Introduction
Dear (Name Omitted),
You currently serve on a full-time basis as a mental health aide for the Department of Mental Health (DMH) and are assigned to a state institution. You also are employed outside of normal DMH working hours by ABC, a voluntary non-profit organization which is involved in the treatment, education and rehabilitation of autistic and similarly impaired children. ABC receives referrals and funding from both state and municipal sources.
In rendering this opinion, the Commission has relied on the facts as you have stated them and has not made any independent investigation of those facts.
Question
You wish to know the extent to which the conflict of interest law, G.L. c. 268A, limits your activities at ABC.
Answer
The Commission advises you that you may continue your employment with ABC, subject to the limitations set forth below.
Discussion
As a full-time DMH employee, you are a state employee for purposes of the conflict law. See, G.L. c. 268A, § 1(q). As such, § 7 of G.L. c. 268A prohibits you from having a financial interest, either direct or indirect, in a contract in which the Commonwealth or a state agency is an interested party. Any arrangement by which the Department of Mental Health (DMH), Medicaid, the Division of Special Education or any other state agency or program provides funding for services which you would provide would be a contract by a state agency in which you would have a financial interest. The fourth paragraph of § 7 provides an exemption in cases where you would be providing services to a recipient of public assistance, such as Medicaid. If the recipient had the right to and did, in fact, choose you as provider of these services and the services are provided in accordance with a schedule of charges promulgated by the Department of Public Welfare (DPW), then the prohibition of § 7 does not apply. Unless the exemption is applicable, however, (and its terms should be strictly adhered to), you are prohibited by § 7 from receiving compensation for work as an ABC employee where that compensation is derived, either directly or indirectly, from a state agency or program.
Although § 7 would not apply to cases wherein the source of your compensation is private insurance, personal funds or municipal funding, § 4(a) of the conflict law places some restriction on your consulting in these cases. That section prohibits a state employee from receiving compensation from anyone other than the state in relation to a particular matter in which the state is a party or has a direct and substantial interest. Referrals by state agencies such as DMH to private providers are particular matters of direct and substantial interest to the state. EC-COI-81-105. Therefore, § 4(a) would prohibit you from receiving compensation as a result of such a referral even though that compensation does not come from state funds.[1]
Conclusion
In conclusion, the conflict of interest law does not prohibit you from working for ABC. However, the provisions of §§ 4 and 7 combine to limit your employment to 1) non-referral, cases funded by private insurance, personal funds, municipal funds, or public assistance based on a DPW fee schedule; and 2) cases referred to you by a state agency and funded by public assistance based an a DPW fee schedule.
End of Decision
