Opinion  EC-COI-81-183

Date:	12/15/1981
Organization:	State Ethics Commission

A geriatric program administrator employed by a private nonprofit corporation under contract with the Department of Mental Health is not a state employee under G.L. c. 268A. Because the Commonwealth did not contract for that individual’s specific services, the definition of “state employee” under §1(g) does not apply to that position or to other employees of the contractor.

Facts

You are currently the geriatric program administrator and a member of the board of trustees of ABC, a private non-profit corporation which provides services under contract with the Department of Mental Health (DMH).

Question

You wish to know whether you are state employee under the conflict of interest law, G.L.c. 268A by virtue of your employment and board membership with ABC.

Answer

The Commission advises that you are not. [1]

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. ABC is comprised of thirty-five board members selected from the (geographic area) community. The board meets on a monthly basis and is headed by a president, who is authorized to sign contracts on behalf of ABC and a five-member executive board. ABC employs approximately (number) employees, some of whom work under your supervision of the ABC geriatric program. The definition of state employee with G.L.c. 268A s.1(g) includes consultants and vendors who perform services for a state agency.[2] EC-COI-81-151. The definition has not previously been extended to employees of consultants or vendors unless the commonwealth intended to contract for the specific services of these particular employees. For example, in EC-COI-80-84, the Commission concluded the partners in a private law firm were state employees under G.L.c. 268A since the contracting state agency specifically contemplated that each of the firm's partners would work on the project for the state. When the commonwealth contracts for the services of a particular employee then the services rendered by that employee make the employee a state employee under G.L.c. 268A. Attorney General Conflict Opinion Nos. 852, 756.

Decision

       Applying these principles to your situation, the Commission advises you that you are not a state employee by virtue of the services which you render for ABC. While it is true that ABC receives funding from DMH, a state agency, DMH does not contract for your particular services and does not specifically contemplate that you will provide these services. See also, EC-COI-81-120. Accordingly, you are not a state employee within the meaning of G.L.c. 268A s.1(g).

End Of Decision  

[1] You also ask whether your husband, who is also an ABC board member, is a state employee under G.L.c. 268A. The principles expressed in this opinion are applicable to your husband as well.

[2] G.L.c. 268A s.1(g) defines "state employee", in pertinent part, as follows: "a person performing services for or holding an office, position, employment, or membership in a state agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis, including membership of the general court and executive counsel."