Opinion  EC-COI-81-94

Date:	06/23/1981
Organization:	State Ethics Commission

A community college faculty member may not, pursuant to G.L. c. 268A, § 7, be paid by a non-profit corporation to provide services under a contract between the non-profit and the Department of Environmental Management because the funds originate from a state agency contract. The faculty member is not a “special state employee” under the statute due to contractual restrictions on outside employment during normal working hours, and no other exemption applies.

Facts

You are currently a faculty member of AB Community College (ABCC). During the past few years, you have served on an advisory board in Municipality X which has made recommendations to the Commonwealth Department of Environmental Management (DEM) over the formation of a state heritage park. DEM recently selected Municipality X as the site for a heritage park and has made state funds available for the construction and management of the park. DEM has asked you whether you would be interested in forming a non-profit corporation for the purpose of developing an initial heritage park management agreement and budget with DEM and for managing the park pursuant to this agreement. The compensation for your services would be paid by the non-profit corporation pursuant to a contract between DEM and the corporation.

Question

You ask whether, consistent with the conflict of interest law, G.L. c. 268A, you may receive compensation for the services which you have been asked to render for DEM.

Answer

The Commission concludes that you may 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. As a ABCC faculty member, you are a state employee within the meaning of G.L. c. 268A, § 1 (q). Under G.L. c. 268A, § 7, you are prohibited from having a financial interest in a contract made, by a state agency in which the commonwealth or state agency is an interested party. The purpose of this prohibition is to prevent a state employee from influencing the awarding of contracts by any state agency in a way which might be financially beneficial to the employee. Because it is impossible to distinguish employees who are in a position to influence the awarding of a contract from those who are not in such a position, the law treats all state employees as though they have influence. See, W.G. Buss, "The Massachusetts Conflict of Interest Statute: An Analysis", 45 B.U. Law Rev. 299, 368, 374 (1965).

       On the basis of information contained in your advisory opinion request, it is clear that you would have a financial interest in a contract made with DEM, a state agency.See,G.L. c. 268A, s.1(p). The fact that your compensation would be paid by a non-profit corporation rather than by DEM does not diminish the financial interest which you would have in the contract with DEM since you will be paid with funds which the corporation would receive from DEM. See, EC-COI-81-40. Therefore, unless you fall within one of the exemptions in G.L. c. 268A, § 7, you will be prohibited from receiving compensation pursuant to the contract with DEM while remaining an employee of ABCC. The third paragraph of § 7 provides that the prohibitions of § 7 do not apply to a special state employee^[1] who does not participate in or have official responsibility for any of the activities of the contracting, agency and who files a statement with the Commission making full disclosure of the financial, interest. However, on the basis of a review of your employment contract with ABCC as well as other information which, you have provided, the Commission concludes that you are not a special state employee. Under the terms of your collective bargaining agreement, you are specifically prohibited from performing and receiving compensation for outside employment during normally scheduled working hours.^[2] Additionally, you confirm that you are not permitted to work for private compensation until the conclusion of your community college responsibilities at 4:30 P.M. These limitations distinguish your situation from the facts of EC-COI-81-64 where the Commission concluded that a state college teacher was a special state employee. The determination of whether an employee is a special state employee is dependent on the unique facts of each case. 

Decision

       The Commission's conclusion in your case is based on the clear expectation from your employment contract that you may not engage in private employment during normal working hours. Inasmuch as none of the remaining exemptions within § 7 are applicable to you, the Commission advises you that you may not receive compensation for the services which you have been asked to render for DEM.

^[1]G.L. c. 268A, § 1(o) defines special state employee, in relevant part, as an employee "who is not an elected official and (a) occupies a position which, but its classification in the state agency involved or by the term of the contract or conditions of employment, permits personal or private employment during normal working-hours ..."

^[2]Article XII of the current collective bargaining agreement between the Massachusetts Board of Regional Colleges and the Massachusetts Community College Council/ Massachusetts Teachers Association/NEA provides as follows:

F. Outside Employment Full-time employment by the Board shall be considered the primary employment of each faculty member. Outside employment is work for which compensation is received and which is not the normal duties and responsibilities assigned to a faculty member as an employee of the Board. Outside employment which required a faculty member's absence from the College during his/her normally scheduled working hours is presumed to interfere with the performance of the duties and responsibilities of that faculty member and is hereby prohibited.

End Of Decision