Opinion  EC-COI-83-16

Date:	02/04/1983
Organization:	State Ethics Commission

A state Department of Public Works employee who is also privately employed by a company as a land surveyor is prohibited under § 4 of the conflict of interest law from being paid by or representing the company in a surveying contract with the DPW.

Facts

You are an employee of the state Department of Public Works (DPW). You also work part-time for XYZ, a private land surveying company. You currently do surveys of privately-owned land on a fee- for-service basis for XYZ. You are listed in XYZ brochures as an associate member of the firm, but you have no involvement in the management of the corporation.

The DPW requires that companies bidding to furnish survey crews to the DPW have a surveyor associated with the company. XYZ would like to submit bids to the DPW to supply survey crews. You would be XYZ's surveyor for these surveys and would get a percentage of the firm's revenue.

Question

1. May you serve as the surveyor for XYZ in connection with surveys conducted for the DPW?

2. If not, may you continue to perform surveys of private land on a fee-for-service basis?

Answer

 1. No.

 2. Yes.

Discussion

As an employee of the DPW, you are a state employee as defined in the conflict of interest law. G.L. c. 268A, § 1(q). Section 4(a) of the conflict law prohibits you from being compensated by anyone other than the state in connection with a particular matter^[1] in which the state is a party or has a direct and substantial interest. The surveys performed by XYZ for the DPW would be particular matters in which the state is a party. If you were to receive a percentage of XYZ's fee for acting as surveyor in connection with such a survey, you would violate § 4(a) by receiving compensation from someone other than the state in connection with such a particular matter. Therefore, you are prohibited from being paid by XYZ for any services rendered as a surveyor in connection with DPW surveys.^[2] Moreover, you should not be listed as XYZ's surveyor in its bids to the DPW. Surveys of private property, however, are not particular matters in which the state is. a party or has a direct and substantial interest. Therefore, you would not be prohibited from continuing to perform such surveys on a fee-for-service basis for XYZ.

 

End Of Decision 

^[1] For the purposes of G.L. c. 268A. "particular matter" is defined 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 an enactment of general legislation by the general court. G.L. c. 268A. §1(k).

^[2] Section 7 of G.L. c. 268A prohibits you from having a financial interest in a contract made by a state agency. This section would also prohibit you from receiving a percentage of XYZ's fee resulting from its contract with the DPW.