Opinion  EC-COI-82-2

Date:	01/13/1982
Organization:	State Ethics Commission

May a special state employee serve as a consultant for a private organization? 

EC-COI-82-2

All identifying information has been deleted from this opinion as required by Chapter 268B, § 3(g).

You currently serve x days per week as a senior researcher for the Joint Legislative Committee on ABC (Committee). In that capacity you organize and research legislation which has been referred to the Committee. You have recently received an offer to consult for the DEF Institute (DEF) of the GHI. DEF is examining the implementation of federal and state programs for ( description of program omitted) as DEF is seeking an in-state consultant to provide background developments within Massachusetts. Your activities in this role would involve the preparation of seven monthly reports which would identify major issues, interest groups and changes in policies, personnel and laws during that period. You state that you do not handle the Committee staff review or research on any bills filled by GHI. You wish to know whether the conflict of interest law, G.L. c. 268A, permits you to accept the consultant offer. The Commission advises you that it does.

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.

In your capacity as an employee of the General Court, you are a state employee within the meaning of G.L. c. 268A, § 1(q). EC-COI-81-60. In as much as you are employed in a position for which you may engage in private or personal work x day per week, you are a special state employee under G.L. c. 268A, § 1 (o) and are subject to the prohibitions of G.L. c. 268A, albeit in a less restrictive way.

Under § 4(a) you are prohibited, as a special state employee from receiving compensation from anyone other than the Commonwealth in relation to a particular matter [1] of direct and substantial interest to the Commonwealth where the particular matter is one (a) in which you have at any time participated [2] as a state employee, or (b) which is or within one year has been a subject of your official responsibility, [3] or (c) which is pending in the state agency which you are serving. G.L. c. 268A, § 4, ¶ 6. While your consultant contract with DEF would constitute a particular matter of direct and substantial interest to the Commonwealth, the contract does not fall within any of the three aforementioned prohibited categories. Specifically, you neither participate in nor have official responsibility, as a state employee, for the activities which the consultant arrangement envisions, nor is the contract pending before the Committee or General Court.

G.L. c. 268A, § 6 prohibits you from participating, as a state employee, in any particular matter in which a business organization which employs you has a financial interest. Further, should such matters come before you which would otherwise require your participation, you must file with your appointing official and the Commission a written disclosure of the nature and circumstances of the particular matter and the financial interest therein. The appointing official may then either (1) assign the particular matter to another employee, or (3) assume responsibility for the matter himself, or (3) make a written determination to be filed with the Commission that the interest is not so substantial as to be likely to affect the integrity of the service which the Commonwealth may expect from you, in which case you would be permitted to participate in the matter. The enactment of special legislation is a particular matter under § 1(k). EC-COI-81-187; 81-81. You should, therefore, refrain from participating in the enactment of any special legislation filed by DEF or GHI.

G.L. c. 268A, § 23(a) is also relevant to your situation. Section 23(a) prohibits you from accepting other employment which will impair your independence of judgment in the exercise of your official duties. The Commission has applied § 23(a) to prohibit state employees from compensation arrangements involving private parties with whom the state employees deal in their official capacity. See, EC-COI-81-134; 81-133; 81-73 . The Commission advised you, however, that your consultant arrangement with DEF would not violate § 23(a) since you have no dealings with them as a state employee.

[1] G.L. c. 268A, § 1(k) defines particular matter as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the court."

[2] For the purposes of G.L. c. 268A, "participate" is defined as a participate in agency action or in a particular matter personally and substantially as a state . . . employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, § 1(j).

[3] For the purposes of G.L. c. 268A, "official responsibility is defined as the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L. c. 268A, § 1(i).