Opinion  EC-COI-81-179

Date:	12/08/1981
Organization:	State Ethics Commission

A speech therapist employed half-time by a state school under the Department of Mental Health is a special state employee under G.L. c. 268A. The employee may not accept paid positions with agencies under contract with DMH to provide the same services, as such work would involve compensation in connection with contracts in which the Commonwealth has a direct and substantial interest.

Fact(s)

You are a speech therapist at a state school (SS) a facility of the Department of Mental Health (DMH).

Question

You ask whether the conflict of interest law, M.G.L.c. 268A, permits you to accept the position of speech consultant with several agencies which are vendors to DMH.

Answer

The Commission concludes that it does not.

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. Your position at SS is half time, twenty hours a week. Because the terms of your employment there apparently permit private employment during normal working hours, you are a "special state employee" as that term is defined in c. 268A s.1(o). You would like to work on your own time for two entities, ABC and XYZ. You have stated that these entities are under contract with DMH to provide the services which you would be performing, and that, to your knowledge, you would be paid out of the DMH contract money. Section 4(a) of the conflict of interest law prohibits a state employee from directly or indirectly receiving compensation from anyone other than the commonwealth or a state agency 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 will note that a contract is included in the definition of "particular matter". The contracts under which you would be performing services at these entities are contracts in which DMH, a state agency, is a party. Thus, you are prohibited from being paid in relation to work under these contracts. Although there are some exemptions in s.4 for special state employees, they do not apply where the contract in question is pending in the same state agency in which the employee already works, as in your case.[2]

Decision

       In conclusion, as a special state employee at DMH, you may not accept outside paid employment with vendors who are under contract with DMH to provide the services which you would perform.

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).

[2] "A special state employee shall be subject to [the prohibition] only in relation to a particular matter (a) in which he has at any time participated as a state employee, or (b) which is or within one year has been a subject of his official responsibility, or (c) which is pending in the state agency in which he is serving. Clause (c) of the preceding sentence shall not apply in the case of a special state employee who serves on no more than sixty days during any period of three hundred and sixty-five consecutive days." (emphasis added)