would be providing services to a recipient of public assistance, such as Medicaid. If the recipient had the right to and did, in fact, choose you as provider of these services and the services are provided in accordance with a schedule of charges promulgated by the Department of Public Welfare (DPW), then the prohibition of § 7 does not apply. Unless the exemption is applicable, however, (and its terms should be strictly adhered to), you are prohibited by § 7 from receiving compensation for work as a consultant where that compensation is derived, either directly or indirectly, from a state agency or program.
Although § 7 would not apply to cases wherein the source of your compensation is private insurance or personal funds, § 4(a) of the conflict law places some restriction on your consulting in these cases. That section prohibits a state employee from receiving compensation from anyone other than the state in relation to a particular matter in which the state is a party or has a direct and substantial interest. Referrals by state agencies to private providers are particular matters of direct and substantial interest to the state. EC-COI-81-105. Therefore, § 4(a) would prohibit you from receiving compensation as a result of such a referral even though that compensation does not come from state funds.[1]
In conclusion, the conflict of interest law does not prohibit you from working as a consultant during your non-working hours. However, the provisions of §§ 4 and 7 combine to limit your employment to 1) non-referral, cases funded by private insurance, personal funds or public assistance based on a DPW fee schedule; and 2) cases referred to you by a state agency and funded by public assistance based on a DPW fee schedule.
End Of Decision
