| Date: | 02/04/1983 |
|---|---|
| Organization: | State Ethics Commission |
A part-time employee of the Massachusetts Council on the Arts and Humanities who is a special state employee would not violate § 7 of the conflict of interest law for being paid after becoming an MCAH employee for limited work out of a grant award issued to him by MCAH prior to becoming an MCAH employee.
The Massachusetts Council on the Arts and Humanities (MCAH) is a state agency created by Chapter 589 of the Acts of 1966 (G.L. c. 15, § 40 et seq.) which makes competitive awards of state funds to cultural organizations to support programs which are judged to be of public benefit.[1] In 1982 you were selected to receive MCAH funds through a project completion award, under the terms of which you are to be paid from the award money for certain work, after that work has been performed. You have not yet been paid any money from this award and have only performed a small part of the work to be funded by it.
Following your selection as a grant recipient, you learned of a part-time job opening on the MCAH staff; you were subsequently interviewed and offered the position, which you later assumed.
Does the conflict of interest law, G.L. c. 268A, permit you to receive grant monies which originate with MCAH, while you are employed by MCAH?
No, except for payments made for work done before you started the MCAH staff position.
As a staff member of MCAH, you are a state employee[2] subject to G.L. c. 268A; because your position is part-time, you are a special state employee as that term is defined in G.L. c. 268A, § 1(o). Section 7 of G.L. c. 268A states: A state employee who has a financial interest, directly or indirectly, in a contract made by a state agency, in which the commonwealth or a state agency is an interested party, of which interest he has knowledge or has reason to know, shall be punished [by a fine or imprisonment or both. This section shall not apply ...' (d) to a special state employee who does not participate[3] in or have official responsibility for any of the activities of the contracting agency and who files with the state ethics commission a statement making full disclosure of his interest and the interests of his immediate family in the contract, or (e) to a special state employee who files with the state ethics commission a statement making full disclosure of his interest and the interests of his immediate family in the contract, if the governor with the advice and consent of the executive council exempts him.
The grant which you have been awarded is funded by MCAH (a state agency) pursuant to a contract between [identifying information deleted] and MCAH. Your award thus constitutes an indirect financial interest in that contract.[4] (Identifying information deleted). Although the grant was decided upon in 1982 you have not actually received the grant monies prior to assuming the job at MCAH and have performed only a part of the work for which the money is to be received. Thus, to an extent, your financial interest in the grant will run concurrently with your state employment.[5] Because you now participate as a staff member in the activities of MCAH, the state agency whose contract funds you grant, you do not qualify for the exemption in clause (d) of § 7. Neither have you been exempted by the governor and the executive council as described in clause (e). Therefore, you cannot receive grant monies which derive from MCAH funds for work done while you are also employed by MCAH.[6]
However, you may receive compensation for work you performed under the grant prior to starting in your state position, i.e. from December 5, 1982, through January 25, 1983. In Attorney General Conflict Opinion No. 104 (June 4,1969) the Attorney General addressed a similar situation and ruled: If, and you indicate you will, you terminate all connection with the [prior matter] prior to your appointment [as a state employee], there would be no violation of [the conflict of interest law]. In this situation the value of your services to the date of [starting the state job] must be liquidated prior to your appointment as a state employee. As long as the amount owed for services rendered prior to your appointment is liquidated before you become a state employee, then the mere fact that payment is deferred would not constitute a violation under the Act. I should caution, however, that the determination of your fee prior to your appointment must be bona fide, for if you were to receive a fee based upon services or events which occurred subsequent to your appointment, you [would be in violation]. (emphasis added) The Commission concludes that the situation addressed in the above opinion is sufficiently analogous to yours to allow you to receive a limited amount of compensation from the Foundation award, pursuant to the conditions set forth by the Attorney General.[7]
End Of Decision
