You currently serve on a half-time basis as an employee of the Department of Mental Health (DMH) and are assigned to the ABC Mental Health Center. You also are employed as a consultant on a regular basis under contract with the Massachusetts Rehabilitation Commission (MRC), DEF Clinic (DEF) and GHI Center (Center).
You wish to know whether the conflict of interest law, G.L. c. 268A, permits you to continue these consulting arrangements.
The Commission advises you that it does, subject to the limitations set forth 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.
1. Massachusetts Rehabilitation Commission
In your capacity as a DMH employee, you are a state employee within the meaning of G.L. c. 268A, s.1(q). As a state employee, you would be prohibited by G.L. c. 268A, s.7 from having a financial interest, directly or indirectly, in a contract made by a state agency. However, in view of your status as a part-time employee of DMH, you are a special state employee within the meaning of G.L. c. 268A, s.1(o) and are, therefore, eligible for the exemption under s.1(d) provided that you "do not participate in or have official responsibility for any of the activities of the contracting agency and file with the State Ethics Commission a statement making full disclosure of your interest and the interests of your immediate family in the contract." You state that you periodically provide consultation to the staff of two offices of the MRC pursuant to a contract with the MRC. Your compensation is paid pursuant to MRC funds and you do not participate or have official responsibilities as a DMH employee in the activities of MRC. Section 7 will, therefore, not prohibit your financial interest in the MRC contract since you would comply with the conditions for exemption under s.7(d) following your filing of a disclosure statement with the Commission. EC-COI-81-147.
2. DEF Clinic
As a state employee, you would be prohibited under G.L. c. 268A, s.4(a) from receiving compensation from any party other than the commonwealth or a state agency in relation to any particular matter[1] in which the commonwealth or a state agency is a party of has a direct and substantial interest. However, as a special state employee, you are subject to s.4(a) only in relation to a particular matter (a) in which you have at any time participated 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. G.L. c. 268A, s.4, par.6. You state that you consult with the DEF staff on a periodic basis. Your salary from DEF is derived from fees from private sources and is not attributable to state funds or contracts with state agencies. Further, the cases for which you consult are self-referred and are not referred to DEF by state agencies or courts. On the basis of these facts, the Commission advises you that you may continue your consulting arrangement with DEF since the cases for which you are receiving compensation are not particular matters of direct and substantial interest to the commonwealth or a state agency. Compare, EC-COI-81-138.
3. GHI Center
You also serve as a consultant to the Center and provide clinical expertise on specific cases with the Center staff. Your compensation from the Center is derived from a contract between the Department of Public Welfare and the Center. Client referrals under your program come from private sources such as psychiatrists as well as DMH. The Commission has previously concluded that client referrals by a state agency to a private organization constitute particular matters of direct and substantial interest to the commonwealth because of the responsibility of the commonwealth for the client's treatment and welfare. See, EC-COI-81-43; 80-99; 79-5.
In view of your status as a special state employee, you are prohibited from receiving compensation in relation to referrals in which (a) you have participated in your DMH capacity, (b) are or were under your official responsibility at DMH during the prior year, or (c) are pending within DMH. This limitation will apply to cases pending in any agency within DMH and not merely to those pending at the ABC Mental Health Center. See, EC-COI-80-66. You should, therefore, carefully review with the Center the referral source of clients for whose cases you are assigned to provide consultation and refrain from receiving compensation in accordance with the principles discussed above.
End Of Decision
