| Date: | 12/15/1981 |
|---|---|
| Organization: | State Ethics Commission |
A newly appointed Deputy Director of a state agency may continue under a prior consulting agreement with a national organization to present at out-of-state workshops, provided the organization has no dealings with the agency. G.L. c. 268A, §§ 3, 4, and 23 do not prohibit the activity so long as state time and resources are not used and the consulting work is unrelated to official duties.
You have been offered the position of Deputy Director of a state agency (ABC). However, you presently have a consultant contract with a national organization (ORG) to provide, for compensation, presentations concerning issues in the same field of interest as the work of ABC at six workshops held nationwide (none in Massachusetts) to be attended by members of ORG or their staff.
You ask whether, in light of this consulting agreement, you may accept the Deputy Director position.
The Commission concludes that you may.
In rendering this opinion, the Commission has relied on the facts as you have stated them and has not made any independent investigation of those facts. As full-time Deputy Director Of ABC you will be a state employee for purposes of the conflict of interest law. G.L. c. 268A, s.1(q). Section 3(b) of that law prohibits a state employee from seeking, accepting or receiving anything of substantial value for or because of his official acts or acts within his official responsibility performed or to be performed, it is presumed that your compensation for these workshops will be of substantial value as that term is used in the statute since it has been held that as little as $50 satisfies that term. See, Commonwealth v. Famigletti, 4 Mass. App. 584 (1976). However, you have only recently been offered the Deputy Director's position and have already entered into the consulting arrangement with ORG. Also, if you accept the offered position, you will not have any authority to affect ORG in any way through your official acts. Therefore, the compensation, even if something of substantial value, is clearly not for or because of your official acts and, therefore, s.3(b) does not apply. Section 4(a) prohibits a state employee from receiving compensation from anyone other than the Commonwealth in relation to a "particular matter"[1] in which the state is a party or has a direct and substantial interest. The particular matter (or matters) for which you would be receiving compensation is the workshop at which you make a presentation. The state is neither a party to nor has a direct and substantial interest in these workshops. Therefore, once you become a state employee, s.4(a) will not prohibit you from being compensated for your participation in these workshops. Section 23 of the conflict law provides standards of conduct which are applicable to all state, county and municipal employees. Section 23(a) prohibits a state employee from accepting other employment which will impair his independence of judgment in the performance of his official duties. As noted above, your lack of authority over ORG should insulate your official duties from any effect resulting from your consulting arrangement. Compare, EC-COI-81-107. Section 23(d) prohibits a state employee from using his official position to gain unwarranted privileges or exemption for himself. In accordance with this and the other provisions of the conflict of interest law, the following conditions should be complied with:
1) State supplies or facilities not available to the general public are not used in the preparation or delivery of the presentation;
2) State time is not used for preparation or delivery of the address;
3) Delivering the speech is not part of your official duties;
4) Neither the sponsor of the address, nor the source of the compensation, if different, is a person or entity with which you might reasonably expect to have dealings in your official capacity.
As long as you are careful to comply with these requirements you will not violate the provisions of s.23. See, EC-COI-80-28.
In conclusion, should you accept the Deputy Director position, you will not be prohibited by the conflict of interest law from participating.in the workshops presented by ORG, nor from being compensated for that participation.
End Of Decision
