You are employed on a full-time basis as an assistant district attorney in ABC County. You recently taught on a Friday and Saturday in a two-day training program designed for assistant district attorneys and have been offered compensation for your services. The program was sponsored by the Criminal Justice Training Council pursuant to a state-mandated appropriation for such training programs.[1] You wish to know whether the conflict of interest law, G.L.c. 268A, prohibits you from receiving compensation for such teaching. The Commission advises you that it does not, subject to certain limitations set forth below.
As an assistant district attorney, you are a state employee within the meaning of G.L.c. 268A, s.1(q) . EC-COI-79-36. Accordingly, under G.L.c. 268A, s.7, you may not have a financial interest, either direct or indirect, in a contract made by a state agency. Prior to 1980, both the State Ethics Commission and Attorney General interpreted this section to prohibit state employees from entering into a contract with a state agency for services such as part-time teaching. See, EC-COI-79-38; Attorney General Conflict opinion No. 844. However, s.7 has been recently amended by Chapter 303 of the Acts of 1980 and now contains the following exemption:
This section shall not prohibit a state employee from teaching in an educational institution of the commonwealth; provided, that such employee does not participate in, or have official responsibility for, the financial management of such educational institution; and provided, further, that such employee is so employed on a part-time basis. Such employee may be compensated for such services, notwithstanding the provisions of section twenty-one of chapter thirty.
In EC-COI-81-39, the Commission concluded that services rendered in conducting law enforcement training programs for the Council constituted "teaching in an educational institution of the commonwealth" in view of the comparability of the Council's programs with those provided by other more traditional public educational institutions. The Commission's conclusion rested on the fact that the Council's programs were funded by the commonwealth pursuant to a statutory mandate and were administered by a state agency. The assistant district attorney training program would similarly fall within the aforementioned exemption inasmuch as the program is funded by the Commonwealth pursuant to a statutory mandate and sponsored by the Council, a state agency.[2]
You should be aware, however, that G.L.c. you from using your official position to secure an unwarranted privilege or from pursuing a course of conduct which will raise suspicion among the public that you are likely to be engaged in violations of your trust. See, G.L.c. 268A secs. 23 (d), (f). On previous occasions the Commission has advised state employees that s.23 prohibits their receipt of payment for speaking engagements where state time is taken for the preparation and delivery of their presentation. EC-COI-81-46; EC-COI-80-28. These opinions are consistent with the provisions of G.L.c. 29 s.31 which has been interpreted to ban the receipt of additional compensation by state employees unless the extra services are performed outside the usual hours of employment and are not required in the performance of the employee's regular duties. See Op. Atty. Gen. 699, 700-701 (1970). Accordingly, you may receive compensation for the Friday portion of the training program only if (a) you did not receive compensation for your regular assistant district attorney responsibilities for that day, or (b) you chose to be absent under vacation leave or personal leave for that day. With respect to the Saturday portion of the training program, the Commission advises you that you may receive compensation for your services for that day since you are not required to perform your regular assistant district attorney duties on Saturdays.
End of Decision
