Opinion  EC-COI-81-157

Date:	11/24/1981
Organization:	State Ethics Commission

A full-time state employee may not work for a private nonprofit organization that is under contract with their state agency. Because the employee’s compensation would be derived from a state contract, G.L. c. 268A, §§ 4 and 7 prohibit the arrangement as both compensation in connection with a state matter and a financial interest in a state contract. The employee must terminate either their state employment or the private consulting arrangement to comply with the law.

Facts

You are employed full-time by a Department of the state (ABC), where you are a consultant specializing in a certain subject matter.

Question

You ask whether the state conflict of interest law, G.L. c.268A, prohibits you from also working part-time as a consultant to DEF, Inc. (DEF), a private non-profit organization which is under contract with ABC to perform certain services.

Answer

The Commission concludes that it does.

Discussion

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. As a consultant within ABC, you are a state employee for the purposes of the conflict of interest law. G.L. c.268A, s.1(q). Section 4(a) of the conflict of interest law prohibits a state employee from directly or indirectly receiving compensation from anyone other than the state, if that compensation is paid in relation to a particular matter^[1] in which the commonwealth or a state agency is a party or has a direct and substantial interest. You are being paid by DEF pursuant to its contract with ABC (a state agency). By definition, the contract is a "particular matter." (Identifying citations deleted.) Thus, your compensation from DEF violates s.4, irrespective of whether you have any contracting responsibilities at ABC. Because the compensation you receive from DEF originates from its contract with ABC, it could be construed as payment to you from the state. While this view might help you satisfy the restrictions of s.4, it would still put you in violation of s.7, which states: A state employee who has a financial interest, directly or indirectly, in a contract made by a state agency, in which the commonwealth or a state agency is an interested party, of which interest he has knowledge or has reason to know, shall be punished [by a fine or imprisonment or both].

Decision

Your receipt of money from DEF for helping it perform its contract with ABC would give you a financial interest in a contract made by a state agency. You do not qualify for any of the exemptions in s.7. Section 7 also states that, in the absence of an exemption, you can only avoid liability for such a violation by terminating your financial interest within thirty days after you learn of it. Thus, you must terminate your employment with either ABC or DEF to be in compliance with the law. Should you choose the former, your activities for DEF would still be restricted under the conflict of interest law and you should seek a further opinion from the Commission. See G.L. c.268A, s.5.

End Of Decision

[1] For the purposes of G.L. c.268A, "particular matter" is defined as any judicial or other proceeding, application, submission, request for 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).