| Date: | 07/01/1982 |
|---|---|
| Organization: | State Ethics Commission |
A state employee who has responsibility for evaluating the performance of state programs may act as a consultant in a study for an outside private party because the contract is not a matter in which the state is a party or has a direct and substantial interest.
You currently serve on a full-time basis as the Director of a state agency (Agency). The Agency was formed in (date) pursuant to (statute cited) and is responsible for performance evaluation of state programs. Among the areas presently under examination by the agency are (subjects enumerated). You have been approached by a private institution, ABC to provide preliminary consultation for a feasibility study over its possible merger with a municipal institution, DEF. The arrangement would involve after-hours consultation for a three-month period.
You wish to know whether the conflict of interest law G.L. c. 268A, permits you to consult with ABC under this arrangement.
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 agency Director, you are a state employee within the meaning of G.L." c. 268A, s.1(q). As a state employee, you are prohibited by G.L. c. 268A, s.4(a) from receiving compensation from someone other than the Commonwealth in relation to a particular matter [1] in which the Commonwealth or a state agency is a party or has a direct and substantial interest. While your consultant contract with ABC would be a particular matter under G.L. c. 268A, s.1(k), your receipt of compensation under this contract would not violate s.4(a) because the Commonwealth is neither a party to nor has a direct and substantial interest in the contract. However, should the scope of your consultant arrangement expand to include issues of state regulation or the feasibility of merger with a state, as opposed to a municipal, institution, then the prohibitions of s.4 would apply. You should therefore renew your request for a further opinion should such a situation arise.
You should also be aware that G.L. c. 268A, s.23 imposes additional restrictions on your outside activities. In particular s.23(a) prohibits you as a state employee from accepting other employment which will impair your independence of judgement as a state employee. Additionally, s.23(e) prohibits you from, by your conduct, giving reasonable basis for the impression that any person can improperly influence you or unduly enjoy your favor in the performance of your official duties or that you are unduly affected by the kinship, rank, position or influence of any party or person. In your role as agency Director, you are responsible for directing the performance evaluation of state agencies. To avoid raising questions over the integrity of the Agency's proceedings, you should refrain from accepting consulting arrangements with private parties or entities whose activities are the subject of the Agency's oversight responsibilities. Inasmuch as you state that ABC is neither presently nor in the near future expected to be within the scope of the Agency's oversight, the limitations of s.23 will not apply to your acceptance of a consultant contract with ABC. However, you should be mindful of the s.23prohibitions when considering other private employment arrangements.
End Of Decision
