You are a psychologist employed as a full-time professor of psychology at a state college (ABC). You are also an officer of DEF a non-profit corporation which provides mental health services.
You ask whether your part-time employment by DEF as a program administrator and behavioral consultant pursuant to a Department of Mental Health (DMH) contract with DEF violates the state conflict of interest law, G.L. c. 268A.
The Commission concludes it does not.
In rendering this opinion, the Commission has relied on the facts as you stated them and has not conducted any independent investigation of those facts. As a full-time professor at a state college you are a state employee. However, your employment contract[1] provides that a maximum teaching load shall be twelve (12) units per semester, or twenty-four (24) units per academic year, and that one lecture or recitation class a week equals one unit.[2] You are also required to provide three scheduled office hours per week. Beyond these requirements, the contract provides that "[f]aculty ... are expected to be available each day..."[3] In practice, ABC is aware of and does not prohibit consulting work on outside employment by full-time faculty members during their free time as long as they are "available" when required by the University. You are not an elected official and, because of the above-detailed policy, you occupy a position which by its classification in the state agency involved ABC and by terms of your contract permits personal or private employment during normal working hours. Therefore, you are a special state employee for purposes of the conflict of interest law. G.L.c.268A, s.1(o)(2)(a).[4] Section 7 of G.L.c.268A prohibits a state employee from knowingly having a direct or indirect financial interest in a contract made by a state agency. The DMH contract from which your compensation at DEF would originate would be such a contract and your compensation would constitute a financial interest. However, the third paragraph of s.7 states that this provision does not apply 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 a statement with the Commission making full disclosure of his financial interest in the contract. You do not indicate that you play any role in DMH activities in your position as professor of psychology at ABC. Therefore, upon your filing of the required disclosure after receipt of this opinion, you will qualify for this exemption and you will not be prohibited by s.7 from this employment by DEF.
Section 4(a) of the conflict of interest law prohibits a state employee from receiving compensation from anyone other than the Commonwealth in relation to any particular matter[5] in which the state is a party or has a direct and substantial interest. Section 4(c) prohibits a state employee from appearing as agent, regardless of compensation, for anyone other than the Commonwealth in connection with any particular matter in which the state is a party or has a direct and substantial interest. The Commission has held that referrals of clients by state agencies like DMH to private providers are particular matters of direct and substantial interest to the state, EC-COI-81-129, and, thus, s.s.4(a) and 4(c) restrict the activities of state employees in regards to these referrals. But, the seventh paragraph of s.4 limits the section's application to special state employees to particular matters, a) in which the employee has at any time participated as a state employee, or b) which is or within one year has been the subject of his official responsibility, or c) which is pending before the state agency in which he is serving (in your case, ABC). Since none of these conditions applies to you, s.4 does not prohibit you from employment by DEF.
In conclusion, because you are a special state employee and you are not involved in any way with the activities of DMH the conflict of interest law does not prohibit your employment by DEF pursuant to a DMH contract as long as you comply with the disclosure of s.7.
End Of Decision
