| Date: | 12/15/1981 |
|---|---|
| Organization: | State Ethics Commission |
A half-time psychiatrist employed by the Department of Mental Health is a special state employee under G.L. c. 268A. The employee may not receive compensation for work funded by DMH, or by the Department of Youth Services if DMH refers clients to those programs. The employee may, however, work for DYS-funded programs that do not involve DMH referrals, provided a disclosure is filed with the Commission under § 7.
You are a psychiatrist employed by the Department of Mental Health (DMH) an a half-time basis, and in that capacity you are assigned to work at Center.
You ask whether the conflict-of-interest law, M.G.L. c.268A, permits you to work on your own time at various other entities which are funded by the state.
The Commission concludes that it permits you to work for some, but not all, of the entities.
Because DMH employs you on a half-time basis, and allows you to engage in other employment during normal working hours, you are at a "special state employee" as that term is used in the conflict of interest law, c.268A s.1(o). Section 4(a) 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. However, a special state employee is only subject to this prohibition 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.
In prior opinions of the Attorney General and of this office, "particular matter" has been determined to include the treatment of patients [2] and the referral of clients to programs,[3] as well as the matters specifically enumerated in the statute. Section 7 of the conflict of interest law prohibits a state employee from knowingly having 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. This section applies somewhat less stringently to special state employees in certain circumstances, which will be discussed below in the context of the particular facts which you have included in your request for an opinion.
Your employment with DMH is carried on at Center which is a component Of a Clinic (Clinic). You also perform some additional services at the latter; however, because you are not compensated for these services (other than by your state salary), your employment there does not violate s.4(a) or s.7 of the conflict of interest law. In addition to your DMH employment, you also act as a consultant Medical Director and Clinical Supervisor at the ABC, a private entity which is under contract with DMH. Your work at ABC consists of DMH-funded services which you provide to a particular unit, (description of Unit's functions). Your work at the unit in ABC violates s.4 of the conflict of interest law, because you are receiving compensation from an entity other than the commonwealth or a state agency, in relation to a particular matter (DMH's contract with ABC and also the treatment of patients) in which a state agency (DMH) is a party and has a direct and substantial interest. Further, the contract in question is pending in the same state agency (DMH) in which you serve as an employee, so that your situation does not fall within those which special state employees are permitted. You also do not qualify for the exemption in the tenth paragraph of s.4,[4] since both the Attorney General and this Commission have only applied this exemption where the special state employee's agency was not involved in the contract award, the contract was competitively bid, and the employee's agency had no formal contract or agreement with the service provider.[5] You also work part-time for another project at ABC which is directly funded by a contract from DMH. For the same reasons discussed above regarding your work at the unit, you are prohibited from receiving the compensation for your work at the project. You also consult part-time for a municipality, as part of your work at the Center. However, because this consultation is part of your DMH job and you receive no extra compensation for it, it does not violate the conflict of interest law.
You also render services to several entities which receive funds from the Department of Youth Services (DYS). Specifically, you work for several programs which operate Out Of ABC, which is under contract with DYS to provide these services. In this employment with ABC you are receiving compensation from someone other than the commonwealth or a state agency, in relation to a particular matter in which a state agency (DYS) is a party and has a direct and substantial interest. However, because in these situations DYS is the contracting state agency, under s.4 you may be permitted to retain these jobs under certain circumstances. Specifically, as long as DMH does not refer clients to these DYS-funded programs, you may work for the latter under s.4. But if your own state agency, DMH, makes such referrals, regardless of whether or not you participate in the referrals personally, then the referral and treatment of those clients are "particular matters" which are pending in the state agency in which you are serving and are of direct and substantial interest to DMH, and you cannot be compensated by ABC for work which results from them. In your position in certain other programs, you also have an indirect financial interest in contracts made by a state agency (DYS). However, this is not prohibited under s.7, which exempts "a special state employee who does not participate in or have official responsibility for any of the activities of the contracting agency [DYS] and who files with the state ethics commission a statement making full disclosure of his interest and the interests of his immediate family in the contract." Thus, although s.7 requires you to file a statement with the commission, detailing your DYS-related work, it does not prohibit that work.
In conclusion, the conflict of interest law prohibits you from rendering any outside services which are funded by DMH, or which are funded by DYS but involve treatment of clients referred by DMH; it permits you to continue rendering services which are funded by DYS as long as you file a disclosure with the Ethics Commission. Where the prohibited services are concerned, you must terminate those services within thirty days to comply with the law with one exception. Your employment with the unit in ABC was reported to the Ethics Commission by DMH as part of a compliance plan, and the commission agreed to delay action an that violation until September 30, 1982, so as to provide for continuity of client care and to allow DMH and ABC to pursue alternatives in the meanwhile. However, that arrangement must also terminate by September 30, 1982, if you are to avoid liability under the conflict of interest law.
End Of Decision
