Opinion  EC-COI-81-147

Date:	11/17/1981
Organization:	State Ethics Commission

A part-time state employee may also serve as a consultant to the Massachusetts Rehabilitation Commission, provided certain conditions are met. Because the employee is a special state employee and any work performed for MRC is on behalf of a state agency, G.L. c. 268A, § 4 does not prohibit the arrangement. The employee must also file a disclosure of their financial interest in the MRC contract to qualify for the § 7 exemption, as they do not participate in or have official responsibility for MRC activities.

Facts

You are a part-time employee at ABC institution. You are also a consultant to the Massachusetts Rehabilitation Commission (MRC). MRC receives referrals of and provides services to DMH clients.

Question

You ask whether the state conflict or interest law, G.L.c.268A, prohibits this dual employment.^[1]

Answer

The Commission concludes it does not.

Discussion

In rendering this opinion, the Commission has relied on the facts as you have stated them and has not conducted any independent investigation of those facts. ABC is within the authority of DMH, and, therefore, is a state agency. By virtue of your employment at the ABC, you are a state employee for purposes of the conflict of interest law. See, G.L.c.268A, s.1(q). However, since you are not an elected official and, as a part-time employee, are allowed to engage in outside employment during normal working hours, you are a special state employee. G.L.c.268A, s.1(o)(2)(a). Section 4 of the conflict law prohibits you from receiving compensation from or acting as agent for anyone other than the Commonwealth in relation to any "particular matter"^[2] in which the state is a party or has a direct and substantial interest. As a "special employee", however, this prohibition only applies to you concerning particular matters a) in which you have at any time participated as a state employee, or b) which is or within one year has been a subject of your official responsibility, or c) which is pending in the state agency in which you are serving. Referrals from DMH are particular matters of direct and substantial interest to the state, EC-COI-81-130. But since any compensation you receive or action you take in relation to these referrals would be on behalf of a state agency, MRC, you will not be representing anyone other than the Commonwealth and s.4 will not apply. Section 7 prohibits a state employee from having a financial interest in a contract made by a state agency. Your consultant contract with MRC would be such a contract and your compensation a financial interest in it. The third paragraph of s.7 exempts from this prohibition a special state employee who does not participate in or have official responsibility for any activities of the contracting agency, and who files a statement with the Commission making full disclosure of your interest and the interests of his immediate family in the MRC contract. You indicate that MRC does not receive any referrals from ABC. Therefore, as an ABC employee you are not involved with any activities of the MRC and are exempt from s.7, provided that you file the disclosure statement described above.

Decision

In conclusion, the conflict of interest law does not prohibit your employment by both ABC and MRC.

End Of Decision

[1] The Commission is empowered to render advisory opinions on the requirements of the conflict of interest law. G.L.c.268B, s.3(g). The Commission is not authorized to answer your question concerning your permissible hours of outside employment.

[2] For the purposes of G.L.c. 268A, "particular matter" is defined as any judicial or other proceeding, application submission, request or a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court. G.L.c.268A, s.1(k).