Facts
You are currently employed on a part-time basis as a consultant to the Department of Mental Health (DMH) at a State Hospital. In that capacity you are involved in planning and establishing mental health programs.
Question
You would like to know whether you are a state employee under the conflict of interest law and, if so, what are the limitations which the law places on your providing staff training and client consultation to private vendors who receive funds from DMH.
Answer
The Commission advises you that you will be subject to the restrictions set forth below.
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. In your capacity as a consultant to DMH, you are a state employee within the meaning of G.L.c. 268A, s.1(q). In view of your part-time status, you are a special state employee under G.L.c. 268A, s.1(o) and are, therefore, subject to the provisions of the conflict of interest law, albeit in a less restrictive way. G.L.c. 268A s.7 prohibits state employees from having a direct or indirect financial interest in a contract made by a state agency. However, as a special state employee, you are prohibited from having such an interest only where you participate [1] in or have official responsibility [2] for any of the activities of the contracting agency, provided that you file with the Commission a statement making full disclosure of your interest in any state contract. G.L.c. 268A, s.7(d). Further, even if you do participate in or have official responsibility for any of the activities of the contracting agency, you may have a financial interest in a contract made by that agency if you file the required disclosure with the Commission and if the Governor, with the advice and consent of the Executive Council, exempts you. See, G.L.c. 268A, s.7(e); EC-COI-81-149.
Accordingly, the Commission advises you that you may accept private compensation for training as long as the funds are not attributable to contracts made by DMH since you participate in DMH activities as a consultant. See., EC-COI-81-165. If you wish to be paid for your training services out of funds attributable to a DMH contract, then you could receive such compensation only if you complied with the exemptions in secs.7(d) or (e) described above. Section 4 of G.L.c. 268A is also relevant to your situation. Under s.4(a) you are prohibited, as a special state employee, from receiving compensation from anyone other than the commonwealth in relation to a particular matter [3] of direct and substantial interest to the commonwealth where the particular matter is one (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 which you are serving. G.L.c. 268A, s.4, 116. 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.
Decision
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 cases pending at your State Hospital. See, EC-COI-80-66. You should, therefore, carefully review the referral source of clients for whose cases you intend to provide consultation and refrain from receiving compensation in accordance with the principles discussed above. You should also be aware that G.L. c. 268A prohibits state employees from accepting other employment that will impair their independence of judgment in the exercise of their official duties, or from giving, by their conduct, reasonable basis for the impression that any person can improperly influence them or unduly enjoy their favor in the performance of those duties. It further prohibits state employees from using their official positions to secure unwarranted privileges for themselves or from pursuing a course of conduct which will raise suspicion among the public that they are likely to be engaged in violations of their trust. Keeping these principles in mind, you should observe the following requirements with respect to your training consultations:
1. State supplies or facilities not available to the general public should not be used in the preparation or delivery of the training;
2. State time should not be taken for the preparation or delivery of the training;
3. Presenting the training should not be part of your official duties at the State Hospital; and
4. Neither the sponsor of the training nor the source of the compensation, if different, should be a person or entity with which you might reasonably expect to have dealings in your official capacity at the State Hospital. See, EC-COI-81-46; 80-28.
If questions should subsequently arise over the application of the provisions of G.L. c. 268A to your conducting workshops at particular institutions or agencies, you should renew your advisory opinion request with the Commission at that time.
End Of Decision
