Opinion  EC-COI-82-134

Date:	09/29/1982
Organization:	State Ethics Commission

Facts

You are the president or a non-profit corporation (Corp.) which has a vendor contract with the Department of Mental Health (DMH) to provide after-school day treatment for children. You perform services under that contract as director of the treatment program called for in the contract. The director's job description and qualifications are general and are not specifically tailored to your credentials. You signed the contract with DMH on behalf of the corporation.

Question

Does the conflict of interest law, G.L. c. 268A, permit you to hire a member of your immediate family to perform services under the DMH contract?

Answer

Yes.

Discussion

Whether or not your course of action is restricted by the conflict of interest law depends, at the outset, on whether you come within that law's definition of a state employee. G.L. c. 268A, § 1(a) defines a state employee as "a person performing services for or holding an office, position, employment, 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 council..." Prior opinions of this commission and of several attorneys general have addressed the question of whether employees of a vendor are state employees, within the above definition. In doing so, they have declined to attribute state employee status to such individuals, following the standard set forth in Atty. Gen. Conf. Op. No. 448:

Assuming that the [state agency] has in fact contracted for the services of the Corporation, rather than of an individual, and assuming also that the Corporation is not a party to its contract with the [state agency] merely to insulate an individual as the real party in interest, it is my opinion that, nothing more appearing, you will not, as a result of the contract, be "performing services for or holding an office, position, employment, or membership in a state agency" under § 1(q), and thus you will not be a state employee.

To determine whether the state has contracted for the services of an individual rather than a corporation, prior opinions have looked to "whether the terms of the contract indicate that an individual's services are being contracted for",^[1] and whether the contract "specifically contemplate[s] that [the particular individual] will provide the services".^[2] One such indication would be where an individual employee were specified in the contract by name, or by description in terms that could not apply to any other individual.

Applying these criteria to the situation at hand, you have indicated that the contract between DMH and Corp. does not call specifically for your personal services, but rather describes the position in general terms. Therefore, you are not a state employee for purposes of the conflict law, and that law does not prohibit your hiring a member of your immediate family to perform services under the contract with DMH.^[3]


End Of Decision

^[1] Atty. Gen. Conf. Op. No. 852 (vendor employee deemed a state employee when contract terms provided for cancellation if he himself failed to perform the duties specified).

^[2] EC-COI-81-183.

^[3] This opinion only addresses the question of whether G.L. c. 268A permits your proposed action and should not be construed as a ruling that the activity is unconditionally allowed. You should verify with the DMH Legal Office that your proposed action does not violate any internal DMH policies or contract terms. The Commission is authorized to issue only opinions interpreting G.L. c. 268A and 268B.